Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 (7 November 2007)

Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117

PRACTICE AND PROCEDURE – Australian Prudential Regulation Authority – leave to intervene

Breen v Williams (1996) 186 CLR 71 cited
Pilmer v Duke Group Ltd [2001] HCA 31, 207 CLR 165 cited
Save the Ridge Inc v Commonwealth [2005] FCAFC 203, 147 FCR 97 followed

MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LTD AND ANOR v JOHN RICKUS AND ANOR
ACD 36 OF 2007

FLICK J
7 NOVEMBER 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 36 OF 2007

BETWEEN:	MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LTD First Applicant MTAA SUPERANNUATION FUND (DIRECTOR CO) PTY LTD Second Applicant
AND:	JOHN RICKUS First Respondent AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	CANBERRA

1. Leave is granted to the Applicant to further amend their Amended Statement of Claim and the Amended Application.

3. The Applicant pay the costs of the First Respondent of and incidental to today’s hearing and the application to further amend the Amended Statement of Claim and the Application.

4. The Australian Prudential Regulation Authority be joined as the Second Respondent to the proceedings.

5. The question of costs insofar as the Second Respondent is concerned is reserved.

6. The Second Respondent file and serve any submissions in support of an application that the Applicant pay its costs no later than 22 November 2007 at 5pm.

7. The Applicant file and serve any submissions in support of an application that the Second Respondent not be entitled to its costs, or an order that those costs be paid forthwith, on or before 23 November 2007 at 4pm.

8. The question as to whether the Applicant should pay the First Respondent its costs on an indemnity basis, and the question as to whether an order should be made under Federal Court Rules O 62, be reserved and heard on 26 November 2007 at 9:30am.

9. The First Respondent file and serve any submissions in support of an application for costs on an indemnity basis, together with an order that those costs be paid forthwith, and an indication as to the quantum of those costs, no later than 22 November 2007 at 5pm.

10. The Applicant file and serve any submissions in opposition to either of those two orders no later that 23 November 2007 at 4pm.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 36 OF 2007

BETWEEN:	MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LTD First Applicant MTAA SUPERANNUATION FUND (DIRECTOR CO) PTY LTD Second Applicant
AND:	JOHN RICKUS First Respondent AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Second Respondent

JUDGE:	FLICK J
DATE:	7 NOVEMBER 2007
PLACE:	CANBERRA

1 On 9 October 2007, Gyles J made orders for the hearing and determination separately of two questions pursuant to O 29, r 2 of the Federal Court Rules.

His Honour noted that the relevant paragraphs were paragraphs 1–3, 36–46 and 70–78 of the Amended Statement of Claim.

3 When making those orders, his Honour expressed some hesitation as to the desirability of doing so but was persuaded to make the orders by reason of the urgency in which the matter should be determined. That urgency arose out of a forthcoming supervisory visit to be conducted by APRA on 10 December 2007.

4 The source of the obligation imposed upon the Respondent to keep the First Applicant ("the Trustee") so informed was said to be a fiduciary duty owed by Mr Rickus. So much is apparent from the terms of the Amended Statement of Claim and from the transcript of the proceedings before Gyles J on 4 October 2007. Written submissions as filed on behalf of both the Respondent and APRA deny the existence of any such duty. Reliance was placed in those submissions inter alia upon the decision in Breen v Williams (1996) 186 CLR 71. Particular reliance was placed upon the joint judgment of Gaudron and McHugh JJ at 113. Reference may also be made to like observations made subsequently in Pilmer v Duke Group Ltd [2001] HCA 31, 207 CLR 165 at 197–8 by McHugh, Gummow, Hayne and Callinan JJ.

5 At the commencement of proceedings today, Senior Counsel for the Trustee sought leave to further amend both the Amended Statement of Claim and the Amended Application. The gist of those amendments was to abandon reliance upon a fiduciary duty as the source of the duty and to now place reliance upon the status of the Respondent as an agent. The application to amend, it is understood, was not opposed, but it was contended by both APRA and the Respondent that the consequence of granting such leave was that it would no longer be appropriate to resolve either of the questions as posed by Gyles J, or possibly even some form of revised questions.

6 It is considered that leave should be granted to amend the Amended Statement of Claim and the Amended Application but that the consequence of doing so is that the orders made by Gyles J on 9 October 2007 should be vacated.

7 The Trustee contends that its factual case in respect to those parts of the Amended Statement of Claim is now closed and that it would not wish to adduce further evidence if the questions, as posed by Gyles J, could have been resolved today. If the price it had to pay in having those questions resolved today was that it would not cross-examine Mr Rickus, the Trustee was prepared to pay that price. Notwithstanding the submissions on behalf of the Trustee, it is considered that an inevitable consequence of granting leave to further amend is that the orders made by Gyles J should be vacated. Important questions arise as to the duty imposed upon persons such as Mr Rickus to disclose to his principal the substance of the materials he provided to the Authority pursuant to a notice served under s 255(1) of the Superannuation Industry Supervision Act 1993 (Cth). It is undesirable that such questions should be resolved by reference to a confined construct of facts. The Respondent, it is understood, is uncertain as to whether or not he would wish to supplement the evidence sought to be relied upon by the Trustee. Separate from any reservation expressed by the Respondent, the Court is also concerned to ensure that all facts relevant to a determination of the ambit of the agency said to descend upon Mr Rickus are fully explored. The very fact that the Trustee, but for its desire to have the issues determined quickly, may also potentially wish to cross-examine the Respondent, only provides further reason for reservation.

8 Another area of factual uncertainty potentially surrounding the application is whether or not the documents produced by Mr Rickus pursuant to the notice were his personal property or the property of the Trustee. The submissions as made orally today by the Trustee were also at odds in some respects with its written Outline of Submissions as previously filed. It is not appropriate to formulate questions, or to answer questions ordered to be separately determined pursuant to O 29 of the Federal Court Rules, where such uncertainty prevails. It is unnecessary to cite further authority for the proposition that the procedure contemplated by O 29 should be adopted with caution and is a procedure fraught with difficulties, other than the decision of the Full Court in Save the Ridge Inc v Commonwealth [2005] FCAFC 203, 147 FCR 97.

9 It should further be noted that at the commencement of the proceedings today, APRA sought leave to intervene pursuant to s 320 of the Superannuation Industry Supervision Act 1993 (Cth). No reliance was placed by APRA upon O 6, r 17 of the Federal Court Rules. Neither the Trustee nor the Respondent sought to contend that the Authority could not intervene because the proceedings presently before the Court did not relate to a matter arising under the 1993 Act within the meaning of s 320(1).