Masu Financial Management P/L v FICS and Julie Wong (No 2) [2004] NSWSC 829

Reported Decision : 50 ACSR 554 (2005) 23 ACLC 215

New South Wales Supreme Court

CITATION : Masu Financial Management P/L v FICS and Julie Wong (No 2) [2004] NSWSC 829 HEARING DATE(S) : 15/06/04, 16/06/04 JUDGMENT DATE : 15 September 2004

JUDGMENT OF : Shaw J DECISION : Accordingly, I propose that an order should be framed in terms which would remit the matter to a differently constituted panel in accordance with the law set out in this judgment. Subject to any further argument, having regard to the non-active role played by the second defendant and the nature of the first defendant, I propose that no order for costs be made in relation to these proceedings, including the argument as to the constitutionality of FICS. The plaintiff must provide short minutes of order within seven days. In the absence of disagreement as to the form of such orders, they can be entered without the need for any further proceedings in court.

CATCHWORDS : Administrative law - Whether the plaintiff is correct in asserting that FICS is amenable to judicial review or, in the alternative, whether FICS is contractually bound to the plaintiff (Masu) in a way which gives rise to similar duties - Whether FICS bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which used to be called natural justice. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 Bromley v South Australia (1990) 55 SASR 309 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Dorf Industries Pty Ltd & Box Emery & Partners (a firm) v The Honourable P B Toose CBE QC (1994) 54 FCR 350; (1994) 127 ALR 654 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 [115]-[117] at 790-791 CASES CITED : Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 Nardell Colliery Pty Ltd v New South Wales Coal Compensation Review Tribunal [2003] NSWSC 462 Pettitt v Dunkley [1971] 1 NSWLR 376 Potts v Miller (1940) 64 CLR 282 Public Service Board (NSW) v Osmond (1985) 159 CLR 656 R v Disciplinary Committee of Jockey Club; Ex parte Aga Khan [1993] 2 All ER 853; [1993] 1 WLR 909 R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] QB 815 State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 Typing Centre of New South Wales v Toose (unreported, 15 December 1988, SCNSW) Westminster City Council v Great Portland Estates plc [1985] AC 661 Masu Financial Management Pty Ltd (Plaintiff) PARTIES : Financial Industry Complaints Service Ltd (First Defendant) Julie Wong (Second Defendant) FILE NUMBER(S) : SC 30107 of 2002 N Perram (Plaintiff) COUNSEL : J Sexton SC (First Defendant) H Burmester QC (Intervenor Cth A-G) J Higgisson (Intervenor Cth A-G) McLachlan Chilton (Plaintiff) SOLICITORS : R Giles (First Defendant) T Griffith (Second Defendant) A Buckland (Intervenor Cth A-G)