Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 , 169 FCR 483
Outcome: cited
A related proceeding was also commenced by the Trustee. The Respondents to that proceeding were the Authority and Mr Rickus. In that proceeding, judicial review was sought of the Authority's decision to refuse to return the documents produced by Mr Rickus to the Trustee. That application was dismissed: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 , 169 FCR 483. 14 Leave was given to the Applicants on 28 July 2008 for the discontinuance of the present proceeding. The question of costs was reserved. 15 Now before the Court are two issues, namely: (i) the resolution of the Cross-Claim filed by the First Respondent; and (ii) the order as to costs arising out of the discontinuance of the proceeding. 56 One difficulty was that the Authority sought an opportunity to itself make submissions. The Authority had previously been joined as the Second Respondent, in November 2007. But it had taken no real part in the present proceeding thereafter. Its participation was substantially confined to the related proceeding: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828. The Authority's renewed interest in the present proceeding occurred during the course of submissions in reply being advanced on behalf of Mr Rickus. The Authority, it was said, had an interest in being heard as to whether a person upon whom a notice had been served under s 255 of the 1993 Act thereafter came under a duty such as that now sought to be espoused by the Trustee. Notwithstanding the lateness of its expressed interest, the opportunity for the Authority to file written submissions confined to that issue was not opposed by Senior Counsel on behalf of the Trustee. Directions were made for the filing of written submissions and for submissions in reply by both Mr Rickus and the Trustee. 57 Any contention that, by seeking leave to discontinue its claims as against Mr Rickus, the Trustee was thereby precluded from resisting the Cross-Claim is to be rejected. The abandonment of a claim pursued as an applicant is not considered to be the abandonment of any defence that an applicant may otherwise have to a cross-claim. By seeking leave to discontinue, the Trustee was simply contending that it no longer wished to pursue its own claim for relief -- for whatever reason. The Trustee's decision to seek leave to discontinue the Application in July 2008 may well have been influenced by the fact that it had already obtained copies of most of the documents previously produced to the Authority by Mr Rickus, or by the stage reached in relation to the inquiries being pursued by the Authority. But, whatever the reason which motivated the Trustee, leave was given to discontinue. It thereafter remained a matter for Mr Rickus to decide whether he wished to pursue his Cross-Claim or whether he too would seek to discontinue that action. If the Cross-Claim was to be pursued, the Cross Respondent was entitled to rely upon whatever issues had been legitimately raised in the Defence as filed. A discontinuance of an application is not to be construed in some way as some implied amendment of a defence as filed to a cross-claim. 58 But it was the further contention of Mr Rickus as to prejudice that had the potential to occasion greater procedural difficulty. It was his contention that, had the source of the duty been more fully articulated at the outset of the hearing of the Cross-Claim , there would have been cross-examination of a number of witnesses in order to establish facts that were not otherwise considered to be relevant. A number of such outstanding facts were immediately articulated by Senior Counsel during the course of oral submissions. None of those facts then expressed were seen by Senior Counsel on behalf of the Trustee to be contentious and such as could not be the subject of agreement. A short adjournment was thus granted to enable Senior Counsel for Mr Rickus to more fully consider his position and to determine whether additional facts were also considered to be necessary. That short adjournment, however, provided insufficient time in which to properly consider the matter and the proceeding was adjourned to the following morning. 84 The other basis relied upon by the Trustee was that the documents provided by Mr Rickus were the property of the Trustee. As previously observed, it was not previously considered that an assertion as to property had been made out by the Trustee: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 at [45] , [2008] FCA 828 ; 169 FCR 483 at 494. No reason has been advanced during the course of the present hearing to reach any contrary conclusion. 85 A further submission advanced on behalf of Mr Rickus was that s 299 of the Superannuation Industry (Supervision) Act renders him " immune " from liability, " including an obligation of disclosure ". Although this provision received scant attention during the course of oral submissions, and was not adverted to at all in the Reply to the Defence to the Cross-Claim , it was a provision to which reference was made in written submissions and leave was sought (if necessary) to amend to enable reliance to be placed upon it. 86 It is also an argument which can be shortly dealt with.