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Re VBW and Australian Prudential Regulation Authority

Re VBW and Australian Prudential Regulation Authority

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Case Copied 22 December 2005 62 min read

Contents

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CATCHWORDS – PRACTICE AND PROCEDURE – confidentiality order – application by media organisation to revoke or vary order – whether standing to make application – consequences of statutory requirement that Tribunal hold a hearing in private – principles governing power to restrict publication or disclosure of evidence or contents of documents – balancing principles of open justice and the administration of justice in a particular case in light of the requirement to hold a private hearing – whether Tribunal has power to make pseudonym or suppression orders – application refused.

SUPERANNUATION – legislative requirement that the hearing of a proceeding relating to a reviewable decision be held in private – modification of legislative requirement providing that all hearings shall be in public.

STATUTORY INTERPRETATION – WORDS AND PHRASES – “private hearing”

Administration of Justice Act 1960 (UK) s. 12
Administrative Appeals Tribunal Act 1975 ss. 25, 30, 35 and 35A
Commonwealth of Australia Constitution Act
Federal Court of Australia Act 1976 s. 50
Freedom of Information Act 1982 s. 58C
Industry Research and Development Act 1986 s. 39T
Insurance Act 1973 s. 25A
Migration Act 1958 s. 429

National Companies and Securities Commission Act 1979 s. 36
Occupational Standards Act 1987 s. 16

Superannuation Industry (Supervision) Act 1993 ss. 10, 120A, 254, 255, 256, 264, 265, 267, 268, 269, 270, 278, 279, 280, 281, 283, 284 and 344
Taxation Administration Act 1953 ss. 14ZZE and 14ZZK

A School v Human Rights and Equal Opportunity Commission (1998) 51 ALD 102
A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327
AAT Case 11,688 (1997) 35 ATR 1039
Applicant X v Australian Prudential Regulation Authority [2005] FCA 1288
Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Brown v Federal Commissioner of Taxation [2001] FCA 276; (2001) 47 ATR 143
Department of Industrial Relations v Forrest (1989) 11 AAR 256; 90 ALR 417
Director of Public Prosecutions v Williams (2004) 10 VR 348

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60

Forbes v Smith [1998] 1 All ER 973
Grassby v R (1989) 168 CLR 1; 87 ALR 618
Guglielmin v Trescowthick (No 3) [2005] FCA 139; (2005) 220 ALR 535
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Group Ltd (receivers and managers appointed) v The Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Johnston v Cameron (2002) 124 FCR 160
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR…

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 1294
Decision Date: 22 December 2005

CaseChat Overview and Summary

The case involved an application by Nationwide News, a media organisation, to revoke or vary a confidentiality order made by the Administrative Appeals Tribunal (Tribunal) in relation to proceedings involving an application for review of a decision by the Australian Prudential Regulation Authority (APRA). The application sought revocation or variation of the order to the extent that it suppressed the publication of the applicant's name, any material identifying him or entities in which he had an interest, and any affidavits, submissions, or other documents filed with the Tribunal. The applicant opposed the application, which was supported by another party, VBV. The court had to determine the legal issues relating to the Tribunal's power to restrict publication or disclosure of evidence or contents of documents, the balancing principles of open justice and the administration of justice, and whether the Tribunal had the power to make pseudonym or suppression orders.

The court considered the legislative framework and the principles governing the power to restrict publication or disclosure of evidence or contents of documents. It noted that the principle of open justice is of great importance, but it is not necessarily the whole weight of that principle that must be placed on the scales when considering possible prejudice to the administration of justice. The court also considered the implications of a private hearing and the extent to which the Tribunal could order a private hearing. It found that the requirement of s. 344(11) of the Superannuation Industry (Supervision) Act 1993 did no more than require the Tribunal to exclude the public from any such hearing. The court concluded that the requirement that the hearing be held in private did not lead to any requirement that access to the evidence or material given at the hearing be kept private.

The court found that the Tribunal had the power to make a pseudonym order in relation to the names of the parties under s. 35(2)(b) of the Administrative Appeals Tribunal Act 1975. It decided that it was appropriate to make an order suppressing the applicant's name and all material tending to identify him and entities in which he had an interest, as well as documents filed in the matter. The court considered that the industries regulated by APRA were industries in which a person's good name was an essential factor in their career prospects, and if there was doubt about that good name, career prospects could be tarnished. The court concluded that maintaining the confidentiality order was necessary to ensure the effectiveness of the Tribunal process and to protect the public and their investments.

In conclusion, the court decided not to revoke or vary the order made by the Tribunal on 15 September 2005 and varied by it on 26 September 2005 and 25 October 2005 except in so far as was necessary to permit the publication of this decision and the reasons for it. The court also decided that Nationwide News should be advised when the decision on the application was to be handed down and be given the opportunity to renew its application at or after that time.

Orders