Stephenson and Australian Prudential Regulation Authority
[2007] AATA 1577
•19 July 2007
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/0008
GENERAL ADMINISTRATIVE DIVISION )
Re
AARON STEPHENSON
Applicant
And
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
DECISION (CORRIGENDUM) [2007] AATA 1577
TribunalThe Hon R.N.J Purvis AM, QC, Deputy President
Ms G. Ettinger, Senior Member
Date2 August 2007
PlaceSydney
WHEREAS:
1. On 24 July 2007 the Tribunal issued written reasons for a decision in this matter.
2. It has come to the Tribunal’s attention that there was an error on the cover page of the decision in identifying the Applicant by the pseudonym “LHKZ”.
3. The Tribunal wishes to amend the written reasons so as to rectify the error. To do so with the least cost and inconvenience to the parties, the Tribunal exercises its power under section 43AA of the Administrative Appeals Tribunal Act1975.
Accordingly, the Tribunal orders that the cover page of the decision should read as annexed.
……………[sgd]……………………...
The Hon R N J Purvis, AM, QCDeputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/0008
GENERAL ADMINISTRATIVE DIVISION ) Re AARON STEPHENSON Applicant
And
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
DECISION
TribunalThe Hon R.N.J Purvis, AM, QC, Deputy President
Ms G. Ettinger, Senior Member
Date of Decision 19 July 2007
Date of Written Reasons 24 July 2007
Place Sydney
DecisionThe application is refused.
………[sgd]………
The Hon RNJ Purvis, AM, QC
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/0008
GENERAL ADMINISTRATIVE DIVISION ) Re LHKZ Applicant
And
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
DECISION
Tribunal The Hon R.N.J Purvis, AM, QC, Deputy President
Ms G. Ettinger, Senior Member
Date of Decision 19 July 2007
Date of Written Reasons 24 July 2007
Place Sydney
DecisionThe application is refused.
………[sgd]………
The Hon RNJ Purvis, AM, QC
Deputy President
CATCHWORDS
DISMISSAL APPLICATION – compliance with section 63(3) of the Insurance Act 1973 –provision of reasons for requesting reconsideration of decision – reasons supporting application to Tribunal for review of reconsidered decision – frivolous and vexatious proceedings pursuant to section 42B of the Administrative Appeals Tribunal Act – failure to comply with Tribunal directions pursuant to section 42A(5)(b) of the Administrative Appeals Tribunal Act – relevant principles to guide the Tribunal in arriving at a correct or preferable decision – application refused
LEGISLATION
Insurance Act 1973 - sections 25A and 63
Administrative Appeals Tribunal Act 1975 - sections 33(2A), 42A(5) and 42B
CASE LAW
Attorney-General v Wentworth (1988) 14 NSWLR 481
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Comcare v Willems, Federal Court, 26 June 1996, G0061/95
Dunkin v Fayle (2004) 138 FCR 510
Munnings v Australian Government Solicitor (1994) 118 ALR 385
Re Cooper (WH) and Repatriation Commission (1995) 38 ALD 164
Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747
Re VBN and Australian Prudential Regulation Authority (No 5) (2006) 92 ALD 259
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Walton v Gardner (1992) 177 CLR 378
REASONS FOR DECISION
24 July 2007 The Hon RNJ Purvis, AM, QC, Deputy President
Ms G. Ettinger, Senior Member
substantive application
1. The Applicant in these proceedings has made application to the Tribunal seeking review of the confirmed decision of 16 December 2004 by a delegate of the Australian Prudential Regulation Authority, to disqualify the Applicant under section 25A of the Insurance Act 1973 (“the Act”).
2. In the context of the Respondent’s present application, it is relevant to note the role and function of the Tribunal. The Tribunal in conducting a review of a reviewable decision is required, on the basis of material tendered and placed before it, to determine what is the correct or preferable decision, in relation to whether the above-mentioned confirmed decision of the delegate should be affirmed or varied. The Tribunal is to “stand in the shoes” of the decision-maker and consider all of the material placed before it, taking into consideration relevant statutory provisions. Its source of power in the present application is the Act. It is also relevant to note, as was discussed in Re VBN and Australian Prudential Regulation Authority (No 5) (2006) 92 ALD 259 at 330 to 331:
“… neither party bears a legal onus of proof in the tribunal unless the legislation governing the decision under review provides to the contrary …
…
When the evidence is insufficient to persuade the tribunal, its very insufficiency will determine the outcome of the case. That is because … the tribunal must analyse the question it must decide. As it stands in the shoes of the decision-maker, it has all the powers and discretions of the decision-maker whose decision is under review. It may exercise them after having regard to all relevant material whether that material was seen or considered by the decision-maker or not. In other words, unless its powers are qualified by the relevant legislation, the tribunal undertakes the review afresh. Therefore, the question it must analyse must be the question that the decision-maker, in this case APRA, had to ask and answer.
… the question that the tribunal must ask itself has two parts: is it satisfied of those certain matters; and, if it is satisfied, should it disqualify all or any of the applicants?...
…
The word “satisfied” is not qualified by a word such as “affirmatively”. The test is that of satisfaction alone. If, after considering all of the material in a particular application, we are not persuaded on the balance of probabilities that the first question should be answered in the affirmative, we will not be satisfied of the matters that must precede any consideration of the discretionary question whether disqualification should be imposed. We will decide that disqualification is not the correct or preferable decision and set aside APRA’s decision. If we are satisfied that the first question should be answered in the affirmative, we will ask ourselves whether the discretion to disqualify that particular applicant should be exercised.”
the present application by the respondent to strike out the applicant’s application
3. The Respondent has made an application to strike out the Applicant's application; that is, it has asked that the proceedings be dismissed on the following bases:
(A) The appeal by the Applicant is incompetent, and should be dismissed on the basis that the Applicant failed to comply with section 63(3) of the Act.
(B) There has been a failure on the part of the Applicant to provide reasons for his application to the Tribunal; that is, the proceedings are frivolous and/or vexatious pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”).
(C) There has been a failure on the part of the Applicant to comply with directions of the Tribunal to file a Statement of Facts and Contentions pursuant to section 42A(5)(b).
relevant provisions of the act
4. The relevant provisions of the Insurance Act 1973 provide:
“Section 63
Review of certain decisions
(1)…
(2)A person affected by a reviewable decision of the Treasurer or APRA who is dissatisfied with the decision may, by notice in writing given to the Treasurer or APRA, as the case may be, within the period of 21 days after the day on which the decision first comes to the notice of the person, or within such further period as the Treasurer or APRA, as the case may be, allows, request the Treasurer or APRA, as the case may be, to reconsider the decision.
(3)There shall be set out in the request the reasons for making the request.
(4)Upon receipt of the request, the Treasurer or APRA, as the case may be, shall reconsider the decision and may, subject to subsection (5), confirm or revoke the decision or vary the decision in such manner as the Treasurer or APRA thinks fit.
…
(7)Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Treasurer and decisions of APRA that have been confirmed or varied under subsection (4).
…”
[a] Appeal is incompetent and should be dismissed (section 63(3) of the act)
5. The Respondent submits that the Applicant did not comply with the provisions of section 63(3) of the Act, in that he did not provide to the Respondent (at the time of making his request for a reconsideration of the original decision) reasons for making the request. Hence it is said that the reconsideration was invalid, is a nullity and cannot be a source of power for an appeal to the Tribunal under the Act.
6. In support of this submission it is maintained that:
(a) Whilst the reasons accompanying a request must relate back to the original decision, the legislative purpose is to require Applicants, for a reconsideration of a reviewable decision under the Act, to provide to the delegate performing the reconsideration, material to be taken into account during that reconsideration.
(b) The content of the word “reason” must bear some relationship to what is relevant to the decision to confirm, or revoke, or vary the original disqualifying or reviewable decision. “Reasons” comprise arguments and material which support and justify the request. The Respondent submits that this prerequisite did not occur in support of the original request.
7. In their submissions, counsel have referred the Tribunal to two decisions that may guide it in its deliberations in this regard; Comcare v Willems, Federal Court, 26 June 1996, G0061/95 (“Willems”) and Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747 (“VBJ”).
8. In Willems, the court considered the effectiveness of the contents of a letter as reasons for a request. As here relevant, the reasons stated:
“…[7] Mr Willems’ solicitors wrote to the employer on 20 June 1989 both indicating that, as it was unable to provide him with suitable alternative employment, he wished to claim compensation for his ongoing incapacity and requesting the relevant forms for the purpose. The solicitors were provided with a compensation claim form by letter on 27 June 1989. That form and several other documents were in turn forwarded by the solicitors to Comcare on 14 November 1989. The accompanying letter stated:
"We act for (Mr Willems) in relation to a claim for compensation that our client has arising out of his employment with ACT Water and Electricity.
We enclose herewith the following:
1. Copy letter from your office 1/11/88.
2. Copy letter from ACT Electricity and Water 27/6/89.
3. Comcare Claim Form.
We are instructed by our client that ACT Electricity and Water is now unable to provide him with suitable alternative employment and Mr Willems therefore wishes to claim compensation in respect of his ongoing incapacity.
We would be pleased if you would give this claim your earliest attention."
I would note in passing that the Comcare claim form was not produced to the Tribunal or to this Court.
…
[17] The SRC Act section 62(3) provides that:
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
…
[19] After noting (i) that the SRC Act did not in terms specify that a request be in writing; (ii) that Comcare was required by the Act to make determinations accurately and quickly; but (iii) that in so determining it was to be "guided by equity, good conscience and the substantial merits of the case, without regard to technicalities": cf SRC Act s72(a) - the Tribunal concluded thus:
"The information provided by the solicitor to Comcare in his letter of 14 November 1989 and attachments (T.88) to the effect that an earlier determination was made on 21 November 1988, that he was instructed by his client that ACTEA was unable to provide him with suitable employment and that he had ongoing incapacity, when placed in the context of the file notes at T.86 and T.87 indicating the Applicant's need to make a request for reconsideration, is sufficient to satisfy me that this constitutes a request for reconsideration pursuant to subsection 62(3) of the 1988 Act. Notwithstanding that a new claim was included in the letter from the Applicant's solicitor, in the context of the abovementioned evidence I am not persuaded that this necessitated that the matter be treated by the Respondent as a new claim.": Reasons for Decision, para 44.
[20] It is Comcare’s contention on this appeal that the letter was neither intended to be a request for reconsideration, nor did it comply with the requirements of s62(3)(a) in that the "reasons for the request" were not set out: it was no more than an indication that Mr Willems disputed the original determination.
…
[23] … I am not persuaded that the Tribunal was in error in concluding both that the letter constituted a s62(3) request and that it could properly be treated by Comcare as such. I would add that … the reasons given in the letter for the marking of the request - i.e. change of circumstances - are sufficiently "reasons" for s62(3) purposes. Whether they are clear, adequate for the purpose, or cogent raises a different question altogether in my view.
[24] … But its end in the circumstances was to attempt to secure for Mr Willems such reconsideration of his situation as s62 envisages. I do not in consequence consider that an error of law has occurred in the Tribunal's attributing to the letter the character it gave it. Accordingly I reject the challenge made to this finding.”
9. In the VBJ decision at 756 to 757, the Deputy President, as here relevant, made reference to decisions concerning the Migration Act 1958, including information that is required to be provided by the parties to proceedings under that Act. It was stated by the learned Deputy President at 757 that “Parliament intended that the Minister be forewarned of the evidence that was to be given on behalf of an applicant for review”. The Deputy President continued by saying at 757:
“… It needs to know why an applicant is dissatisfied with its decision if it is to be properly equipped to undertake the review. Without that knowledge, it is left only with the information it has previously gathered and its previous analysis of that information. It seems to me that the structure of the provisions means that the requirement of s. 344(3) must be complied with; an applicant must set out the reasons for making the request.
…”
10. We do not agree with the statement contained at 757 if its intention is to require an Applicant, requesting a review of a decision by the Respondent, to traverse the reasons given by the delegate for its decision. Consistent with the discussion in Willems, the “reasons” necessary are those for making the request, which might be quite different from the reasons for disagreeing with a decision.
11. The reasons for the request in the present instance, made by the Applicant to the Respondent for its reconsideration of the original decision, are contained in correspondence dated 12, 23 and 25 November 2004 (Exhibits 3, 6 and 7).
12. In his letter dated 12 November 2004, the Applicant stated:
“…
The order of events so far is that;
(a) On 3 May 2004 I was served with a "Show Cause Notice" inviting me to make submissions why I should not be disqualified under Section 25 of The Insurance Act;
(b) On 25 June 2004 I provided APRA my submissions in response to the “Show Cause Notice”
(c) On 4 November 2004 I was served with a purported Notice of Disqualification effective from 3 November 2004;
My understanding of the administrative process is that;
i) I have 21 days from the day I receive the Notice (4th November 2004) to request that APRA reconsider its decision;
ii) Failing APRA's reconsideration of its decision in my favour, I then have a period in which to appeal APRA's decision to the AAT.
Therefore, in light of the available reconsideration and appeal process referred to above it was premature for APRA to have published via the Media Release its decision to disqualify me.
…
Under the circumstances I am of the view that APRA has acted in contumelious disregard of my rights, and I am concerned that APRA has no genuine desire to treat any submission from me for reconsideration with fairness or objectivity.
I request APRA reply to my following questions;
1. I require copies of all material relied upon by APRA concerning allegations made against me in the Media Release in particular but, not just limited to the allegations made in paragraphs 2 & subsections of 2 - and paragraphs 3 and 4?
2. I require APRA's reasons for publishing the Media Release at this time given the reconsideration and appeal process available to me?
3. I require reference to & copies of the section of any Act or Acts which authorized [sic] APRA to make public a statement by Media Release, and the terms of reference and/or guidelines concerning such authorization [sic]?
4. I require APRA's reasons for not including in the Media Release reference to the reconsideration and appeal process available to me as prescribed under the Act.
5. I require material supporting APRA's imputation that I did not act in the best Interests of policyholders - please provide material, documentation or other evidence that can consider which demonstrates that policyholders were detrimentally Impacted upon as result of anything I did? (an example of an affected policyholder would be ideal)
I look forward to APRA's response and meanwhile request APRA remove the Media Release forthwith.
…”
13. The letter dated 23 November 2004, so far as is relevant, states:
“…
The information I have requested from APRA is paramount to my consideration for submissions necessary to support my request for reconsideration of its decision. As at close of business today (23 November 2004) APRA has not provided me with the information requested and as a result I have been greatly disadvantaged.
There is a prescribed period of 21 days in which I have, to request APRA reconsider its decision. I am therefore left with no alternative but, to try and obtain information concerning APRA's decision under the Freedom of Information Act 1982.
In light of the circumstances, request APRA extend the period for reconsideration.
The period of reconsideration should be extended to at least until the information requested under the FOI is provided to me, and until a time sufficient for me to examine the information and prepare my submissions in support of my request for reconsideration.
Please confirm APRA agree to extend the period for reconsideration as requested.
I continue to press APRA for its response to my letters of 12, 16 & 22 November 2004.
…”
14. The letter dated 25 November 2004, so far as is relevant, states:
“… I refer to my letter of 23 November 2004 to APRA in which I pressed for a response to my previous requests for information. APRA has not responded.
I also made a request to APRA for an extension of the reconsideration period which expires today. APRA has not responded.
I am concerned that my rights concerning reconsideration are in jeopardy if I don’t make a formal request for reconsideration. In light of the circumstances I feel compelled to request a reconsideration of APRA's decision of 3 November 2004.
As a result of APRA's failure to respond to my correspondence or to allow me an extended period in which to formulate my submissions, I am of the view that my rights and ability to make submissions in support of my rights have been prejudiced.
I hereby request APRA reconsider its decision of 3 November 2004.
My request for reconsideration is done so on a without prejudice basis so as not to limit my rights in respect of all matters concerning my disqualification and the administrative process of such.
I have reviewed APRA's notice of 3 November 2004 and a number of conclusions drawn by APRA seems to have been based on information and documentation not provided to me at the time of the Show Cause Notice of 3 May 2004.
Please advise what APRA intends to do about this situation.
…”
15. It is apparent from the above correspondence that the Applicant requested information, and an extension of the reconsideration period. He was not provided with the information that he sought, nor was the period extended. He was conscious of his right of appeal to the Tribunal.
16. We are of the opinion, and so find, that the contents of the above letters supply reasons that provide a basis for the exercise of the power to reconsider the original decision to disqualify. Section 63(3) of the Act does not require the specification of reasons why a person may disagree with a relevant decision. It requires the specification of reasons for making the request.
17. Accordingly, the application for dismissal of the proceedings, on the basis of the appeal being incompetent by reason of a failure to comply with section 63(3) of the Act, is dismissed.
[b] appeal frivolous and/or vexatious – failure to provide reasons (section 42b aat act)
18. The Respondent contends that the proceedings should be struck out as frivolous and/or vexatious pursuant to section 42B of the AAT Act, as they are proceedings which:
(a) Would inevitably and manifestly fail;
(b) Are incapable of serving a legitimate purpose; and
(c)Are oppressive in the sense that they impose upon the Respondent an unnecessary injustice that is a burden, other than and additional to, the burden necessarily imposed on a party to litigation, instituted on reasonable grounds, for the purpose of obtaining relief within the scope of the available remedy. The Respondent contends that the proceedings are an abuse of process.
19. It is helpful to first consider the prerequisites required for a proceeding to be held to be vexatious and/or frivolous. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, the court stated:
“It seems then that litigation may properly be regarded as vexatious for
present purposes on either objective or subjective grounds. I believe that the
test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of
annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not
for the purpose of having the court adjudicate on the issues to which they
give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the
motive of the litigant, they are so obviously untenable or manifestly
groundless as to be utterly hopeless.
…”
20. In Re Cooper (WH) and Repatriation Commission (1995) 38 ALD 164 at 165, “frivolous” was found to mean “obviously unsustainable”. The power to dismiss proceedings as frivolous should be exercised only in the clearest of cases. In Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, it was stated:
“…Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed…”
21. In Munnings v Australian Government Solicitor (No 2) (1994) 118 ALR 385 at 388 to 389, it was said:
“Where, as in this case, the applicant seeks to have the court exercise a summary jurisdiction effectively terminating an action, great caution is to be exercised. It must be quite clear that the plaintiff does lack a cause of action before he is denied access to the court upon that ground. Where any real question of fact or law emerges upon which the rights of the parties depend, then that question must be determined and it is not possible to stay the action as frivolous or vexatious.”
22. Again, in Dunkin v Fayle (2004) 138 FCR 510, and with specific reference to
section 42B of the AAT Act, it was said at 517:
“[21] A decision of the Tribunal refusing to dismiss an application as frivolous or vexatious under s 42B(1) of the AAT Act clearly does not effectively decide or determine the application. The application remains to be determined…
[22] A decision dismissing an application as frivolous or vexatious under s 42B(1) of the AAT Act is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed.”
23. In Re Williams and Australian Electoral Commission (1995) 38 ALD 366, the application of section 42B was considered. It was held that the same general criteria for the dismissal of court proceedings as frivolous and/or vexatious applies to the Tribunal. At 372 it was said:
“The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly…The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause…”
24. In Walton v Gardner (1992) 177 CLR 378 at 410 [to 411], it was stated:
“When a party invokes the jurisdiction vested in a court or tribunal for a purpose alien to that which its exercise is intended to serve, it is said that there is an abuse of process…
Therefore, where proceedings are instituted by a party for the purpose of oppressing another party, the proceedings may be stayed…
If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law. And equally, the institution of proceedings which will inevitably and manifestly fail which unnecessarily duplicate proceedings already pending or determined are incapable of serving a legitimate purpose. They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is to say, a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy. Therefore, in the context of abuse of judicial process, the concept of alien purpose is relevant to two questions: whether the party instituting the proceeding has done so for an alien purpose and whether the proceedings themselves are serving an alien purpose.”
25. The above statements of principle require the Tribunal to consider questions of abuse of power, the purpose of a party instituting proceedings and whether there might be a collateral purpose, issues of oppression and/or burden upon a Respondent, whether an application is capable or not of serving a legitimate purpose, and the likelihood of failure.
the evidence before the tribunal
26. The documentary material presently before the Tribunal, is comprised of the “T” Documents extending over no less than 15 volumes, seven witness statements lodged on behalf of the Respondent, and a statement of the Applicant also lodged with the Tribunal. It is said, on behalf of the Respondent, that the Applicant’s evidence amounts to no more than a collection of argumentative assertions, a claim that various requests for particulars have not been answered, non-admissions in relation to various portions of evidence filed by the Respondent, and limited admissions in relation to some particulars.
27. It is true that the Applicant’s material might, in some respects, have limited value. The complaint by him as to the non-provision of particulars by the Respondent is put forward as explanation for particular contentions made by the Respondent not being particularised. The alleged unsubstantiated assertions of fact may also be limited in their relevance. However they do, in a number of respects, raise significant issues. In some instances, the Applicant maintains that documents relied upon by the Respondent’s witnesses have not been provided to him, or sufficiently identified. In other cases it is said that a specific document, said to be relied upon by a witness, does not bear out a fact alleged. There are unsupported assertions of fact made by the Applicant in his material. There are also assertions made by the Applicant that contentions of the Respondent are not supported by the material identified by the Respondent in its particulars and are not made out if reliance is placed on particular identified documents.
28. Whilst the matters upon which the Applicant relies, as detailed in his statement, may not all progress the Applicant’s position, in our opinion it cannot be said that they do not raise relevant issues. On the basis of the material identified it cannot be said that the Applicant is precluded from maintaining that a contention, made on behalf of the Respondent, is not established on the basis of the material which is particularised.
applicant’s statement of facts and contentions
29. It is further maintained on behalf of the Respondent, that the Applicant's Statement of Facts and Contentions does not assert that the evidence of the Respondent’s witnesses is wrong, or that the Respondent’s evidence does not establish its facts or contentions. It is also maintained that the statement does not assert the proposition that even if the Respondent’s facts and contentions are established, they are not such as to warrant a decision to confirm the disqualification. It is true that there is not an assertion as to a witness being “wrong”. On the other hand, as we understand the Applicant’s position, there is an assertion that the material does not support a number of the contentions made on behalf of the Respondent. Further, it is implicit in the matters asserted by and on behalf of the Applicant, that he maintains that the material does not establish a basis for a decision to cause his disqualification.
30. Section 33(2A) of the AAT Act requires such “matters or contentions” that are intended to be relied upon to be set forth in a Statement of Facts and Contentions. If such a statement does not detail a “matter” or “contention”, then an Applicant may well not be able to rely upon or raise at the hearing such a matter or contention. As already noted it is implicit, as we see it, in the Applicant’s material that he maintains a contention that disqualification was not an appropriate course of action to be taken by the Respondent.
31. We are satisfied that the Applicant, in the present application, has put forward a basis for the requested review and has identified a basis on which the decision under review can be considered by the Tribunal. We are further of the opinion that whilst it is not open to an Applicant to “insist that the Respondent prove that it had a proper basis for its decision to disqualify” it is nevertheless competent for an Applicant to seek review “de novo” of the original decision made by the Tribunal. We are further of the opinion that even be it the Applicant is “the moving party for a review” there is not an obligation on him to demonstrate that the decision under review “is in someway flawed”, as maintained on behalf of the Respondent.
32. We are not satisfied that the Respondent has demonstrated that there has been an abuse of power, or that the initiating proceedings were instituted for an alien purpose. The Respondent has undertaken preparation for the hearing of this application. Whilst the task imposed upon it was no doubt extensive, and such as to require the preparation of extensive material, we do not see it as being any more oppressive or burdensome than the obligation that is to be assumed by a Respondent in the position of APRA in any comparable litigation or application for review. We are satisfied that the Applicant’s application is capable of serving a legitimate purpose, and cannot say that the application will inevitably fail.
33. We are not satisfied that the proceedings are of a frivolous or vexatious nature. The Respondent’s application is this regard is dismissed.
[c] Failure to comply with directions (section 42a(5)(b) aat act)
34. The Respondent also submits that the Applicant has failed to comply with directions of the Tribunal made on 19 January 2007, in that he has failed to specify in his Facts and Contentions filed on 26 June 2007, the reasons why he asserts the decision to disqualify him was erroneous.
35. The power to require a party to lodge a Statement of Facts and Contentions with the Tribunal is contained in section 33(2A)(c) of the AAT Act. So far as is here relevant, the AAT Act provides:
“(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) …
(b) …
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.”
36. Directions requiring the Applicant to file such a Statement were made on 19 January 2007, and the Applicant filed its Statement of Facts and Contentions on 26 June 2007.
37. It is submitted on behalf of the Respondent that section 42A “clearly contemplates that the Applicant for review of a decision to disqualify, identify reasons why the decision is “reviewable””. It is further submitted that the Applicant’s statement “put forward no basis for a reconsideration of the decision to disqualify, as no reasonable basis is advanced as to why the administrative decision appealed from is erroneous in any way.”
38. The role of the Tribunal in determining an application has earlier been discussed in these reasons. The material presently before the Tribunal has also been detailed. A Statement of Facts and Contentions, as required by the AAT Act, does not require there to be set forth in it “the basis for reconsideration”, but “matters or contentions” upon which reliance will be placed.
39. From the material presently before the Tribunal, it is possible to identify reasons provided by the Applicant for having the Tribunal review the decision. The contents of letters dated 12, 23 and 25 November 2004 (Exhibits 3, 6 and 7) have already been detailed. Whilst they were provided in support of the request for reconsideration, and whilst they do not detail all of the matters that may be now relied upon by the Applicant, they do contain “reasons” which might be relied upon in providing some of the reasons for reconsideration. Further, although the 5 January 2005 application by the Applicant for review of the decision set forth a number of “reasons” which are no longer applicable (because they are based on a false understanding of the role of the Tribunal), the attached “reasons for application” do set forth the following:
“… (e) the decision and its confirmation went against the weight of evidence provided by the Applicant to APRA
(f) The decision and its confirmation was wrong, based upon all the evidence in the possession and knowledge of APRA on the following grounds:
(i)In 2001, APRA appointed an Inspector (''the Inspector'') to Rural and General Insurance Limited ("R&GIL'').
(ii)At the time, the Applicant was a director of R&GIL.
(iii)On 26 March 2003, the Inspector provided his report to APRA.
(iv) On 15 April 2003 APRA issued a media release in relation to Rural & General International Insurance Ltd ("RGII'') and Rural and General Insurance Broking Pty Limited ("R&GIB'').
(v)On 7 July 2003 R&GIB issued defamation proceedings against APRA in the Supreme Court of the Australian Capital Territory ("the Defamation Proceedings").
(vi)On 8 August 2003, the Inspector reported to APRA that, under all scenarios, R&GIL had net assets greater than at least $1,200,000, and that this changed his 6 March 2003 report, its conclusions and most likely its recommendations.
(vii) On 9 September 2003 APRA issued proceedings in the Federal Court of Australia seeking orders to appoint a provisional liquidator to R&GIL, based partly on the report of the Inspector (''the Liquidation Proceedings"). APRA did not have standing to seek such relief.
(viii) On 12 February 2004 the directors of R&GIL appointed Geoffrey David McDonald and Robert William Joseph Elliott as Administrators to R&GIL as a result of the expense to which R&GIL was put to defend the Liquidation Proceedings.
(ix)In March 2004, APRA withdrew the Liquidation Proceedings.
(x)On 3 May 2004 APRA issued a Notice of Proposed Disqualification of the Applicant under section 25A of the Insurance Act 1973 ("the Show Cause Notice'').
(xi)On 19 July 2004, more than 12 months after the Defamation Proceedings were filed, APRA filed its defence in the Defamation Proceedings, relying upon the grounds referred to in the Show Cause Notice as "particulars of justification' in the Defamation Proceedings.
(xii)On 25 June 2004 the Applicant provided submissions in reply to APRA's Show Cause Notice.
(xiii)The Applicant had requested APRA to provide the Applicant with a large volume of documents as well as answers to numerous questions. APRA had failed to provide all documents and answer those questions without lawful excuse before making its decision or confirming its decision.
(xiv)The submissions in reply from the Applicant were made in the absence of answers from APRA and the documents sought.
(xv)On 3 November 2004 APRA disqualified the Applicant from acting as:
(A) a director or senior manager of a general insurer (other than a foreign general insurer); or
(B) a senior manager, or agent in Australia for the purpose of section 118 of the Insurance Act of a foreign general insurer; or
(C) a director or senior manager of an authorised NOHC.
(xvi) On 25 April 2004 the Applicant exercised his right to a reconsideration of the APRA decision.
(xviii)APRA confirmed its decision on 16 December 2004.
(xix)The decision, and its confirmation, were made at a time when the alleged grounds for the decision were still the subject of the Defamation Proceedings which were before the ACT Supreme Court, and therefore sub judice.
(xx)By making the decision and effecting its confirmation, APRA has denied the Applicant the right to properly oppose the grounds relied upon by APRA in its defence in the Defamation Proceedings.
(xxi)In September 2002, APRA had already formed the opinion to "remove the directors" if possible (which included the Applicant) from R&GIL, as being "not fit and proper" in the event that APRA and the Inspector were not able to prove that R&GIL was insolvent. This amounted to a pre-determination of the issue which was the subject of the Show Cause Notice, the decision and the confirmation of the decision, amounting to bias, and lack of procedural fairness, on the part of APRA.
(xxii)In reaching the decision and the confirmation of the decision, APRA relied upon information and documents that were contained within various affidavits filed in the Liquidation Proceedings, including the report of the Inspector which the Inspector had already advised APRA had changed (see paragraph (vi) above). The affidavits were not read by the Court, and were not the subject of any hearing during the Liquidation Proceedings.”
40. The above detailed grounds are indeed, as to many of them, not now relevant, but those enumerated xii, xiii, xiv, xxi and xxii may provide relevant particulars. Further, in a letter dated 2 January 2007 the Applicant’s solicitors, in requesting further and better particulars of the Respondent’s allegations, did include amongst its contentions that “the decision made by the delegate is so vague and so ambiguous in many respects that our client is simply not in a position to know whether or not he should properly agree with certain findings of fact and other matters raised for the purpose of the review” and “…the decision of the delegate is substantially deficient in that he appears to have made a large number of findings without having identified the factual, and at times legal basis, for them.” There are further statements in the letter as to the Applicant denying matters alleged against him.
41. The Statement of Facts and Contentions in paragraph 15 allegedly sets forth “the Applicant’s response to the allegations of conduct made against him”. It states:
“The applicant:
A. Does not admit any of the allegations made against him said to give rise to a finding that he is not a fit and proper person within the meaning of section 25A(1) other than any admissions made in his statement of evidence;
B. Puts the respondent to proof of any allegations of conduct sought to be made against him;
C. Says that, even if he failed to comply with any obligations imposed upon him or otherwise engaged in conduct below the standard reasonably and properly expected of him, then such failings were not of a nature and/or extent that he should properly be determined not to be a fit and proper person within the meaning of section 25A of the Act;
D. Says that, even if he should properly be determined not to be a fit and proper person within the meaning of section 25A(1) of the Act, then, in accordance with the discretion conferred by that section, he should not properly be disqualified having regard to all the circumstances;
E. Says that, even if he should properly be determined not to be a fit and proper person within the meaning of section 25A(1) of the Act, then the offering and acceptance of an enforceable undertaking by the applicant (upon terms that will be particularised prior to the final hearing) is a reasonable and acceptable outcome having regard to any failings on the part of the applicant.”
42. Having examined all of the above mentioned material, we are satisfied that there has been a compliance on the part of the Applicant with the direction of 19 January 2007. The Applicant may well be constrained by paragraph 15 of its Statement of Facts and Contentions, and this may well have been intentional on his part. It is clearly maintained on his behalf that he does not admit the allegations made against him, so far as they give rise to a finding that he his not a fit and proper person within the meaning of section 25A(1) of the Act. He clearly raises an issue as to compliance, or otherwise, with obligations imposed upon him and that if there were failings, they were not of a nature or extent warranting disqualification. He further offers an enforceable undertaking.
43. We are satisfied that there has not been a failure on the part of the Applicant to comply with the direction or an absence of reasons, limited as they might well be.
44. Accordingly, the application referable to section 42A(5)(b) is dismissed.
Relevant principles
45. Implicit in the above decision has been the acceptance and recognition by the Tribunal of a number of principles that are to guide it, and parties appearing before it, in arriving at an appropriate decision. It may be of assistance if the Tribunal details such principles. They are:
(i)It is not for an Applicant to insist upon a Respondent proving that it had a proper basis for making its decision. Rather, an Applicant is entitled to apply to the Tribunal to have a decision reviewed in light of the material before the decision maker and such additional material as,
(a) the Tribunal may require the parties to lodge with it; and
(b)the parties themselves may tender and request the Tribunal to take into consideration.
(ii)It is for the Tribunal, on the basis of the above material, to reach or arrive at a decision that is the correct decision or a decision preferable to that made by the primary decision maker.
(iii)In the absence of legislative provision, findings of fact to support a decision are to be made on the balance of probabilities.
(iv)The task of the Tribunal, in the absence of a statutory requirement such as is contained in the taxation and veterans’ entitlements legislation, is to arrive at its decision on the basis of the whole of the material before it. Unless specifically required, there is not an onus on either party.
(v)It is not for an Applicant to demonstrate that a decision under review is “in some way flawed”. That is, an error is not necessarily to be located in the decision under review, or in the reasons for such decision.
(vi)New material placed before the Tribunal, that is additional to the “T” Documents, may well assist it in arriving at its decision. An Applicant is to seek to persuade a Tribunal that on the basis of all the material now before it, the proper decision is as the Applicant proposes. The Respondent will generally seek to maintain the original decision that is under review.
(vii)A Statement of Facts and Contentions is provided for the purpose of identifying the matters or contentions upon which the party intends to place reliance at the hearing.
(viii)The requirement placed upon an Applicant pursuant to section 63(3) of the Insurance Act 1973 is separate and distinct from a requirement material to the Tribunal review process.
(ix)It may be noted that a Respondent in the position of APRA, a regulatory body, does have responsibility, indeed an obligation, to assist the Tribunal to be able to reach its decision.
46. The Tribunal, in this instance, is grateful for the assistance that it has received from the legal representatives of both parties in reaching its decision in this interlocutory application.
DECISION
47. The application is refused.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis AM, QC, Deputy President and Ms G. Ettinger, Senior Member
Signed: ............[sgd]...............................................................
Skye Owen, AssociateDate of Hearing: 19 July 2007
Date of Decision: 19 July 2007
Date of Written Reasons: 24 July 2007
Solicitor for the Applicant: Mr B. Goldsmith
Counsel for the Applicant: Mr R. Beech-Jones S.C.
Solicitor for the Respondent: Mr L. Weate
Counsel for the Respondent: Mr S. Wheelhouse S.C.
Ms M. Painter
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