Frugtniet & Anor v Administrative Decisions Tribunal (Appeal Panel) & Anor [2006] HCATrans 45 (10 February 2006)

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Frugtniet & Anor v Administrative Decisions Tribunal (Appeal Panel) & Anor [2006] HCATrans 45 (10 February 2006)

Last Updated: 20 February 2006

[2006] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S410 of 2005

B e t w e e n -

SUZANNE FRUGTNIET

Applicant

and

ADMINISTRATIVE DECISIONS TRIBUNAL (APPEAL PANEL)

First Respondent

COMMISSIONER FOR FAIR TRADING

Second Respondent

Office of the Registry
Sydney No S411 of 2005

B e t w e e n -

BRIAN FRUGTNIET

Applicant

and

ADMINISTRATIVE DECISIONS TRIBUNAL (APPEAL PANEL)

First Respondent

COMMISSIONER FOR FAIR TRADING

Second Respondent

Applications for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2006, AT 11.56 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC: May it please the Court, in both these applications I appear with my learned friend, MR D.A. McLURE, for the applicants. (instructed by Slattery Thompson)

MR N.J. WILLIAMS, SC: May it please the Court, in both these matters I appear with MR G.M. ELLIOTT for the second respondent. (instructed by Office of Fair Trading)

GLEESON CJ: Yes, Mr Williams. It is convenient to hear them together, I take it?

MR WILLIAMS: It is, your Honour.

GLEESON CJ: Mr Street, there is a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the first respondent in each matter that the first respondent will not be appearing today. The solicitor for the first respondent seeks, if appropriate, orders for the removal of the first respondent from the proceedings.

MR STREET: Your Honour, if there is a grant of special leave I would accept that that would be an appropriate order. Your Honour, this application raises an important question as to the proper approach by a court to the construction of an essential jurisdictional requirement under the Travel Agents Act. Your Honour, the Travel Agents Act (NSW) has provisions 20 and 21 which are in practical terms identical to similar provisions both in Queensland and Tasmania and I will hand those up to your Honour in a moment if I may.

Essentially what we say arises in this case is the importance of recognising the jurisdictional nature of the provision in its construction in which the Court of Appeal in this case then failed to ensure that it required, as the mandatory nature of the legislation imposed, strict compliance with that jurisdictional requirement. What in substance the Court of Appeal did was provide for substantial compliance and in that regard the jurisdictional nature of the provision was critical to its construction and throws up an important question.

The second aspect in relation to the character of the provisions in respect of an essential jurisdictional requirement that was not taken into account as a matter of construction by the Court of Appeal was that this was in essence entrenched natural justice in the statute itself. It entrenched a procedure which was to be satisfied as a requirement in order to permit holding a jurisdiction. Both the tribunal at first instance, that is the Commissioner and the tribunals themselves, the first tribunal and the appeal tribunal, were required to be satisfied of the jurisdictional requirement.

Section 20, in our respectful submission, had to be construed in light of its true character. The Court of Appeal in essence approached section 20(2) on a basis that the term “reasons” in subsection (2) had two different meanings and I will take your Honours to the judgment in a moment in that regard.

So that in the approach to construction they first of all assumed that two different meanings were found in paragraphs (a) and (b) of subsection (2) in describing reasons. Secondly, when they came to determine whether they were the same they approached the matter from a substantial compliance viewpoint, we respectfully submit as a matter of substance rather than strict compliance recognising the essential nature of this provision.

Your Honours, can I just in that regard indicate that it was a consequence that the Court of Appeal accepted as a matter of probability that it would follow that this was an essential jurisdictional requirement. What we respectfully submit is that it was patently such and that was material to its construction and that is the question of importance.

Your Honours, dealing with the Court of Appeal’s reasoning if I may, if your Honours go first of all to page 137, paragraph 23, line 31, your Honours will see the proposition developed:

However “reasons” as found in paras (a) and (b) has a different meaning.

Your Honours, in our respectful submission, that is plainly erroneous. Paragraph (a), as your Honours would appreciate, in section 20(2) picks up verbatim the substance of the matter identified in subsection (1)(i). It cannot possibly be that the reference to reasons in paragraph (a) simply means the content of subsection (1)(i). It must mean more.

Equally, when construing subsection (2)(b) it is plain that it is referring back to the very same extension of reasons as required under paragraph (a). That their Honours approached this in somewhat of an unusual way is also apparent from their reference to the proposition that in essence the reasons were nothing more than what was identified in subsection (1). That simply cannot follow given the particular language in subsection (2)(a) that picks up in itself the content of paragraph (i) and this is a procedure, as your Honours would appreciate, is an essential procedure, in our respectful submission, for the purpose of action against the person not being the licensee.

Your Honours, the Court of Appeal at page 136, after referring to the grounds that were advanced at about line 10 identify something that is part of their reasoning of the argument. The reasons are one or more of the enumerated reasons or grounds for taking disciplinary action. That that was their approach, your Honours, is apparent from page 137 at line 7:

The section would be complied with, as a matter of form, if the notice simply specified one or more of the statutory reasons without further details.

Your Honours, that, in our respectful submission, is the source of error in the approach to section 20(1). The second aspect of error that has crept into the approach by the Court of Appeal follows from not characterising this as a jurisdictional requirement in terms of strict compliance and not recognising its true nature in that regard as being statutory natural justice because when they came to analyse whether the reasons were the same what they looked at was whether they could find additional reasons or whether they could find aggravated reasons.

Their approach, in our respectful submission, failed to recognise as a statutory natural justice procedure what was required was to look at were the facts to support these reasons the same if one is going to approach it in identifying whether they are the same reasons. The facts to prove the reasons in respect of the licensee’s notice were plainly different to each of the facts in respect of the applicants. In our respectful submission, as the facts were different it cannot be said – that is the facts that would be needed to prove the same – cannot be said that the reasons were the same.

Indeed, if one descends into the detail your Honours would appreciate in respect of, if I can call her the first applicant, Suzanne Frugtniet, in her case one of the features that was raised was an alleged representation of pretending to be someone else. In the content of the notice to the licensee that was a singular representation at an isolated point of time. In the notice to the first applicant so described it was in essence continuing. Some months later is the discovery apparently of the alleged deception, the pretence. Plainly different facts would be required to prove that. Plainly they constitute different reasons.

Turning to the second applicant, your Honours, in our respectful submission, again there were different facts that would have been required to prove the matter of content in respect of the reasons concerning the second applicant, Brian Frugtniet, so described. In that regard, your Honours will recall that there is a reference at the outset to a person being notified to be a manager of the travel agent business. In the content of the notice to the individual person, Brian Frugtniet, there is content that the particular person declined to accept such a position. The consequence of that and its implication in respect of fitness is clear. It is a different reason. It was different content.

In our respectful submission, the essential statutory requirements flow from the language of section 21(1) of the provision which dictates after compliance with section 20 and your Honours will see it at page 133, if it is convenient, of the Court of Appeal’s judgment. We have handed up a copy of it. At line 10 your Honours can see the requirement for compliance with section 20 and then in paragraph (f):

where a notice was served on a person under section 20(2)(b) –

in essence, under section in terms of compliance -

disqualify the person in accordance with subsection (2).

Your Honour, the approach we respectfully submit that was adopted by the Court of Appeal was in essence one of looking for simply substantial compliance and that is supported, if one goes to page 140 at line 50 where there is the reference to the refusal in respect of Collins and after an inconsequential statement. In other words, the court was evaluating whether or not there was a substantial satisfaction rather than strict compliance with the requirement of the language found in the section that the reasons be the same.

Your Honours, can I hand up, if it is convenient, a copy of the Tasmanian and Queensland provisions that are in identical form.

GLEESON CJ: Thank you.

MR STREET: Your Honours, if I can first hand up what are sections 32 in the Travel Agents Act 1987(Tas). Your Honours will see that relevantly that is the same as section 20 and if your Honours turn to the next annexure your Honours will see it is the Travel Agents Act 1988 (Qld) and section 24 contains an equivalent to section 20, the same language in respect of the provisions that here arise. Your Honours, I apologise for handing up in a separate section but to the extent relevant section 21 is also mirrored in both of those statutes. Can I hand up copies of that, your Honour. It is section 25 in the Queensland Act. It is section 33 in the Tasmanian Act.

So, your Honour, in our respectful submissions, the issues thrown up by this case in terms of the approach to construction of an essential jurisdictional requirement are of general application and of importance. It is one which, in our respectful submission, there is a clear error in the approach of the Court of Appeal in addressing that issue, by failing to take into account its character and in holding that the reasons are the same. Unreversed by this Court it is likely that the Court of Appeal’s decision would continue to be applied in construing this legislation that continues to exist.

Your Honours, I do also respectfully submit that this is a case, notwithstanding my learned friend’s reference to the background of these individuals as set out in some of the tribunal comments, where there has in fact been a serious failure to comply with an essential jurisdictional requirement as a result of which these applicants have had a life ban imposed on them, a life ban imposed from an industry in respect of which they plainly had at least some 16 years of experience at the time of the first tribunal’s decision.

Your Honours, it is in those circumstances where there is, in our respectful submission, also substance in this being an appropriate case for the visitorial jurisdiction under section 35A(b) where these applicants have in essence had a life banning imposed by entities without jurisdiction. If the Court pleases.

GLEESON CJ: We do not need to hear you, Mr Williams.

In both of these matters we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

MR WILLIAMS: If the Court pleases.

GLEESON CJ: We will adjourn for a short time to reconstitute as a Bench of three.

AT 12.09 PM THE MATTERS WERE CONCLUDED