Case: Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516
Outcome: considered
On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons. 3 I rejected that submission and indicated that, in my opinion, the remittal includes exercise of the discretion whether or not to grant relief under s 16 of the ADJR Act. The Full Court dealt with the discretion issue in Kamha [2005] FCAFC 248 ; 147 FCR 516 at [76] [90]. The existence and possible application of the s 16 discretion was affirmed. The Full Court did not purport to exercise that discretion for itself. The Full Court decision does not preclude the application of the Federal Court Rules , including those relating to summary dismissal. The order of remittal is not limited in any way and cannot be read down. The result of the Full Court appeal is that only ground 1(b) in respect of the satisfaction decision and ground 2(b) in respect of the discretionary decision in the further amended application have been disposed of. All of the remaining grounds are open, subject to the limitations arising out of what the Full Court had to say under the heading "Reasons for deciding to disqualify". The reconsideration must be conducted in the light of the circumstances that exist at the present time. I propose to reconsider the issue of discretion before moving to complete the hearing of the remaining issues on the merits. Certain events occurring after the previous decision now need to be taken into account. 7 It is clear enough that, if the inevitable disqualification had taken place, the applicant could have exercised the internal review and made an application to the AAT for an immediate stay and thereafter maintained confidentiality through that process and any consequent appeal to the AAT. Counsel for the applicant naturally sought to rely upon what was said by the Full Court as to "status" (see Kamha [2005] FCAFC 248 ; 147 FCR 516 at [85] ). "Status" is an unusual way of describing an administrative disqualification that is stayed and is subject to full confidential internal and external review on the merits. Even in the case of bankruptcy by court order, a successful appeal means that it is as if sequestration had never occurred ( de Robillard v Carver (2007) 159 FCR 38 per Buchanan J at [141] [150], agreed with by Moore and Conti JJ at [1]). Reliance is also placed upon the statement "that may be a matter of prejudice..." ( Kamha [2005] FCAFC 248 ; 147 FCR 516 at [85] ). No fact or circumstance indicating potential prejudice is identified. I cannot discern any. Nonetheless, I will take into account the possibility of some unidentified prejudice by reason of the statutory process being followed to decision by the AAT. 9 Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.