Judicial Review s.13 - whether - application for review inherent power to order review - application to be particularised Administrative - decision exempt under statement - gqrounds of Decisions (Judicial Review) Act 1977 ss.5, 13, 13A,16 Banking Act 1959 s.70 Banking (Foreign Exchange) Requiations Crimes Act 1914 Federal Court Rules 0.4 r.6, 0,54 r.l TAN McKENZIE MURCHISON v. PAUL JOHN KEATING NO. WA G26 of 1984 TOOHEY J. PERTH 10 MAY 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G26 of 1984 www BETWEEN: IAN McKENZIE MURCHISON Applicant and PAUL JOHN KEATING Respondent oO R D E R JUDGE MAKING ORDER : Toohey J. DATE OF ORDER : 10 May 1984 WHERE MADE Perth THE COURT ORDERS THAT: 1. The applicant do within seven days of the date of this order deliver to the respondent written particulars of the grounds of his application as set out in the respondent's request dated 18 April 1984. Ww ' The applicant do within seven days of the date of this order file and serve on the respondent anv affidavit in support of his application for interim relief. The respondent do within seven days of service on his solicitors of the particulars referred to in para. 1 hereof and the affidavit referred to in para. 2 hereof file and serve any affidavit in reply upon which he will seek to rely in relation to the application for interim relief. Otherwise the hearing of the application for directions and the application for interim relief be adjourned to a date to be fixed. There be liberty to the parties to apply qenerally on 48 hours notice. The costs of this directions hearing be costs in the cause. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G26 of 1984 wee we BETWEEN: IAN McKENZIE MURCHISON Applicant and PAUL JOHN KEATING Respondent CORAM: TOOHEY J. 10 MAY 1984 REASONS FOR JUDGMENT In this application under the provisions of the Administrative Decisions (Judicial Review) Act 1977, the applicant seeks a review of four decisions made by the respondent. At this stage the matter is before the Court for directions only but the submissions of counsel have raised important questions concerning the operation of the Judicial Review Act. The respondent is the Treasurer of the Commonwealth of Australia. By reason of sub-s.70(1) of the Banking Act 1959, his written consent 1s required to proceedings for an offence against that Act or the regulations made thereunder. Sub-section 70(2) permits an offence arising under requiations made under s.39 (concerned with foreiqn exchange and foreign investment) or under Part IV (concerned with gold) to be prosecuted summarily with the written consent of a person authorised in writing by the Treasurer. The decisions sought to be reviewed in this application are decisions made by the respondent consenting to the institution of proceedings against the applicant alleging offences against the Banking (Foreign Exchange) Requiations and the Crimes Act 1914 and decisions made by the respondent or a person authorised by him that those proceedings be on indictment rather than by summary prosecution, In view of the language of sub-s.70(2) of the Banking Act, I do not understand how a person authorized by the Treasurer may decide that proceedings be on indictment. The applicant claims to be a person aggrieved by those decisions in that as a consequence of them he has been improperly and unnecessarily charged with offences and 1s therefore obliged to undergo the expense and ordeal of committal proceedings and trial without sufficient cause; alternatively that he has been subjected to the more serious procedure of trial on indictment rather than summary proceedings, without sufficient cause; and that the institution of the proceedings was for a collateral purpose, involving an abuse of the process of the court in which they were commenced. The applicant relies upon five of the grounds set out in tne paragraphs to suo-s.5(1) of the Judicial Review Act. Without elaboration or particularization, the applicant alleges a breach of the rules of natural justice (para. (a)), failure to observe procedures required by law (para. (b)), improper exercise of the power conferred by the enactment under which the decision was made (para. (d)), error of law (para. (f)) and absence of evidence or other material to justify the decision (para. (h)). Without making any formal concession, the respondent does not dispute that the decisions the subject of the application are decisions to which the Judicial Review Act applies. On the other hand, the applicant concedes that the decisions are not decisions to which s.13 applies, being exempted by reason of sub-s.13(4) read with category (f) in Schedule 2 to the Act. Section 13 provides that where a person makes a decision to which the section applies, any person entitled to apply under s.5 1n relation to the decision "may, by notice in writing given to the person who made the decision, request him to furnisha statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". Nevertheless the applicant seeks a direction that the respondent furnish a statement in writing containing those matters « - . . - -- + eee ee M to which 5.13 refers. In so doing, the applicant arques that the Court has inherent power to make such an order and that not to do so would thwart the operation of the Act. The respondent contends that there is no such inherent power and that to order a statement of reasons in relation to a decision to which s.13 does not apply would be to violate the legislative policy manifested by the section. Bach party seeks directions for the future conduct of the application. In most respects the directions sought are different and I shall refer to those differences later in these reasons. But to a large extent the course which the application should follow and the directions appropriate to achieve that course depend on the answer to the question whether the Court can and should direct that a statement of reasons be furnished. It is to that matter I now turn. So far as £ am aware. there has been no decision of the Federal Court expressly on the point at issue. In Lloyd v. Costigan (unreported decision delivered 25 March 1983) I discussed the situation in which an applicant had, by written notice pursuant to sub-s.13(1), Yrequested a statement of reasons and there had been no reply to that request. Counsel for the parties had drawn attention to what was said to be an hiatus in the Act where such a situation occurred. Although I discussed the possible hiatus in my reasons for judgment, it was unnecessary toa reach any conclusion on the point. However, when the matter went on appeal (Lloyd v. Costigan, unreported decision delivered 9 May 1983), the Full Court commented: "A person aggrieved by a decision ... has the rights given by the Act, s.5. He May request reasons under s.13. We are satisfied that, 1f the request is refused or not complied with, the Court has power to order reasons to be given, certainly once there are proceedings commenced to review a decision. Sucha construction plainly accords with the intent of the legislation. A person aggrieved may apply for an order of review on any of the grounds specified in the Act. If he does so, the onus of proving his case rests upon the applicant. He may have his statement under s.13, but the procedures of discovery and interrogatories will often be inappropriate. Generally, at least, the information to which a person is entitled under that Act 1s intended to be obtained in the manner which the Act prescribes". Of course Lloyd v. Costigan was concerned with a decision to which s.13 did apply. The present application is concerned with a situation to which s.13 does not apply. The respondent argued that the legislative intention is plain. Section 5 empowers a person who 1s aggrieved by a decision to which the Act applies to seek a review of that decision on any one or more of the grounds therein contained. Section 13 authorises a person, entitled to apply to the Court under s.5, to request a statement of reasons and of the other matters therein set out. But authority to request such a_ statement exists only where a person makes a decision to which s.13 applies. The clear ' inference to be drawn, said counsel, 1s that where a decision has been made to which s.13 does not apply, the decision-maker 1s under no obligation to furnish a statement of reasons. Counsel agreed that, without a statement of reasons, an applicant might find it very difficult to make good one of the grounds in sub-s.5(1) but said that this was a situation the legislature intended such an applicant to face. Counsel referred to a comment by Brennan J. in W.A. Pines Pty. Ltd. v. Bannerman (1980) 30 ALR 559 at p.568 where his Honour referred to the onus, in a somewhat comparable situation, as being "most difficult to discharge", In reply, counsel for the applicant contended that s.13 of the Judicial Review Act is directed at a situation in which application has not yet been made under the Act. In those circumstances, said counsel, the legislature has decreed that, with certain classes of decisions, no request may be sought for a statement of reasons. But, the argument ran, once an application has been made under the Act the Court has an inherent power to give whatever directions are necessary and appropriate to permit it. to carry out the functions entrusted to it. Counsel drew attention to the powers of the Court under s.16, which include orders quashing or setting aside a decision, referring the matter to which the decision relates to the decision-maker for further consideration, declaring the rights of the parties in respect of any matter to which the decision relates and directing the parties to door refrain from doing any act or thing which the Court considers necessary to do justice between the parties. Counsel asked rhetorically how, in a case such as the present one, the Court could properly exercise any of those powers without a statement of the reasons for the decision together with findings on material questions of fact and reference to the evidence or other material on which those findings were based. Counsel for the applicant drew attention to s.13A which relieves a decision-maker of the obligation to include in a statement information supplied in confidence or otherwise falling within sub-s.13A(1). Notwithstanding, sub-s.13A(4) reads: "Nothing in this section affects the power of a Court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the Court". In the applicant's submission, the Court has power to require the respondent to give a statement of reasons. If confidential matters are involved, either at this stage or at some later stage such as discovery, the Court has ample power to control the distribution of that material. I have not found this an easy matter to resolve but I am of the opinion that, on this particular aspect, the respondent's argument should prevail. The scheme of the Act is to exclude from those cases in which there is a right to request a statement of reasons pursuant to s.13 those decisions referred to in sub-s.13(11). It 1s true that s.13 is concerned with the situation of a verson entitled to make an application to the Court but 1t seems to me that 1f an applicant could simply formulate an application by incorporating the language of one or more of the Paragraphs in sub-~-s.5(1) and then invite the Court to direct the decision-maker to furnish a statement in terms of sub-s.13(1), the intention of the legislature would be thwarted. Furthermore, it would inevitably result in fishing expeditions. An applicant would in truth need to do no more than assert the existence of one of the grounds in sub-s.5(1) and proceed to build up a case from that position. In saying this I am not to be taken as holding that none of the interlocutory steps contained in the Federal Court Rules are available to an applicant. That is a matter to which I shall refer later in these reasons. But, in my view, before an applicant may invoke any of those steps, there must be an application asserting with some particularity the grounds upon which an order of review is sought. That. I think, is consistent with what was said by the Full Court (Bowen C.J., Sheppard and Fitzgerald JJ.) in Lamb v. Moss (1983) 49 ALR 533 when dealing with an objection to the competency of proceedings under the Judicial Review Act, an objection which the Court disallowed. At p.564 the Court said: "The present proceedings must now go back to a single judge. Such matters as this should not be permitted merely to proceed to trial. with all possible interlocutory steps being called for, unless and until the real basis of complaint is identified and seen to be at least arguable". Iam of the opinion that a first step by way of directions 1s to order that the applicant furnish the particulars sought by the respondent by notice dated 18 April 1984. That notice calls on the applicant to furnish further and better particulars of the grounds of application in accordance with the terms of the notice. The applicant's response to the request for particulars will put the Court in a position to assess whether the application is one of substance or whether the applicant has Simply resorted to the grounds in sub-s.5(1) without having any arguable matter of complaint but hoping to find one through interlocutory steps. As to the procedure thereafter, 0.54 r.1 of the Federal Court Rules provides that, subject to the order, "the Rules of Court prescribe the manner of making an application under the Administrative Decisions (Judicial Review) Act 1977". Order 54 requires an application under the Judicial Review Act to be in the relevant form in the First Schedule; but it does not prescribe the manner in which issues are to be defined or evidence adduced. Order 4 r.6 obliges any applicant in the Federal Court to file and serve with the application "either an affidavit or a statement of claim, whichever is appropriate". At this stage the applicant has filed neither affidavit nor statement of claim. But the minute of directions filed on his behalf seeks 10. the deiiverv of pleadings. The respondent's minute proposes the filing of affidavits in relation to the claim by the applicant for an interim injunction "requiring the Respondent to revoke or to suspend his consent to the anstitution of the said prosecutions pending the determination of this Application for Order of Review". Otherwise the respondent seeks an adjournment of the directions hearing until particulars have been provided. Presumably the application for interim injunction has some urgency. In the ordinary course applications for interim or interlocutory relief are dealt with on affidavit evidence. That 1s not to say that in some cases deponents mav not be cross-examined on their affidavits and parties may not wish to supplement their cases by oral evidence. But the filing of affidavits 1s the customary way of dealing with such applications and in my view that course should be followed in the present case. I propose to give directions to that end. Until the applicant has particularised his claim, it is premature to determine whether there should be pleadings, whether evidence in the substantive hearing should be oral or by affidavit and whether other interim steps should be taken. It may be that. in some cases where s.13 of the Judicial Review Act does not require the furnishing of a statement, the procedures of discovery and interroqator1res will be appropriate. TL express no view on that matter. But. at the very least, the propasition assumes an il. application that has adequately particularised the grounds relied upon and appears to present an arguable case. In the circumstances I am of the opinion that the directions sought by the respondent are appropriate at this stage of the application though I make some changes to the minute filed on his behalf. The orders I propose are as follows: 1. The applicant do within seven days of the date of this order deliver to the respondent written particulars of the grounds of his application as set out in the respondent''s request dated 18 April 1984. 2. The applicant do within seven days of the date of this order file and serve on the respondent any affidavit in support of his application for interim relief. 3. The respondent do within seven days of service on his solicitors of the particulars referred to in para. 1 hereof and the affidavit referred to 1n para. 2 hereof file and serve any affidavit in reply upon which he will seek to rely in 12. yelation to the aoplication for interim relier. Otherwise the hearing of the application for directions and the application for interim relief be adjourned to a date to be fixed. There be liberty to the parties to apply generally on 48 hours notice. The costs of this directions hearing be costs in the cause. I certify that this and the eleven preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey cureeers Kaworrres — MM 7 Associate Dated: 10 May 1984