CATCHWORDS Administrative Law - joinder of party - amendment of application for Order of Review. Administrative Decisions (Judicial Review) Act 1977, ss. 11, 15 and 16(1)(d) RALKON AGRICULTURAL COMPANY PTY. LTD. Vv. ABORIGINAL DEVELOPMENT COMMISSION No. G 50 of 1981 CORAM: JENKINSON J. PLACE: MELBOURNE DATE: 11 AUGUST, 1983 ™ IN THE FEDERAL COURT OF AUSTRALIA ) ! SOUTH AUSTRALIAN DISTRICT RAGISTRY ) NO. G 50 of 1981 GENERAL DIVISION ) : BETWEEN: RALKON AGRICULTURAL COMPANY PTY. LTD. Applicant AND: ABORIGINAL DEVELOPMENT COMMISSION Respondent JUDGE MAKING ORDER: JENKINSON J. WHERE MADE: MELBCURNE DATE OF ORDER: 11 AUGUST, 1983 THE COURT ORDERS THAT: l. Point McLeay Community Council Incorporated be added as a party respondent to the application. 2. The title of the apolication be amended accordingly. 3. The application be amended to accord in its terms with the terms set forth in the schedule to this order. 4. Service be effected forthwith in compliance with the requirements of Order 7 Rule 2(1i)(b) of the Federal Court Rules on Point McLeay Community Council Incorporated of a -sealed copy of this order and of the amended application and of a copy of tne applicant's amended points of claim o filed 11 March 1985. 5. The costs of each respondent of each of the motions of which notice was filed 17 March 1983 and 11 April 1983 respectively be taxed and be paid to that respondent by the applicant. THE SCHEDULE AMENDED APPLICATION FOR ORDER FOR REVIEW Application to review (i) ~ the decision of the respondent Aboriginal Development Commission made on or about 23 March 1981 to offer to the respondent Point McLeay Community Council Incorporated a lease of certain property situated at or near Point McLeay in the State of South Australia known as "Bartlett's Farm" and being the whole of the land contained in Certificate of Title Register Book Volume 1069 Folio 7 Volume 2308 Folio 62 Volume 3424 Folio 66 Volume 3631 Folio 145 : Volume 4083 Folio 611 Volume 4087 Folio 751, 752 and 753 Volume 4165 Folio 53 and Land Grant Register Books : Volume 1069 Folio 34 Volume 1631 Folio 195 Volume 1798 Folio 31 Volume 1814 Folio 61 Volume 2056 Folio 141 Volume 3043 Folio 87 Volume 4165 Folio 517 upon certain terms and conditions and (i1) the decision of the respondent Aboriginal Development Commission made in or about July 1981 to renew the offer to grant and to grant to the respondent Point McLeay Community Council Incorporated a lease of the said land upon certain terms and conditions. THE APPLICANT IS AGRRIEVED BY THE DECISIONS BECAUSE: l. The decisions were made without proper consideration to submissions made by the applicant; 2. The decisions were made without proper consideration of the history of the applicants farming operations on the property; 3. The decisions were made on erroneous principles. 4. 5. The decisions were made without proper regard to all available information; The decisions were made in bad faith. THE GROUNDS OF THE APPLICATION ARE That a breach of the rules of natural justice occurred in connection with the making of the decisions; That the person who purported to make the decisions did not have the jurisdiction to make the decisions; That the decisions were not authorised by the enactment in pursuance of which they were purported to be made; That the making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purported to be made in that: (a) the respondent took irrelevant considerations into account in the exercise of the power; (b) the respondent failed to take relevant considerations into account in the exercise of the power; (c) the respondent exercised the power for a purpose other than a purpose for which the power was conferred; (d) the respondent exercised the power in bad faith; (e) (£) 5. the respondent exercised the power in accordance with a rule or policy without regard to the merits of the particular case; the respondent's exercise of the power was so unreasonable that no reasonable person could have so exercised the power. 5. That the decisions involved errors of law. PARTICULARS OF BAD FAITH: That the decisions made by the respondent to lease the property to Point McLeay Community Council Inc. were: (1) made in breach of the rules of natural justice: (2) ultra vires; (3) not authorised by the enactment namely the Aboriginal Development Commission Act (Commonwealth) 1980; (4) an improper exercise of the power; (5) made with an error of law. THE APPLICANT CLAIMS (1) An order quashing the decisions. (2) An order directing the respondent Aboriginal Development (3) (4) (5) (6) (7) Commission to make and the respondent Point McLeay Community Council Incorporated to accept surrender of the lease granted in respect of Bartlett's Farm and to register such surrender at the Lands Titles Office. An order directing the respondent Aboriginal Development Commission to transfer Bartlett's Farm to the applicant pursuant to the grant of interest. In the alternative an order directing the respondent Aboriginal Development Commission to transfer to the applicant an estate in fee simple in Bartlett's farm upon such terms and conditions as the Court thinks fit. ' In the alternative an order directing the respondent Aboriginal Development Commission to permit the applicant to lease or otherwise occupy Bartlett's Farm upon such terms and conditions as the Court thinks fit. In the alternative an order referring the question of occupancy of Bartlett's Farm to the respondent Aboriginal Development Commission for further consideration subject to such directions as the Court thinks fit. Such further or other order as the Court thinks fit. IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) NO. G 50 of 1981 GENERAL DIVISION ) BETWEEN: RALKON AGRICULTURAL COMPANY PTY. LTD. Applicant lg ABORIGINAL DEVELOPMENT COMMISSION Respondent CORAM: ' JENKINSON J. PLACE: MELBOURNE DATE: 11 AUGUST, 1983 REASONS FOR JUDGMENT Applicant's motions for joinder of a respondent party and for amendment of the application for an order of review made under the Administrative Decisions (Judicial Review) Act 1977. By an application filed 16 November 1981 the applicant claimed a review of "the decision of the respondent Aboriginal Development Commission that a lease of certain property sltuated at or near Point McLeay in the State of South Australia known as 'Bartlett's Farm' and being the whole of the land contained" in certain specified Certificates of Title and Land Grant Register Books "be granted to the respondent Point McLeay Community Council Incorporated and that the applicant wove excluded from the 2. property." Points of claim, as amended and filed on 11 March 1983, pursuant to direction given by the Court, allege that 2 decision by the respondent to offer such a lease to Point McLeay Community Council Incorporated (hereinafter called "the Council") was made on or about 23 March 1981 and that, after the respondent's offer to grant the lease had been rejected, a further decision was made by the respondent in or about June or July 1981 "to renew the offer of a lease" of the land to the Council. Each of those decisions was alleged in the points of claim to be "a decision to which the Administrative Decisions (Judicial Review) Act applies" and in a statement in those points of claim of the orders claimed an order quashing each decision is specified. It is further alleged in the points of claim, in paragraph 24 thereof: "On or about the 17th day of July 1981 the respondent executed a Memorandum of Lease with P.M.C.C. for a term of 99 years in respect of Bartletts Farm." It could be inferred from the whole of the document that the act alleged in paragraph 24 was alleged to have been done in pursuance of the second of the two decisions alleged. - Motion, of which notice was filed on 17 March 1983, for joinder of the Council as a respondent to the application was heard by me on 28 March 1983. Notice of the motion had been served on the Council and Mr. Hayes was heard on behalf of the Council. The application zncluded no claim for any order, such as ord 3. s.16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 might authorise, designed to place the respondent Commission in a position to give the applicant an interest 1n the land known as Bartlett's Farm which would entitle the applicant to immediate possession of that land. Mr. Hayes opposed the motion and declared that the Council had no present intention of applying, pursuant to 8-15 of the Act, to be made a party to the application. The power of direction conferred by s.16(1)(d) being limited in its application to ""parties", the Council. was unwilling, Mr. Hayes said, to subject itself to the risk that the power might be exercised on it as a party. Mr. Hayes also submitted, as did Mr. Debelle Q.C., who appeared with Mr. Ericson for the respondent, that no exercise of the power conferred by s.16(1)(d) could displace what was submitted to be the indefeasibility of the Council's registered leasehold interest in the land. The latter submission is not in my opinion so clearly correct that the motion should be dismissed on the ground that the Court will be unable to bring to an end the Council's posséssion of the land or its proprietary interest in the land. _ = indicated on 28 March 1983 that, although I was disposed to accede to the motion (and gave reasons, extempore, for that disposition), I would not do so while there was such a gross Ltncongruence between the terms of the application, which claimed review of one decision, and the terms of the points of ciain, 4. which claimed the quashing of each of two decisions. The hearing of the motion was adjourned to a date to be fixed. On 26 July 1983 the hearing of the motion was resumed before me and I heard also a motion, of which notice had been filed on 11 April 1983, that the applicant have leave to amend the application. The amendments for which leave was sought were, first, to specify, as 'that with respect to which application for an order of review was made, each of the two decisions specified in the points of claim and, second, to substitute for the statement of the applicant's claims the following: "(1) An order quashing the decisions. (2) An order directing the respondent and Point McLeay Community Council Inc. to surrender the lease granted in respect of Bartlett's Farm and to register such surrender at the Lands Titles Office. (3) An order directing the respondent to transfer Bartlett's Farm to the applicant pursuant to the grant of interest. of "(4) In the alternative an order directing the respondent to transfer to the applicant an estate in fee simple in Bartlett's farm upon such terms and conditions as the Court thinks fit. (5) In the alternative an order directing the respondent to vermit the applicant to lease or otherwise occupy Bartlett's Farm upon such terms and conditions as the Court thinks fic." Mr. Debelle and Mr. Hayes opposed this motion for leave to amend the application. They Dointed out that by acceding to 5. the motion the Court would be absolving the applicant from the necessity, under which it would otherwise lie, of gaining an extension of the time within which to lodge an application for an order of review in relation to whichever of the two decisions was not comprehended by the application filed on 16 November 1981. The circumstances were such, in their submission, that no such an extension ought to be allowed, if sought, and that no amendment having the effect of an extension ought to be allowed. It ist¢true that the applicant has failed over a long period to frame' correctly and in accordance with the requirements of the Administrative Decisions (Judicial Review) Act 1977 the claims for review it desires to make. But no prejudice which cannot be compensated in costs will be caused to any other person by acceding?-to the motion. It was submitted that s.1ll gives effect to a policy, of great importance in relation to the review of administrative decisions, that after the implementation of such a decision thé passage of time should weigh very greatly against interference with the decision by the reviewing authority. That may be so, but evaluation of the weight to be accorded to the passage of- time in a particular case cannot be so nicely made on the hearing of an interlocutory motion as it can be made after all the relevant circumstances have been disclosed at the hearing of the review. The power conferred by paragraph (d) of s.16(1) 1s, like all the other powers conferred by that sub-section, discretionary. And I do not consider that the making of the orders sought will work any prejudice to the respondent or to the Council in relation to the exercise of those powers. To add the Council as a respondent to the application is not to give rise to any consideration in favour of exercising any of the powers adversely to the Council's interest : it is only to make available a power for exercise, if that should be thought necessary to do justice between persons who were parties to the transactions under consideration. My Tt is desirable that I record that Mr. Mansfield, who appeared for the applicant, disclaimed on the applicant's behalf any intention to contend that the circumstances alleged in paragraphs 5 - 10 (inclusive) of the amended points of claim of themselves required or justified any of the orders claimed in sub-paragraphs 4, 5 and 6 of paragraph 27 thereof. Mr. Mansfield would seek to justify any order of that kind, by reference to all the circumstances under which each of the impugned decisions was made, as the only order which could proceed from the sound exercise of the respondent's discretionary power to make a decision. . 3s I propose to accede to both motions for the foregoing reasons and for the reasons given on 28 March 1983. Ss \ RY y et es ° cage