Proctor : August 2019
45 PROCTOR | August 2019 HIGH COURT AND FEDERAL COURT convictions into account. The appellant was convicted of offences in 1978 and 1997. At all relevant times in this litigation, those convictions were “spent” within the meaning of Pt VIIC of the Crimes Act 1914 (Cth). In 2014, a delegate of ASIC made a banning order in respect of the appellant because he was not a fit and proper person to engage in credit activities. On review, the AAT took into account the spent convictions. Division 3 of Pt VIIC had the effect, relevantly, that a “Commonwealth authority” is prohibited from taking into account a spent conviction (including findings of guilt without conviction). “Commonwealth authority” includes ASIC and the AAT. That plainly precluded the delegate from taking the spent convictions into account. However, s85ZZH(c) of the Act provides that Div.3 of Pt VIIC does not apply in relation to the disclosure of information to, or the taking into account of information of, a tribunal established under Commonwealth law. Both the judge at first instance and the Full Court held that s85ZZH(c) allowed the AAT to take the spent convictions into account on review. The High Court held unanimously that the jurisdiction of the AAT on review of the ASIC decision under the National Consumer Credit Protection Act 2009 (Cth) is not affected by s85ZZH(c). The jurisdiction of the AAT is to stand in the shoes of the decision maker, subject to the same constraints, except where altered by clearly expressed statutory indication. In this case, s85ZZH(c) did not alter the statutory jurisdiction of the AAT to allow it to take account of a spent conviction. The statutory language was held ultimately to be insufficient to have that effect. Bell, Gageler, Gordon and Edelman JJ jointly; Kiefel CJ, Keane and Nettle JJ jointly concurring. Appeal from the Full Federal Court allowed. Andrew Yuile is a Victorian barrister, ph 03 9225 7222, email email@example.com. The full version of these judgments can be found at austlii.edu.au. Federal Court Administrative law – whether an executive policy is inconsistent with a statute and unlawful In Minister for Home Affairs v G  FCAFC 79 (21 May 2019) the Full Court allowed the Minister’s appeal and set aside a declaration by the trial judge that part of the Australian Citizenship Instructions, a policy document, was inconsistent with the Australian Citizenship Act 2007 (Cth) and unlawful. The trial judge had also held that the decision of the AAT to refuse the applicant’s application for Australian citizenship should be set aside and remitted for determination according to law. There was no appeal from those orders. Note: A summary of the trial judge’s decision in G v Minister for Immigration and Border Protection  FCA 1229 was published in this column in the November 2018 Proctor. The Full Court addressed the key principles and cases applicable to whether an executive policy is inconsistent with a statute and unlawful at -. The Full Court rejected G’s submission that it is not open to the Minister to challenge the declaration because he has not sought to appeal from the orders of the primary judge setting aside the decision of the AAT and remitting the matter for determination according to law. Murphy, Moshinsky and O’Callaghan stated at : “The declaration is a discrete matter and there is no inconsistency between the Minister accepting the correctness of the orders setting aside the decision of the Tribunal and remitting the matter, and challenging the correctness of the declaration.” Practice and procedure – witnesses – whether court should make order overriding express confidentiality obligation of potential witnesses Zantran Pty Limited v Crown Resorts Limited  FCA 641 (8 May 2019) is a securities class action. The essence of the alleged case of Zantran Pty Limited (Zantran) is that the promotional activities of Crown Resorts Limited (Crown) in mainland China directed to recruiting Chinese ‘high-roller’ gamblers to gamble in its casinos in Melbourne, Perth and Macau were illegal under Chinese criminal law. It is uncontentious that on 6 February 2015 the Chinese Government announced a crackdown on the promotion of overseas gambling to Chinese nationals. Nineteen Crown employees were ultimately charged with criminal offences related to the promotion of gambling; they pleaded guilty and were convicted in China. Based on these and other matters, Zantran alleges in its class action in the Federal Court that Crown breached its continuous disclosure regime under ASX listing rules and s674 of the Corporations Act 2001 (Cth), and engaged in misleading or deceptive conduct. The interlocutory issue before the court was to whether Zantran’s legal representatives should be permitted to confer with 19 named former Crown employees to obtain witness statements or outlines of evidence and/or to obtain copies of documents connected with their criminal prosecution and conviction. The former Crown employees had entered into an agreement with a Crown subsidiary with express confidentiality obligations. Crown accepted that its former employees could give evidence at the trial but argued that they could not confer with Zantran’s legal representatives prior to trial, and that if Zantran wished to call them to give evidence they had to be called ‘cold’. Murphy J held it was appropriate to make orders to relieve the former Crown employees of their contractual confidentiality obligations for the limited purpose of allowing them to provide witness statements prior to trial and to provide copies of documents produced by the prosecution or the court in China in connection with their criminal prosecutions and convictions (at ). The court’s decision was particularly based on the obligation of the court under s37M of the Federal Court of Australia Act 1976 (Cth) (FCA) to exercise its powers in a way that best promotes the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (at  and -). The court also relied on its power to make such orders under ss21, 23, 37P and 33ZF of the FCA. The class action nature of the proceedings had relevance given the court’s supervisory and protective role in relation to class members’ interests (at ) and the obligations of Zantran and its legal representatives to class members (at -). Murphy J said at : “In terms of the competing public interest, I accept that there is a public interest in upholding contractual bargains, including as to confidence. But in my view, in the circumstances I have described, that interest is outweighed by the public interest in the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. In this regard it is relevant that Crown does not argue that it will suffer any commercial disadvantage in the sense of disclosure of trade secrets or confidential information that could be used by a competitor if the proposed orders are made, and relevant that Crown no longer engages in the same promotional activities in China. Relieving the employees of their confidentiality obligations for the limited purpose of providing a witness statement and/or documents regarding their criminal prosecution and conviction will involve the minimum necessary interference with the employees’ obligations of confidence.” The court discussed the principal authorities relevant to whether witnesses should be relieved of contractual obligations of confidence at -. Murphy J explained why he reached different conclusions to those reached in some of those cases or why certain of the cases were distinguishable or similar (at -). Practice and procedure – litigation guardian – whether the advice of the applicants’ legal representative constitutes advice of an ‘independent lawyer’ Brindle v The Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane operating as Brisbane Catholic Education  FCA 609 (2 May 2019) and Lewis v The State of Victoria (Department of Education and Training)  FCA 714 (21 May 2019) are two recent examples of applications by a litigation representative for approval of a settlement under r9.70 of the Federal Court Rules 2011 (Cth). In both cases the settlements were approved. Rule 9.71(2)(c) provides that the interlocutory application for approval must be accompanied by “an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity”. On this requirement, Kenny J explained in Lewis at  (omitting case citations): “In previous decisions, it has been held that the requirement in r9.71(2)(c) for the opinion of an ’independent lawyer‘ did not necessitate the provision of an opinion from a lawyer who had no previous association with the proceeding. Rather, this required that the lawyer providing the opinion did so ‘in furtherance of the lawyer’s duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding’... Other judges have followed the same approach... This does not exclude the possibility that, in the appropriate case, the Court may form the view that the opinion of a lawyer with no previous association with the proceeding is needed, as, for example, happened in Gray v State of Victoria (Department of Education and Early Childhood Development  FCA 353 (Murphy J) .” Reeves J had undertaken a similar approach on the ‘independent lawyer’ issue in Brindle at . Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.