-% ¢ Lib i IN THE FEDERAL COURT OF AUSTRALTA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION en eetmtetiemencteme den caemirenn paces .tpeemmeaaeme cn. gonages edaaee tect _oetaeremmmecneeneeenecen teem aa — — - = ee en eo etree er a : hoe a te ' NO'T FOR GENERAL DISTRIBUTION ) y ' No.G224 of 1986 ) ) BETWEEN : CARD-O-MATIC PTY.LIMITED Applicant AND: THE AUSTRALTAN INDUSTRIAL RESEARCH AND DEVELOPMENT INCENTIVES BOARD First Respondent DR. KEVIN FOLEY Second Respondent MR. J.A.CLARK Third Respondent PROFESSOR B.D. ANDERSON Fourth Respondent DR. C.K.COOGAN Fifth Respondent - J. HOWARTH Sixth. Respondent . MR. W. KRICKER Seventh Respondent MR. P. L. MacGREGOR Eighth Respondent DR. P. 0. MILLER Ninth Respondent MR. E. W. B. EDDY Thirteenth Respondent COMMONWEALTH OF AUSTRALIA Fourteenth Respondent MINUTE OF ORDER JUDGE: Fox d. DATE OF ORDER: 12 December 1986 WHERE MADE: . Sydney. THE COURT ORDERS THAT: Tr. The application be dismissed. 2. The applicant to pay respondents' costs on the issue of jurisdiction otherwise no order as to costs. 3. The existing injunctions be dissolved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. EI LAT, A em A ne ee ree IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ' ) ) ) No.G224 of 1986 ) ) BETWEEN : CARD-O-MATIC PTY, LIMITED Applicant AND: THE ATSTRALTAN INDUSTRIAL RESEARCH AND DEVELOPMENT INCENTIVES BOARD First Respondent DR. KEVIN FOLEY Second Respondent MR. OT. A. CLARK Third Respondent PROFESSOR B.D. ANDERSON Fourth Respondent DR. C.K. COOGAN Fifth Respondent DR. J. HOWARTH Sixth Resvondent MR. W. KRICKER Seventh Respondent MR. BP. CL. MacGREGOR Eighth Respondent DR. P. O. MILLER Ninth Respondent SIR GUSTAV NOSSAL C.B.E, Tenth Respondent DR. A. A. PUCCT Eleventh Respondent MR. P. 7. REDLICH Twelfth Resnondent dee oo tab tere sant rd tema tcnter 2. SIR GUSTAV NOSSAL C.B.E. Tenth Respondent DR. A. A. PUCCI Eleventh Respondent MR. P. J. REDLICH Twelfth Respondent DR. E. W. B. EDDY Thirteenth Respondent COMMONWEALTH OF AUSTRALTA Fourteenth Respondent CORAM: FOX J. DATE: 1Z DECEMBER 1986 REASONS FOR JUDGMENT (EX TEMPORE) FOX J. The applicant seeks relief under the Administrative Decisions (Judictal Review) Act 1977. The application having come on yesterday for hearing, the respondents, who appear by the same senior and funior counsel have submitted that the Court does not have jurisdiction. The objection micht have been made at an earlier stage. be am obfection to competency, but this was not done. Tnsteak, counsel for the applicant was informed verballv of the intended submission on the morning of the hearinc. A notice of objection ta competency was filed this morning. In the eircumstances., this has not resulted in anv unfair survrise. The case was to be heard on affidavit evidence. and affidavits have es ow ope been filed on both sides. as for a hearing on the merits. For the purposes of the immediate application they have been read in full, although on a hearing objections would be taken. I do not intend any discourtesy to the arquments of counsel, but, as I have a clear view on the matter, I will deliver judgment forthwith. The matter arises in connection with the operation of the Industrial Research and Development Incentives Act 1976 ("the Act"}. Under s.8 of the Act there is established a Board. It is not incorporated by the Act, but the respondents, other than the Board, which is proceeded against by that name, and the Commonwealth, are taken to be the Chairman and members of the Board. Division 2 of Part III of the Act at all material times made provision for ""profect grants", the term _"profect grant" being defined in s.4 to mean "a grant of financial assistance under arr agreement entered into under Division 2 of Part III of the Act". . There are four project grants in question, two before amendments were made to the Act in 1981. and two after. It has mot. been suggested that there is any material difference between the amended and unamended leqislation. and in my view there is none. For convenience [ shall refer to the amended legislation. indicating what parts were inserted bv the amendments. A kev section is s.30, sub-section (1) of which 15 as follows: ee ed "30.(1) Where - (a) an eligible company is carrying out. or proposes to carry out, a project for industrial research and development (other than a project referred to in paragraph (b)); or (b) a company (whether or not an eligible company) has made an arrangement for the carrying out of a proifect for industrial research and development by 2 or more companies (which include an eligible company or elicible companies, but need not include the first-mentioned company) and, under the arranaement, mo company other than the first-mentioned company is to apply to the Board for a grant under this Division in respect of the project. and the company applies to the Board for a grant under this Division in respect of the project, the Board mav. subject to this Act. to any requiations referred to in paragraph 42(aa) and to any relevant directions of the Minister under section Io, enter into an agreement, on behalf of the Commonwealth. with the Company for and in relation to the makina of a grant of financial assistance under this Division to the company in respect of expenditure in respect of the project incurred or to be incurred - (c} im the case of an application by a company referred to in paragraph a) - by the company: or (dk) im the case of an application by a company in accordance with an arrangement referred to in paragraph (b) — by such of the companies by which, under the arrangement, the project is being carried out or Is proposed to be carried out as is an eligible company or are eliagible companies." Guides to ar understanding of the operation of the Act. so far asa material ta the present question. are to be found in s.32A (introduced. however. only in 1981). and ss.33 and 34 (the last two sub-sections of which were inserted in 1981). Section 35 has been regarded as a key section. It was amended considerably in 1981. but its qeneral sense and methed of operation were not affected. so far as material for present Soliaaieeneetetemenmienemiane dentate niicienaetanteel anenendnctesmenemeneieeeneinaeinenmenemamenecen nanan eenenaterenee ee — —- men eee purposes. I set out the amended section: "35(1) Subject to sub-section (1B), the Board may in its discretion. authorize the payment to a company of an advance in respect of a commencement grant that may become payable to the companr. (1A) Subtect to sub-section (1B) and to any direction of the Minister under section 19, the Board may authorize the payment te a company of an advance in respect of a project grant that may become payable to the company. (IB) The Board shall not, under sub-section (1) or (1A), authorize the payment to a company of an advance in respect of a grant unless the company gives adequate security for the repayment to the Commonwealth by the company of any amount repayable under sub-section (2) in relation to the advance. (2) Where an advance has been made to a company in pursuance of sub-section (1) or sub-section (1A) in respect of a grant. the company is Iiable, if the grant does not become payable or the amount of the grant is less than the advance. to repay to the Commonwédlth. upon demand being made by the Minister for Finance, the amount of the advance or so much of the advance as exceed the amount of the grant, as the case may be. (3) Without limiting the rights of the Commonwealth under a security given in pursuance of sub-section (1B), an amount repavable under sub-section (2) is recoverable by the Commonwealth from the company in a court of competent jurisdiction as a debt due to the Commonwealth." Pursuant to 3.30(1) the Board and the applicant sntered inta four separate agreements. relative to each of the four grants. Advances were made against the grants (s.35(1)). In accordance with s.35(1B) security was given for each advance in the form of bank quarantees referred to as "performance quarantees". The dispute relates to the question whether these advances exceed the amounts "payable", so that the applicant has become liable to repay the Commonwealth the amount of the excess. - an amount of $390,000. After investiaations on behalf of the Board, demand for repayment was made by letter dated 23 December 1985. Liability was disputed, and on 20 May 1986 the Board resolved to take action on bank guarantees, which was done by letter dated 27 May 1986. The $250,000 paid thereunder is now frozen in a special bank account pursuant to an agreement between the parties. The question is whether there were decistons of the Board which can be the subject of review and of relief under the Act. The application, as amended. and re-amended. relies upon the following decisions: "lL. That parts of the amounts of certain project qrants or advarices in respect of such grants numbered 607, 928, 1158 and 1305 were not payable to the applicant. Z. That in relation to advances in respect of such qrants the amount of entitlement to such grants was less than the advances. 3. That the applicant had been overpaid money. 4. To demand and/or require repayment of the sum of $390,000.00 by the applicant to the respondents. 5. To reject certain pending project grant applications. &. Not. to consider further project crant applications until after finalisation of present agreements. Te To: institute actiom to recover money from the applicant. & To demand payment from Midland International Australia Cimited under bank quarantees furnished by the applicant to the respondent." The matters numbered 5 and 5 were added without ebjiection this morning and I will come to consider those separately at a later point. The qrounds relied upon are most of those set out in s.5 of the Judicial Review Act. The relief gought is expressed in a number of wavs. involving a variety of processes but in essence what is claimed is relief against payment by the applicant to the Board, and payment to it of the moneys in the special bank account. The principal purpose of the application can I think be fairly ascertained from the second order sought, which I set out: "An order referring the matter to the respondents for further consideration subject to directions that an independent accountant he appointed by the parties to adjudicate the differences of the parties or alternatively subject to directions that a decision be made only on the basis of audited accountings in relation to grants numbered 1158 and 1305." There ts in short quite obviously a desire for relief which will settle the state of the accounts between the Board and the applicant by am examination of the relevant factors. One can observe in passing. that it tis not likely that the Court would without the agreement of the parties hand over the resolution of the dispute to an accountant or an auditor. The applicant savs. in short, that it does not owe the Board money, and contests the Board's claim that it does. As the sections anticipate and provide for, there are agreements, in writing. respecting the grants. Certain work is to be done. and grants are to be made therefor. The matter of advances is not dealt with therein. The reference in s.35 to the ree rer ee nr Be SR ET ere ee rr we grant "becoming payable" is a reference to the terms of the agreement. Whatever express or implied aareements exist for repayment of an advance, a statutory obligation is imposed, or super~added. It seems to me that the situation is a commercial one, where there are commercial transactions and calculations. The dispute is simply one as to the payment of money. The fact that the Board is established by statute, that there is a scheme thereunder for project grants, and that there is a statutory obligation to repay advances in certain circumstances does not mean that the performance of the Board in presently relevant respects involves "decisions", or "decisions of an administrative character". The duty to repay. it is to be noted. is a statutory obligation operating on the circumstances and is a duty to pay to the Commonwealth, upon demand. No decision of the Board intervenes. The language of 3.35(2) is that where an advance has been made "the company is liable if the grant does not become payable or the amount of the grant is less than the advance to repay ta the Commonwealth upon demand being made by the Minister for Finance the amount of the advance or so much of the advance as exceeds the amount of the qrant as the case may be". It would seem, therefore. that while the making of the advance and the settling of the terms of the agreement are matters for the Board, the ultimate financial accounting is a matter for obiective determination, with the Board having at the most some assisting function. Tt would doubtless be convenient for the applicant to have some determination of this matter by fthis Court, having in mind in particular the relative promptness with which this might be expected to be done, and it is at this stage doubtless desirable in everyone's interests that if the matter were properly within the jurisdiction of the Court under the Judicial Review Act. for the question to be dealt with here. However, the Judicial Review Act has an entirely different purpose, which has been discussed in many cases, and it cannot properly be used for the litigation of common law claims for payment of money. It is said, however, that the claim with which I have been dealing can be dealt with under the pendent jurisdiction of the Court because the Court has jurisdiction in relation to the two matters which I have said were added toa the amended application today. There is. I think a problem in handling the case in that way, by the last minute addition of some claims which are said to come within the court's jurisdiction so that the matter really "sought to be litigated can be added, and if it were a matter of discretion at thia stage I would say that this should not be done. The particular matter relied upon as a basis for the jurisdiction appears in the final paragraph of the Board's letter Tate cree ommnene_car ceecnmementn emeceetat ncemme a ee -- ase 10. of 23 December 1985 and is in this lanquace: "I should also advise that the board recently considered vour latest project grant applications and in view of the foregoing decided to reject them. Further applications from your company may be considered after the satisfactory finalization of the existing grant agreements." a It is said that this is a wrongful decision because it is "To reject...pending project grant applications" and involves a refusal "to consider further project grant applications until after finalization of present agreements". There fs nothing before me at all as to what were the latest "project grant applications" and it is difficult indeed to find that there is a decision of an administrative character wunder an enactment without seeing what the matter is that is being dealt with. The matters -thus sought to be raised are unrelated to the case as it has been fought, and are quite unrelated to the matter soucht to be introduced by wav of the Court's pendent jurisdiction. fT uphold the obfectiorn to competency and order that the application be dismissed. Having in mind the lateness of the objection, I make no order as to costs except that I order the applicant to pay the respondent's costs on the issue of jurisdiction. ll. I certify that this and the ten preceding pages are a true copy of the Reasons for Judement herein of his Honour Mr. Justice Fox. Associate Dated: 12 December 1986 Counsel for the applicant: Me M J Neil QC with Mr J B Maston Solicitors for the applicant: Messrs Horwitz & Bilinsky Counsel for the respondents: My DG Hill QC with Mr R B Wilson Solicitor for the respondents: Australian Government Solicitor Date of hearing: Sydney: 11,12 December Date judgment delivered: Sydney: 12 December 1986 CR EA ER RE