Re VBJ and Australian Prudential Regulation Authority - [2005] AATA 642

CATCHWORDS – PRACTICE AND PROCEDURE – stay order – stay of operation and/or implementation of decision disqualifying person from being a trustee, investment manager or custodian of a superannuation entity – whether requirements of request for reconsideration complied with – matters to be taken into account in considering stay – whether appropriate to take account of personal commercial interests or interests affecting a person’s reputation in considering stay – whether stay can affect statutory obligation to publish – whether publication necessary to protect the interests of the public – implementation of decision stayed.

PRACTICE AND PROCEDURE – confidentiality order – whether hearing and material before Tribunal should be confidential to secure effectiveness of internal review – confidentiality granted.

Administrative Appeals Tribunal Act 1975 ss. 35, 27, 29 and 41
Financial Sector Legislation Amendment Act (No.1) 2000, s. 3, Schedule 3, item 14
Migration Act 1958 ss, 476, 477, 482, 500, 501 and 501G
Social Security Act 1991 s. 1222A
Superannuation Industry (Supervision) Act 1993 ss. 3 10, 52, 120, 120A, 121, 344 and 345

Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378; 33 AAR 446
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
Long v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 159
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355
Re Bishop and Secretary, Department of Social Security (1989) 18 ALD 661
Re Commonwealth of Australia and Quirke (1986) 9 ALD 92
Re Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216
Re Edwards and Civil Aviation Safety Authority (2003) 74 ALD 572
Re Kanina Banner Pty Ltd v Minister for Health and Ageing (2002) 66 ALD 663
Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 482
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Webber and Secretary, Department of Social Security (1989) 18 ALD 422
Smith v Land & House Property Corporation (1884) 28 Ch D 7

DECISION AND REASONS FOR DECISION [2005] AATA 642

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2005/519
GENERAL ADMINISTRATIVE DIVISION     )

Re “VBJ”

Applicant

AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  20 June 2005
Place:  Melbourne

Decision:The Tribunal:
1.orders that the implementation of the respondent’s reviewable decision dated 9 June 2005 be stayed until the respondent has determined VBJ’s request for review to the extent that it may not:
(1)publish in the Commonwealth Government Gazette particulars of the notice given to VBJ under s. 120(6) of the Superannuation Industry (Supervision) Act 1993; and
(2)make any public disclosure regarding its decision; and

2.directs that, in the Tribunal:
(1)the applicant be described by the letters “VBJ” for the purpose of the application;
(2)publication of the name of the applicant and of any material tending to identify him, either of the entities described in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] AATA 642
Decision Date: 20 June 2005

CaseChat Overview and Summary

The case of Re VBJ and the Australian Prudential Regulation Authority (APRA) involved a legal dispute concerning the review of a disqualification order made by APRA under the Superannuation Industry (Supervision) Act 1993 (SIS Act). APRA had disqualified an individual from managing a superannuation fund, and the individual sought review of this decision under the Administrative Appeals Tribunal (AAT) Act. The matter came before the Federal Court, where the court had to determine whether the AAT had correctly exercised its discretion to grant a stay of the disqualification order.

The central legal issues before the court were whether the AAT properly considered the relevant statutory criteria under section 41(2) of the AAT Act when deciding whether to grant a stay of the disqualification order, and whether the AAT had adequately balanced the personal commercial interests and reputational concerns of the individual against the public interest in regulating the superannuation industry. The court also had to assess the appropriate standard of review for the AAT's decision and the extent to which the AAT should consider the interests of parties not directly involved in the review process.

In its decision, the court held that the AAT had not adequately considered the statutory criteria when deciding whether to grant a stay of the disqualification order. The court found that the AAT had focused too narrowly on the individual's personal interests without sufficiently weighing them against the broader public interest in the regulation of superannuation entities. The court emphasised that while personal commercial interests and reputational concerns are relevant, they must be balanced against the statutory objectives of protecting the public and maintaining confidence in the superannuation system. The court also noted that the AAT should consider the interests of all affected parties, not just those directly involved in the review process. Ultimately, the court found that the AAT had erred in its exercise of discretion and remitted the matter back for reconsideration.

The court did not make any final orders in this decision, but rather sent the matter back to the AAT for further consideration in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

What is worth having, and so desirable, is assessed after I take into account the interests of any persons who may be affected by the review of the decision. Those persons will include the parties to the application but will go beyond them to include those whose interests were taken into account in making the decision or whose interests were taken into account by Parliament in giving APRA the power to make the decision as part of its regulatory role.[55] [55] Those persons may not be able to apply for review of the decision under s. 27(1) of the AAT Act as they may not be “persons … whose interests are affected by the decision” (emphasis added). That does not mean that they are not “persons who may be affected by the review” (emphasis added). There is nothing in either s. 41(2) of the AAT Act or in the SIS Act that states that a particular applicant’s circumstances must be assessed on one side and the consequences of the decision compared with the consequences of the same type of decision to all other persons who have been the subject of it. Those other persons are not persons whose interests are affected by the review. They may have an interest in the outcome of the review so that they may compare the outcome with the outcome in those circumstances. That, however, is not an interest that may be affected by the particular review to which s. 41(2) refers. Looking at the matter another way, I do not consider that taking account of a person’s personal commercial interests or interests affecting his reputation necessarily leads to the conclusion that a stay order would be appropriate in almost every case in which a disqualification order has been made under s. 120A. That is only one of the factors that must be taken into account. Even then, the extent to which each person’s personal commercial interests or interests affecting his reputation are affected will vary from case to case as will such matters as the nature of the behaviour that led to APRA’s deciding to make its decision and the likelihood of the public’s being affected if a stay order were made. I agree that the scheme of the SIS Act makes it clear that, in regulating certain superannuation entities, Parliament intends to protect the public. This, though, does not mean that to grant a stay when a person relies on damage to his personal commercial interests or interests affecting his reputation would subvert Parliament’s intention in enacting the disqualification provisions in the SIS Act. It is Parliament that decided that s. 41(2) of the AAT Act would apply. It intended that the effect of aspects of its scheme of regulation and supervision could be stayed in certain circumstances. A stay order, if made in accordance with s. 41(2), would not subvert the scheme of the SIS Act but be consistent with it. It will also be relevant to consider whether the decision under consideration is APRA’s reviewable decision or its decision after reviewing its reviewable decision. That will only be one factor but it may be relevant in assessing whether or not there is further material to be considered.

Ratio Decidendi

Legal Principle Established

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