FEDERAL COURT OF AUSTRALIA BGL Corporate Solutions Pty Ltd v Australian Prudential Regulation Authority [1999] FCA 420 SUPERANNUATION – industry regulation – returns lodged using applicant's software – returns to be lodged in approved form as required by s 36 of Superannuation Industry (Supervision) Act 1993 – decision made that returns lodged using applicant's software were not in approved form – whether decision correctly made ADMINISTRATIVE LAW – application to review decision under Administrative Decision (Judicial Review) Act 1974 – whether application a "person aggrieved" within the meaning of s 5 of Administrative Decision (Judicial Review) Act 1974 PRACTICE AND PROCEDURE – application to amend originating application – application to amend brought out of time – whether proper to extend time in the circumstances WORDS AND PHRASES – "person aggrieved" Administrative Decisions (Judicial Review) Act 1974 (Cth) Superannuation Industry (Supervision) Act 1993 s 36 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed BGL CORPORATE SOLUTIOINS PTY LTD v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY NO. VG 100 of 1998 HEEREY J 24 MARCH 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 100 of 1998 BETWEEN: BGL CORPORATE SOLUTIONS PTY LTD (ACN 054 355 243) Applicant AND: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent JUDGE: HEEREY J DATE OF ORDER: 24 MARCH 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application to amend the application is rejected. 2. The application is dismissed with costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 100 of 1998 BETWEEN: BGL CORPORATE SOLUTIONS PTY LTD (ACN 054 355 243) Applicant AND: AUSTRALIAN PRUDENTIAL REGULATOIN AUTHORITY Respondent JUDGE: HEEREY J DATE: 24 MARCH 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant BGL Corporate Solutions Pty Ltd ("BGL") has brought an application under the Administrative Decisions (Judicial Review) Act 1974 (Cth) ("AD(JR) Act") in relation to certain decisions or alleged decisions made by the respondent and its predecessor the Insurance and Superannuation Commissioner in connection with superannuation returns prepared with software which BGL markets. 2 When the case was called on yesterday, counsel for the respondent advanced argument in support of a notice of objection to competency. That argument, and some evidence and cross‑examination in connection therewith, occupied yesterday and continued today. In the course of argument counsel for BGL indicated that he wished to amend its application. After an adjournment he produced a proposed amended application and I shall now, having heard argument, rule on that application. 3 The initial application, with the proposed amendments in bold type, seeks to review decisions: "1(a) made 27 February 1998 that the annual return of the Kyrou Superannuation Fund received by the Insurance and Superannuation Commission on 31 December 1997 ("the return") was not in the approved form as required by section 36 of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SIS Act") and therefore was not a valid lodgment. 1(b) made on or about 14 January 1998 and operational until approximately 19 March 1998 that annual returns of Superannuation Funds would not be accepted as valid lodgments if any part of the return was generated by BGL Simple Fund Software ("BGL"). 1(c) made between 14 January 1and 4 March 1998 to send out: (a) 27 pro forma letters in the form exhibited as exhibit "RME-4"; (b) 8 pro forma letters in the form exhibited as exhibit "RME-5"; (c) 123 pro forma letters in the form exhibited as exhibit "RME-6" (each as exhibited to the affidavit of Robert Eaton sworn 8 September 1998) to the lodger of the returns the subject of each letter, for the reason that the diskette containing the relevant return had been prepared utilising in part or in whole the applicant's software program "SIMPLEFUND" and contained alleged errors or was suspected of containing the same." 4 The letters referred to were from the respondent to trustees of various superannuation funds. The form of exhibit "RME-4" was as follows (formal parts omitted): "Dear Trustee ISC ANNUAL RETURN The enclosed annual return for the […] Superannuation Fund was received by the ISC on 30 December 1997. Unfortunately, it is not in the 'approved form' as required by section 36 of the Superannuation Industry (Supervision) Act 1993 and is therefore not a valid lodgement. Either no diskette was provided or the diskette provided could not be processed satisfactorily. I note that the return was prepared using software provided by the BGL Corporate Solutions (BGL). This software is not ISC approved and is not entirely compatible with the ISC's diskette processing system. BGL have been informed of this and were asked not to market their product. For your convenience, I have enclosed a new diskette containing the ISC's diskette lodgement program and data specific to your fund. If the return is re-submitted using this program within 14 days of the date of this letter, I will accept 30 December 1997 as the lodgement date and no late lodgement penalties will apply. Please read the instructions and information guide carefully to ensure that the re-submitted return (including trustee certificate and audit report) is completed correctly. When lodging the new return please include a copy of this letter. If you have any queries on this matter, please call 02-6213 5457, mentioning your use of the BGL product. R. Eaton (sgd) Russell Eaton Supervision Branch 13 January 1998" 5 The exhibits 'RME-5" and "RME-6" were in similar terms except that they omitted the paragraph commencing "I note that the return …" 6 Insofar as the proposed amendments seek to review decisions not the subject of the initial application, they are out of time: AD(JR) Act s 11(3). BGL has to establish positively that it is proper to extend time and show an acceptable explanation for its delay. Also, the merits of the substantive application are relevant considerations: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 7 It is clear from the way the case was initially put by counsel for BGL that the two decisions challenged in the initial application were essentially two aspects of the one decision. The decision to reject the Kyrou return was but a manifestation of what was said to be a blanket ban on all returns generated by BGL software. As counsel put it, the Kyrou decision was "a representative decision of a greater decision." 8 The problem with that case is that it is clear that there have been a substantial number of decision of returns prepared on BGL software which were accepted and processed by the respondent. In an affidavit sworn by Mr Eaton and filed in September last year, it appeared that there were some fifty-one returns on BGL software which had been accepted on 4, 5 and 9 March 1998. That figure has been brought up to date by an affidavit filed last week which shows there were some 282 BGL software generated returns which had been accepted. Counsel for BGL said: "My learned friend makes the point that on the evidence - and I don't wish to inaccurately paraphrase his submissions, but he makes the point, 'Look, by definition if you've got 282 returns that have been processed, it must be that there cannot have been a blanket decision to reject all BGL diskettes,' and that must be correct, with respect." 9 The proposed formulation of decision 1(b) may be seen as an attempt to resurrect the blanket ban argument, but limited to a short period from 14 January to 19 March 1998. In so doing, counsel relied on an internal e-mail in the respondent's office dated 14 January 1998. However, the evidence shows that of the fifty-one returns, forty were loaded into the system, or subsequently approved, by recipients of that e-mail, which tends to show that the alleged policy was not in operation, even on the limited basis now suggested. 10 The complaint about the decision 1(c) was in substance a new matter. As counsel conceded, there was: "plainly no blanket decision to reject all BGL diskettes merely because they were BGL diskettes ." 11 However there has been a decision to issue some 158 letters in substantially similar form as a response to the encountering of difficulties with BGL software, or the suspicion of difficulties. 12 It is apparent from further and better particulars supplied by BGL that letters in the form complained of were known of as early as the date of those particulars, that is May last year, and probably earlier. No explanation has been advanced for the failure to bring an application within the time limited by the AD(JR) Act. This is a specific statutory scheme and cases dealing with amendments of pleadings and the like are in my opinion not directly on point. For that reason alone I would not be disposed to allow the amendment. 13 In any case, it seems to me the argument is totally lacking in merit. Whether a BGL‑generated return can be processed or not is simply a question of fact. Even if the respondent said such a return could not be processed when in fact it could, no error of law is disclosed. A complaint is made that there was no proper approval of any diskette‑lodging system prior to 30 January 1998. But in any case I think the position of the respondent was that it was required to receive returns in an approved form containing information as was required - see s 36(1) of the SIS Act and whether or not there was a formal specification of the kind contemplated by s 36(3). 14 It was open to the respondent, in discharging its duty to administer the SIS Act, to indicate in a practical way the form in which it would receive annual returns. In deciding whether particular diskette forms were or were not satisfactory, or compatible with its existing system, it was simply making decisions of fact in the course of its administration. Likewise, I fail to see that there was any legal requirement on the respondent to discuss with persons who had lodged returns on BGL software the particular defects or problems which had arisen. 15 Finally, I must say – although this matter has not been canvassed to any great degree - I have very serious doubt as to whether BGL has standing as a "person aggrieved" for the purpose AD(JR) Act,s 5. The SIS Act that the respondent is administering is concerned with the supervision of superannuation funds. It is not legislation dealing with the regulation or quality control of software. If, in the course of its administration, the respondent makes a decision which may have some commercial impact on a third party supplier of software, or any other product, to persons who have statutory obligations to lodge returns with the respondent, it does not seem to me that such decisions are reviewable at the suit of such a third party. As was said in argument, if the respondent decided that paper returns were to be prepared on re-cycled paper there might be serious commercial consequences for a stationer who had hitherto supplied returns but was unable to produce them with re-cycled paper. But the factual merits of such a decision would be outside the purview of the AD(JR) Act. For those reasons I reject the application for amendment. 16 Decision 1(a) is moot. The return has been accepted. 17 The application will be dismissed with costs including reserved costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 16 April 1999 Mr Harrison and Mr Roberts Counsel for the Applicant: Solicitor for the Applicant: Andrew Gray & Associates Counsel for the Respondent: Mr C M Maxwell QC and Mr Frezzetto Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 March 1999 Date of Judgment: 24 March 1999