Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: distinguished
Gould submits that the Board's decision that it was satisfied of the existence of the ground set out in s 1292(2)(d) was itself a reviewable decision, similar to the decision in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 ( Bond ) that the licensees were no longer fit and proper persons to hold broadcasting licences under s 88 of the Broadcasting Act 1942 (Cth). Counsel for Mr Gould refers to passages in the various judgments in Bond in which it was recognised that the Australian Broadcasting Tribunal's "finding" that licensees were no longer fit and proper persons to hold their licences was itself a decision under an enactment because, although it was also a step on the way to the ultimate decision whether to revoke or suspend the licence or to impose conditions, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the ultimate decision: see Mason CJ at 337, 339; Brennan J at 365; Deane J at 369; Toohey and Gaudron JJ at 377. The Tribunal stated (at [31]) that it was not contested that the decision under review before the Tribunal was the Board's decision to make a suspension order as allowed for by the concluding words of s 1292(2). The Tribunal said that the reaching of a state of satisfaction that the grounds for the making of that order were made out was a step along the way to the ultimate decision and was not itself reviewable. The Tribunal also referred to Bond at 336-338 per Mason CJ. However, Mason CJ qualified his description of the position that "ordinarily" prevailed as mentioned above. Section 1317B(1) of the Law (and of the Act) provided that application might be made to the Tribunal for review of, relevantly, a decision made under the Law (or the Act) by the Board. It is at least clear that the Board's decision to suspend Mr Gould's registration as a liquidator was a decision made under an enactment (cf s 1292(2) of the Law and of the Act) and was reviewable by the Tribunal. I will assume, by reference to the passages from Bond referred to above, that the Board's being satisfied of any of the states of affairs referred to in s 1292(2)(d) is also a decision made under the statute, and that the Tribunal erred in stating otherwise. Nonetheless, I do not see how this avails Mr Gould, because Contentions 2.1, 6.5, 6.6 and 6.7A were relied on by ASIC as supporting that essential intermediate decision, as well as the ultimate decision to suspend Mr Gould's registration. The same principles must govern the question whether it was permissible for the Tribunal to entertain those Contentions, regardless of whether the Tribunal was reviewing the ultimate decision to suspend or the essential intermediate decision in the nature of the making of a finding. I do not think that there is merit in Mr Gould's first submission. Mr Gould secondly submits that an assumption by the Tribunal of jurisdiction over charges that were not previously the subject of a Board determination deprives a member of the profession of his or her right to have a "merits review": appeals from the Tribunal are on questions of law only (see s 44(1) of the AAT Act). The five legal principles and the authorities that Mr Gould cites in support of them are as follows: (a) ASIC must act with reasonable promptness and diligence in prosecuting charges in respect of a matter or complaint that comes to its attention: Herron v McGregor (1986) 6 NSWLR 246 at 254; Gill Herron and Gardiner v Walton (1991) 25 NSWLR 190 at 208A per Kirby P; R v Chief Constable of the Merseyside Police ; ex parte Calveley [1986] QB 424 ( Calveley ); (b) A prosecutor will generally be permitted to have only one "bite of the cherry" in respect of any formal hearing of charges against a defendant in respect of a matter in issue: Walter Construction Group v Fair Trading Administrative Corporation [2005] NSWCA 65 ; (c) A decision by an administrative body or court to stay or to refuse to deal with charges on the ground that their prosecution would be unfair and oppressive to the defendant may prevent them from being re-agitated, even if the fresh proceeding could be conducted without unfairness to the defendant, by analogy to principles which inform the rule against double jeopardy or as a species of double jeopardy: Walton v Gardiner (1993) 177 CLR 378 at 396-398 per Mason CJ, Deane and Dawson JJ; Jago v District Court of New South Wales [1989] HCA 46 ; (1989) 168 CLR 23 at 58 per Deane J; Gill v Walton (1991) 25 NSWLR 190 at 200-202 per Gleeson CJ, at 206-207 per Kirby P; (d) Allegations which, owing to the delay in their being prosecuted, may prejudice the defendant and deny him or her his right to a fair hearing, may be stayed: Jago v District Court of New South Wales [1989] HCA 46 ; (1989) 168 CLR 23 ; (e) If, because of the above matters or otherwise, it would be unfair or oppressive to a defendant to face the charges in question, a tribunal such as the Tribunal, is required to stay or to decline to hear the charges: Re Moline and Comcare (2003) 77 ALD 224 , [2003] AATA 827 ; Hughes Aircraft Systems International v Air Services Australia (1997) 146 ALR 1 at 40-42 per Finn J; Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 332 at 342 per Griffith CJ; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-9 per Mahoney J; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 139 ALR 595 ; Greiner v Independent Commissioner Against Corruption (1992) 28 NSWLR 125.