38) CATCHWORDS ADMINISTRATIVE LAW - Judicial review - Extension ot time for making of application to review - Application in respect of related decisions already before Court - Motion to amend Application so as to challenge validity of additional decisions and conduct - Distinction between the grant of leave to permit challenge to decisions and conduct related only to the position of the applicant and decisions of general application and affecting other persons - Evidence that general decision has been used as a basis for decisions affecting the particular cases of numerous other applicants. Administrative Decisions (Judicial Review) Act 1977 s.11(3) NSW G.415 or 1984 PENINSULA ANGLICAN BOYS SCHOOL v THE HUNOURABLE SENATOR SUSAN RYAN. MINISTER FOR EDUCATION FOP THE COMMONWEALTH OF AUSTRALIA Wilcox J. Sydney 18 July 1985 IN THE FEDERAL COORT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : CORAM: WILCOX J. DATE: 18 JULY 1985 PLACE: SYDNEY MINUTE OF ORDERS ~~ eer we THE COURT URDERS THAT: No. G.415 of 1984 PENINSULA ANGLICAN Boys SCHOOL a school conducted by the Council for the Promotion of Sydney Anglican Diocesan Schools Applicant THE HONOURABLE SENATOR SUSAN RYAN, MINISTER FOR EDUCATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent Ll. The Application is allowed insofar as paragraphs id) and (2) are concerned. NOTE: Leave granted to the applicant to file an amended application on the form attached to the affidavit of David Graham Charles dated 24 June 1985 with the deletion of paragraph 'c) contained therein. Leave granted to the respondents to tile further affidavits which they may desire to rely upon in the light of this amendment within twenty-one (21) days from today. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDRBRAGL COURT OF ANSTRALTA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: WILCOX J. DATE: 18 JULY 1985 PLACE: SYDNEY BETWEEN : eee No. G.415 ot 1y84 PENINSULA ANGLICAN BOYS SCHOOL a school conducted by the Council for the Promotion of Sydney Anglican Diocesal Schools Applicant THE HONOURABLE SENATOR SUSAN RYAN, MINISTER FOR EDUCATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent EXTEMPORE, REASONS FOR JUDGMENT This is an application to amend an application for review so as to expand the various decisions and conduct complained of. By reason of the time when those events occurred, it 1s necessary tor the applicant to obtain leave of 2. the Court under s.11(3) of the Administrative Decisions (Judicial Review) Act 1977 to make that amendment at this stage. It appears that on 12 June 1984 the Minister for Education refused an application made by the applicant for a capital grant to fund what was described as stage 2 of the development of the Peninsula Anglican Boys School at Warriewood. The applicant sought a review by the Minister of her decision but this was unsuccessful, as notified on 27 August 1984. On 29 November 1984 the original Application was filed un this Court. It was out of time and that circumstance was drawn to the applicant's attention. The matter came before me on 14 Pebruary 1985 when I was unformed by a solicitor appearing on behalf of the respondent Minister that no objection was taken to the extension of time tor filing the application. Accordingly, by consent, 1 ordered that the time for filing an application for review be extended up to and including the date of filing the Application. I made certain directions as to artidavits and they have been complied with and a hearing date has been rixed. ~ - ite - 3. The current application seeks to expand the category of decisions and conduct by adding three additional matters. As the Application stands it calls in question only decisions of the Minister, respectively of 12 June 1984 and 27 August 1984, that 1s, the original decision which she made to refuse the application for a grant and her decision to refuse the appeal made to her to reverse that decision. By para.(c) of the proposed amended Application, the applicants seek review ot the conduct of the Minister in giving to the Commonwealth Schools Commission certain instructions on or about 16 May 1983. It appears that those instructions were in the form of guidelines issued to the Commission in respect of future funding decisions. By paras.(d) and (e) the applicant challenges the conduct of the Commission and/or its Chairman in acting on the said instructions, giving advice to the Minister and the recommendation of the Commissian and/or its Chairman made on 31 May 1984 that the application for capital grant be refused. {ft seems to me that there are two separate questions involved in the current application. The first of these is whether I should accede to the application insofar as it permits a direct attack on the conduct of the Minister in May 1983. The second 1s whether I should accede to the 4. application insofar as 1t relates to the conduct of the Commonwealth Schools Commission in relation to the application of this particular applicant in May 1984, In relation to the first matter I have been informed by senior counsel for the applicant that 1t will be part of his client's case that the decisions made an respect of his client in 1984 are vitiated by adherence to the guidelines given by the Minister in 1983. He says, therefore, that it will be necessary for the Court to consider the legal validity of those guidelines in determining the case even as presently framed. Senior counsel for the respondent disputes that this is a necessary consequence. I express no view about that matter at this stage. If it be correct, as the applicant contends, that the proceedings as presently framed necessarily require the Court to consider the legal validity of the guidelines, then there 1s no necessity to add para.(c) in order for the Court to review the conduct of the Minister in relation to those guidelines. If that assumption 1s not correct and the effect of para.(c) would be to open up the validity of the guidelines generally, then 1t 1s my view that it would be an incorrect exercise of my discretion to permit that course to be taken. The reason that I say this 1s because there 1s evidence filed 5. by the Assistant Commissioner of the School Facilities Branch of the Commonwealth Schools Commission deposing to the extent ef grants which have been made to various schools throughout Australia, inter alia, in the years 1983, 1984 and 1985. It appears from that affidavit that numerous decisions have been taken affecting numerous schools by reference to those guidelines. It would in my view be undesirable to permit at this late stage, some two years later, the amendment of the current Application so as to permit an attack upon the legal validity of those guidelines. In the circumstances those guidelines should not be reviewed unless that is essential in order to determine the proceedings as presently constituted. As I say if this is essential, then leave is not required. If it is not essential then, in my view, leave should not be granted. It will be for the parties to argue at the hearing itself the extent to which the Court 1s obliged to consider the validity of the 1983 guidelines. I refuse the Application insofar as it relates to para.(c) of the draft amended Application. In respect of paras.(d) and (e) I think different considerations prevail. Firstiy those paragraphs are related directly to the applicant's application and do not seek to challenge a general decision which has ramifications for other schools; secondly they relate to the conduct of the second respondent, that is the Schools Commission leading up to the 6. decision which 1s attacked. It may very well be that the conduct would in any event have to be examined at the hearing in order to consider the ground of attack 1n the Application as currently framed. However, 1t 15 desirable that, 1f the Commission's conduct and recommendations are to be attacked as legally unvalid, that the Commission itself be a party. I think it is desirable for there to be an amendment adding the Commission as a second respondent and making explicit what might otherwise be implicit by the addition of paras.(d) and (e). I propose to allow the Application insofar as those two paragraphs are concerned. I grant leave to the applicant to file an amended application on the form attached to the affidavit of David Graham Charles dated 24 June 1985 with the deletion of paragraph (c) contained therein. The applicant must pay the respondent's costs of this application. I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Wilcox. la Associate: ~ —s ¢ Date: a rs ; Counsel for the applicant: Solicitors for the applicant: Counsel for the respondent: Solicitors for the respondent: Date(s) of hearing: Mr B W Rayment Q C with Mr A Jd Sullivan Messrs Allen Allen & Hemslev Mr D E Grieve Q C with Mr C T Stevens Australian Government Solicitor 18 July 1985