Q38 CATCHWORDS Administrative Law - tenders - whether failure to consider applicant's tender was conduct to which the Administrative Decisions (Judicial Review) Act applied - whether decision to contract with another tenderer was decision "under an enactment". Administrative Decisions (Judicial Review) Act 1977 ss.5,6. Health Services Ordinance 1985 (A.C.T.) s.&. AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY and LIMRO PTY. LIMITED v BERKELEY CLEANING GROUP PTY. LIMITED No. G75 of 1985 No. G76 of 193985 Fox. McGregor and Spender dd. 12 June 1985 Sydney iN THE FEOPPAL COURT OF AUSTRALTA No.G75 of 1985 No.G76 of 1985 NEW SOUTH WALES DISTRICT REGISTRY wee GENERAL DIVISEAN ON APPEAL from a single judge of the Federal Court of Australia AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY Appellant AND: LIMRO PY. LIMITED Secend Appellant AND: BERKELEY CLEANING CROUP Respondent MINUTE OF ORDER JUDGE: FOX, McGREGOR and SPENDER Jd. DATE UF ORDER: 12 JUNE 1985 WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. The appeals be dismissed. ies] The appellants pay the respondent's costs of the appeals. Note: Settlement and entry of orders as dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY Ip io 2S on av oo et Fh co co wh aga "I~ el 1: lo ! ' ' GENERAL DIVISTON ) ON APPEAL from a single jludde of the Federal Court of Australia BETWEEN : AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY Appellant AND: LIMRO PTY. LIMITED Second arnpellant AND: BERKELEY CLEANING GROUP Pry. LIMPTED Respondent CORAM: FOX, McGREGOR & SPENDER JJ. DATE: 12 JUNE 1985 REASONS FOR JUDGMENT FOX, McGREGOR & SPENDER Jd. This 1s an appeal, by leave. from a decision of a iudge of the Court (Morling J.; in which he reirected challenges to the competency cf an application under the Administrative Decisions 'Judicial Peview: Act 1577. The application had been made by Berkeley Cleaning Group Pty.Limited ("Berkelev"} and the present appellants were respondents thereto. The appellants instituted separate appeals but it was ordered that they be heard tagether,. and that only one appeal book be prepared. Berkeley was an unsuccessful tenderer for cleaning services at the Woden Valley Hospital. Canberra (and associated nursing home,. the tenders having been called bv the Austraiian mz, Cupital Territory Health Commission. This was a statutory body established by the Health Commission Ordinance 1975. This bodv was replaced by the Australian Capital Territory Health Authority (the Authority) by the Health Services Ordinance 1985. It is the Authority which brings this appeal. The successful tenderer was the co-appellant Limro Pty. Limited (""Limro"}. Herkelev held the contract for cleaning services at the time the tenders were dealt with, and its equipment was on the premises. The notices of appeal did not raise the auestion whether 1t was "a person who 1s aggrieved", and we refused leave to amend so as to include that matter. The relevant part of the leaislation is s.8 of the Orainance, which was at the time, and still is. in the following terms: 'B. The Authoritv has power to do all thinas that are necessary or convenient to be done for or in connexion with the performance of its functions and. in particular, without limiting the generality of the foregoing - ia) to acaguire, hold and dispose of real and personal property; (b: to enter iito contracts; ic) to erect buildings; (da) to occuryv and use land or buildings made available ta the Authority by Australia: to accept gifts, devises and bequests made to the Authority, whether on trust or otherwise, and to act as trustee of monevs or other property vested in the Authority upon trust; > (ft) to let on hire plant and equipment of the Authority; (a) to enter into arrangements with persons or authorities outside the Territory for, or in connexion with. the provision of medicai treatment to a person, whether within or outside the Territorv;: th) where the Authority is not able to use buildings, equipment or facilities of the Authority to the full extent of their capacity. to enter inta arrangements for the use of the buildinas,. equipment or facilities by persons or bodies other than the Authority: and (i) to make the services of staff of the Authority available to persons providing or conductina health services." In the application two "decisions". which were related to the same matter, were challenged. The farst was a decision of the Authority that the tender of the applicant '(respondent before us) was "non-assessable", and the second was the decision to enter into a contract with Limro. This term "non-assessable" is not a technical one. and no precise meaning has been given to it. It apparently related to compliance of the tenderers with requirements as to the form and content of the tenders called for by the Authority. The first "decision" was treated by the Judae as conduct for the pnurpose of making a decision 's.6 of the he Judicial Review Act) and we understand that its treatment as "conduct", as distinct from a "decision" is accepted by all parties. It i3 not suggested that the contract was ultra vires. It was submitted. ain the first place, that the decision to make ait wag not a "decision" to which s.5 rélates. It was said that the decision was a prior mental process, which is to be inferred, and that. if anything, what is reviewable is the contract. In this connection it should be mentioned that at the conclusion of his argument counsel for Berkeley sought to amend his application by inserting therein, as a third decision, the making of the contract itself, — Reference was made to para.3(2){g) of the Judicial Review Act, which provides that the making of a decision includes "doing or refusing to do any other act or thing". The purpose of seeking an amendment to the application was to enable the submission at present under consideration to be met. on the hearing of_ the appeal, ina further way. The amendment was strongly opposed, and it was claimed that material prejudice would be suffered if it was allowed. After hearing argument, the Court disallowed it. without prejudice to the applicant's right to seek to make it. if appropriate, 1f the matter went for a hearing. Our view is that from the making of the contract there as necessarily to be inferred a decision to make it, and that an such a decision comes within s.5 (see Rice Growers Co-operative Mills Ltd. v. Bannerman (1981) 38 A.L.R. 535). Sub-section 3(2) relates to a variety of acts. and para.(q) thereof, speaks generally of "act or thina". The purpose is not to make an additional and different category of happenings subject to 3.5 fand 3.6), but to make it plain that "deciston" relates to and includes the act involved in, or immediately consequent upon the mental activity which is the decision itself. The legislature has chosen "decision" as the central criterion, but the term is not divorced from. but rather embraces the act consequent upon the decision. There was not therefore any need for the amendment which was sought. It was submitted that the decision was not of an administrative character. The reason for this. so it was put, 1s that "administrative" is a very wide term and the Act should be regarded as limited to administrative decisions using "administrative" with the meaning it bears in the expression "administrative law". The word is not. so it was submitted. to be assimilated to the term "executive". This seems to us to be placing an unnecessary and untenable limitation on the meaning of the word. So far as one looks strictly at what is contemplated within the phrase "administrative law" "one ig looking to legal remedies. The purpose of the legislation is not to confine the meaning in this way but rather by different machinery to provide for legal remedies in relation to administrative decisions. Thiaz is the way the Administrative Appeals Tribunal Act 1975 works and nN . the way the Ombudsman Act 1976 works. The intention was to give vrelier in relation to administrative decisions and conduct and the legislature was at some pains in providing wide definitions to this end. The main weight of the araument was that the decision wae not "under an enactment". This can be aa well expressed. in our view, by asking whether the contract was under an enactment. The submission that it was not emphasised the general language of the grant of power "to enter into contracts". Two things were said to flow from this. One is that it was merely a general gqyant of power ta a statutory body, one, perhapa, which might otherwise have been implied. It merely clothes the Authority with a capacity, assimilating it to a company incorporated under companies legislation, and to a natural person. To emphasise the point, it was said that one does not speak of a company contracting under or pursuant to its constating instrument, and did not do so before the recent statutory changes affecting the law of ultra vires in relation to companies. To talk of the normal usage of language in that context is misleading, because the question -was not posed in the area of company law (when the doctrine of ultra vires had application in that field) 'in the way the Judicial Review Act poses it. The analogy is defective in a number of respects. The powers of a statutory authority may be broadly expressed, but they are always restricted by reference to the scope and purpose of the statute. In some cases this may be a very considerable limitation. This involves a process of statutory interpretation, but the powers of a company were to he found by a different rocess of interpretation. As an adjunct to this submission. it was put that the decizions to which the Act relates are those of a governmental nature, meaning thereby, we think. decisions at a high level of government, and of a nature unique to government. There is in our view no basis for thus limiting the legislation. and many decisions of the Court have proceeded otherwise. It was argued that if the Ordinance requlated more closely the power to contract. it might be possible to regard the decision, if ait then satisfied the terms of the power, as made under the Ordinance. This argument seems to us to concede the invalidity of the gubmigsion just discussed. The dudicial Review Act does not draw any distinction, or permit any to he drawn, . between powers broadly expressed, and those expressed in more detail. The statute is a remedial one. obviousiy intended to he of wide scope, and within its limits very comprehensive. and it would be contrary to its purpose to read down "under an enactment" in the wav suggested. In an attempt to apply Australian National University v. Burns (1982) 43 A.L.R. 25 (see also Australian Pilm Commission v. Mabey, Pull Court, 12 April 1985) it is submitted that the co decision was made pursuant to the form of tender provided; that there was a relevant step or proceeding between the power to contract and the contract. This is merely a partial recital of events, and does na more than relate some of the steps in the making of the contract. Burns does not apply simply because gomething happens on the way to the making of the decision, even if it be a shade distinctive. What it looks to is some change in leqal circumstances, which makes it proper to refer the decision to the product of the change, rather than the original source of power. There was naturally an attempt in the course of araqument to determine the dividing line. but in this case it is not necessary to pursue the matter. There was here a major contract. directly affecting the administration of the hospital, which can only be regarded as made under the authority to contract given by ny the Ordinance. Fallowing what we have eaid. we fee no reason Tor disturbing his Honour's conclusion concerning the rejection of NA Berkeley's tender, namely that it was conduct under 3.6 of the Act. In our opinion the appeal should be dismissed, with be ne Re ee costs. dre Seven (>) a a aul 23 Ta 4 - Cy maj foot Tune oo eb ts! Voy ea biee FeX, Me Duserice WAS Gear cnc Mie Basrvee Spencer Habre. Ww fit. wel GGL Le ' ee ird tet we Oo1 t. iv ! 71 my te "IR Jura J48S7 Pr ee