The Applicant and Australian Prudential Regulation Authority

[2005] AATA 529

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2004/1132

GENERAL ADMINISTRATIVE DIVISION

Re:                THE APPLICANT

Applicant

And:                AUSTRALIAN PRUDENTIAL

REGULATION AUTHORITY

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:             6 June 2005

Place:            Melbourne

Decision:The Tribunal adjourns proceedings in this application to a further directions hearing to be held on 5 December 2005 or as soon as practicable thereafter.

(sgd) B.H. Pascoe

Senior Member

PRACTICE AND PROCEDURE – adjournment application – application for stay of proceedings – contemporaneous criminal proceedings – overlap of issue in both proceedings – prejudice to applicant in proceeding with application – adjournment for limited time

Superannuation Industry (Supervision) Act 1993

Baker v Commissioner of the Australian Federal Police (2000) 104 FCR 359

Re Burroughs and Australian Prudential Regulation Authority (N2005/183, 15 April 2005)

REASONS FOR DECISION

6 June 2005  Mr B.H. Pascoe, Senior Member

1. This is an application for a stay of proceedings before the Tribunal. On 1 October 2004, the applicant lodged an application for a review of a decision of the respondent, Australian Prudential Regulation Authority (APRA) to disqualify her from being a trustee, investment manager or custodian of any superannuation entity or a responsible officer of a body corporate; that is a trustee, investment manager or custodian of any superannuation entity under s 120A(1) of the Superannuation Industry (Supervision) Act 1993 (the SIS Act).

2. On 7 April 2005, the Commonwealth Director Public Prosecutions (DPP) filed charges against the applicant, being five counts of giving false testimony in an examination under the SIS Act and one charge of an offence under s 307(1)(b) of the SIS Act. Both the disqualification and the criminal charges arose from the applicant’s involvement as an employee of an accounting firm in the audit of a superannuation fund in 1999.

3. The applicant has applied for a stay of proceedings on the grounds that a hearing before this Tribunal, including examination and cross‑examination of the applicant and any of her witnesses and the production of documents may be prejudicial to a fair hearing of the criminal charges.  A filing hearing in relation to the criminal charges was held on 12 May 2005, hand‑up briefs are to be filed by 7 July 2005 and the matter is listed for mention on 1 August 2005.  Subject to whether the applicant waives her right to a committal hearing, the charges could be heard in early 2006.

4. At a directions hearing to consider the application for a stay of proceedings which was opposed by the respondent, it was submitted by Mr A. Athanasiou, for the applicant, that the main issue was the applicant's right of silence and this right would be prejudiced if she was required to give evidence at a Tribunal hearing prior to the criminal proceedings. It was said that her legal advice was not to divulge evidence prior to a hearing of the criminal charges. Consequently, it was said she may need to withdraw her application to the Tribunal or be limited in actively pursuing the application to a full extent. It was argued that, until finalisation of the Tribunal proceedings, the applicant would remain disqualified; there was no prejudice to the respondent in delaying the Tribunal proceedings; and that a confidentiality order, pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, would not satisfactorily allay concerns of prejudice.

5. For APRA, Mr P. Hanks of counsel submitted that, while there was an overlap between the subject of the Tribunal application and the criminal charges, any risk of continuing the Tribunal proceedings could be overcome by a s 35 Order. Mr Hanks contended that there is a public interest in the continuation of the administrative process before the Tribunal and, as the applicant had already provided substantial evidence in her examination under Part 25 of the SIS Act, her submission to APRA and her statement of facts, issues and contentions to the Tribunal, there is no more than a possibility of exposure to self‑incrimination. Mr Hanks argued that there would be an adverse effect on APRA if the matter is delayed in administrative and legal costs and minimisation of deterrent effect.

6. It is clear that there is no automatic right to a stay of civil proceedings merely because concurrent criminal proceedings are pending.  As said by Gyles J in Baker v Commissioner of the Australian Federal Police (2000) 104 FCR 359 (at 27):

   There is a long line of authority which establishes that the granting of a stay of civil proceedings in those circumstances is discretionary in the civil court and that the choice of either fully pursuing a civil claim or a defence to a civil claim or not doing so to avoid the risk of self‑incrimination is not sufficient in itself to warrant a stay.

However, in this matter, I adopt the reasoning for the decision of Deputy President Walker in Re Burroughs and Australian Prudential Regulation Authority (N2005/183, 15 April 2005) which has many similarities.  At page 11 of his decision, Deputy President Walker summarised his reasons for granting a stay until 1 December 2005 as follows:

·   There is a common substratum of facts between the criminal proceedings and the tribunal proceedings.  Requiring the applicant to proceed at this stage would expose him to the risk of waiving his right to silence, and the tribunal to the risk of making a decision without having all the evidence available to it:  Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317. The applicant could be constrained from presenting all the evidence available to him, and it is also possible that other evidence may emerge in the course of the criminal proceedings that is relevant to the issue of whether the applicant is now a fit and proper person to hold the relevant licence.

·   The respondent will not be substantially prejudiced by the adjournment, and the applicant is not seeking a stay of the disqualification order.  He is currently banned from holding a senior insurance role pursuant to s 25A(1) of the Insurance Act and will remain so unless and until that disqualification is set aside.

·   While an adjournment would cause the respondent administrative and cost burdens, those burdens are far less than would be borne than by the applicant were he to be forced to prepare and conduct his review proceedings while a three‑month criminal trial is approaching or in progress:  Meenks Monique v Torrill Pty Ltd and Raymond Bartlett [1999] VCAT 625 at [25] and [26].

·   The applicant would be seriously prejudiced if were required to abandon this review application and re‑apply after the criminal proceedings were completed, assuming that they concluded in a manner favourable to him.

1. The applicant has requested a stay of proceedings until the completion of the criminal proceedings.  However, for reasons similar to those in Re Burroughs', I do not believe that an indefinite stay is desirable or appropriate.  In this case it is appropriate to grant a stay of proceedings for a limited time after which any application for a further stay could be considered on the basis of the then position and prospective timing of the criminal proceedings. 

2. Consequently, I adjourn these proceedings until 5 December 2005 for a further directions hearing on that day or as soon as practicable thereafter to consider the future conduct of the proceedings in the Tribunal.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  16 May 2005

Date of Decision:  6 June 2005
Counsel for the applicant:            Mr A. Athanasiou
Solicitor for the applicant:            Rigby Cook Lawyers
Counsel for the respondent:        Mr P. Hanks

Solicitor for the respondent:        Ms M. Northrop,

Australian Prudential Regulation Authority