bo\ bat /iqgt. bY / CATCHWORDS Administrative Law - Reasons for Decision - Order for Review - Notice of Objection to Competency of application for review - Whether decision made under an enactment or a decision pursuant to rights at common law to manage and control land - Should question whether applicants are aggrieved be determined on hearing of Notice of Objection to Competency. Administrative Decisions (Judicial Review) Act 1977 (Cth) - ss. 5 3, 13. Air Navigation Act 1920 Air Navigation Regulations Airport Instructions Australian National University v Burns (1982) 43 ALR 25 Chittick v Ackland (1984) 1 FCR 254 RAYMOND HAROLD CLAMBACK & ORS v_ BRUCE BURNS COOMBES G214/1985 Evatt J Sydney 23 December 1986 wee IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G214 of 1985 GENERAL DIVISION a BETWEEN: RAYMOND HAROLD CLAMBACK AMINTA HENNESSY CLAMBACK & HENNESSY PTY LIMITED Applicants AND: BRUCE BURNS COOMBES (Assistant Regional Director (Airports) New South Wales Region Respondent ORAM : Evatt J [= ATE : 23 December 1986 PLAC E: Sydney MINUTES OF ORDER THE COURT DECLARES THAT: tu The respondent's notice of objection to the competency of the applicants' application herein filed under 0.54 r.4 should, in respect of grounds (a), (b) and (c) set out in the amended application, be upheld. The said notice of objection to competency in respect of ground (d) in the applicants' amended application is rejected. Orders accordingly. THE COURT ORDERS THAT: ta The matter be listed for further direction at a time and date to be agreed upon. Liberty to apply on 14 days notice. Each party pay their own costs in respect of the hearing of the said notice of objection to the competency of the applicants' application dated 7 August 1985 as amended on 19 November 1985. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. In THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G214 of 1985 GENERAL DIVISION ) BETWEEN: RAYMOND HAROLD CLAMBACK AMINTA HENNESSY CLAMBACK & HENNESSY PTY LIMITED Applicants AND: BRUCE BURNS COOMBES Assistant Regional Director (Airports) New South Wales Region Respondent CORAM: Evatt J DATE : 23 December 1986 PLACE: Sydney REASONS FOR JUDGMENT The respondent, Bruce Burns Coombes, an officer of the Commonwealth of Australia, is the Assistant Regional Director (Airports) New South Wales Region, attached to the Department of Civil Aviation: and as such has administrative control over the land area known as Bankstown Airport at Sydney. In June 1984 the personal applicants, Raymond Harold Clamback and Aminta Hennessy, entered into a lease with the Commonwealth through the respondent in his capacity as such Deputy Director in respect of a portion of the said airport area known as Hangar ta . 493, Tower Road, Bankstown Airport. Since 1984 the applicants have carried out a number of improvements to the demised premises including the construction of a temporary office and a maintenance hangar and have submitted plans to the Department of Civil Aviation for the construction of two offices to be built on either side of the hangar. The cost of such works is stated to be in excess of $100,000. Throughout this time and up to the present the applicants have conducted the business of a flying school and aircraft maintenance facilities from the demised premises, the applicants owing or having an interest in four aircraft and having available some 13 other aircraft which are rented out on commission. All aircraft are used for charter or pilot training. The said hangar faces east, its eastern extremity being on the eastern boundary of the demised premises. That boundary abuts onto areas of the airport which are or are to be used for the movement and parking of aircraft generally. The western boundary of the demised premises abuts onto or near Tower Road which at that point runs approximately north and south. The area of the airport immediately to the north of the northern boundary of the demised premises was at relevant times an open area but on which a fire station is proposed to be built by the Department of Civil Aviation. It is this area to the north of the demised premises which had for some period of time been used by the applicants at least with the tacit consent of the respondent as a parking space for their aircraft although there was no evidence that that area nad ever been designated a parking area pursuant to the Air Navigation Act or Regulations. It appears that the applicants had spent considerable expense and time building up this area for use as a parking area. Such work invoived the drainage of the area andthe installation of "tie-downs" for securing aircraft. At all relevant times there was fencing or barriers on or near the western boundary of the demised premises cutting off vehicular access from Tower Road to parts of the airport used for the movement of aircraft. This consists of a low fence running north/south on the demised area and beyond, which is sufficient to impede at those points access by motor vehicles to the said parts of the airport. However, pedestrians would not be so impeded, the fence being very low and not continuous. To the north of the said northern area used by the applicant to park their aircraft, had been constructed an aircraft control tower, the eastern edge of which is approximately in line with the continuation of the eastern boundary line of the applicants' demised premises. In mid-1985 the applicants became aware of a decision by the Department of Civil Aviation through its Airport Director that a full and continuous high fence was to be built along the eastern boundary of the demised premises running north/south from the i 4. north-east corner of the said hangar continuing to the north up to the said tower. In addition, fencing was to be constructed from the south-west corner of the hangar diagonally across the demised premises in a south-westerly direction towards the western boundary of those premises. This fencing was said by the respondent to be for 'the purpose of fencing off public access both by persons and vehicles to the area of the airport from Tower Road so as to prevent trespass by members of the public onto the airport itself. In addition, the question of public safety had been considered. But it will be seen that such fencing, if constructed, would have effectively prevented aircraft, including those owned and used by the applicants, from moving to and from the airport proper from and into the said area to the north of the demised premises used by the applicants as the parking area for their aircraft. On 17 June 1985 the present applicant company as plaintiff, sought and obtained an ex parte interlocutory injunction against the Commonwealth of Australia in the Supreme Court of New South Wales in its Equity Division restraining it "from erecting or causing to be erected any fence or obstruction along or in the vicinity of the proposed fenced line shown in red on the plan of the premises situated at and known as Hangar 493, Tower Road, Bankstown Airport, such plan being annexed to the summons filed herein". This order referred to the total length of fencing both on the demised premises and on the area beyond that area to the north up to the said tower. un The equity proceedings came on for hearing later that year before Needham J for the continuation of the interim injunction. At that hearing the defendant, the Commonwealth of Australia, objected to that court's jurisdiction, its submissions being broadly based on the argument that s.9(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) precluded a State Court "from reviewing any other decision given, or any order made, by an officer of the Commonwealth, or any other conduct that has been, is being or is proposed to be, engaged in by an officer of the Commonwealth". The Equity Court, having determined that it had jurisdiction, made certain orders on 13 November 1985 in respect of that part of the proposed fencing which was on or formed the boundary of the demised premises. The proposed orders of the Court as set out in its reasons for judgment read: Bearing in mind the balance of convenience, it is my opinion that the plaintiff is entitled to restrain the defendant in two respects: (1) against erecting the fence between the northern boundary of the plaintiff's leased area and the northern wall of the hangar without providing in such fence a gate suitable for use by pedestrians; (2) against erecting the fence proposed between the south-western corner of the hangar and the southern boundary of the plaintiff's leased land. These injunctions should continued until the hearing or further order. (See Clamback & Hennessy Pty Ltd v Commonwealth of Australia (1985) 3 NSWLR 91 @ 98). It should be noted that since the granting of the said lease to the personal applicants in 1984, pursuant to an understanding between the parties to that lease, a company has been formed, namely Clamback & Hennessy Pty Ltd, the third named applicant herein which is or is to be the assignee of the applicants of the said lease, the two personal applicants being directors of the said company. The question whether there has in fact been a true assignment or a novation of the said agreement is not clear but the respondent in the present proceedings concedes that no point is taken in this regard for the purposes of the determination of the present question raised by the respondent herein, namely, whether the Court has jurisdiction to hear the present matter. Meanwhile subsequent to the granting to the ex parte injunction by the Equity Court on 17 July 1985, the present application before this Court was filed on 7 August 1985. That application sought an order of review under s.5 of the Judicial Review Act in respect of two decisions and the conduct of the respondent said to affect the present applicants. Those decisions and conduct as set out in the application, as filed, are: (a) The suspension and/or revocation by the respondent of all necessary approvals, consents and permission under the provisions of the Air Navigation Act, 1920 and the Air Navigation Regulations for the applicants to leave stationary aircraft standing within = the precincts of Bankstown Airport (hereinafter referred to as "the airport") in the area ("the parking area") shown in green on the plan annexed hereto and marked with the letter "A" ("the plan"). : (b) The decision cf the respondent to arrange for the erection of a fence in the location shown in red on the plan ("the fence"); and (c) The conduct of the respondent in commencing construction of the fence on or about 17th July, 1985. The application then set out particulars alleging the manner in which it is claimed the applicants were aggrieved by the said decisions or conduct. The "parking area" referred to in decision (a) above, refers to the area to the north of the demised premises referred to earlier herein and on which the applicants had customarily left their stationary aircraft standing. "The fence" referred to in decision (b) above, was the totality of the proposed fencing running between the said tower and the north-eastern corner of the said hangar together with the proposed fencing running between the south-western corner of the hangar to the south-western border of the demised premises. After 7 August 1985 the present matter was Listed for directions before the Court on some three or four occasions prior to the decision of Needham J on 13 November 1985. The application as filed had sought interim orders in respect of the erecting of the said fence but no formal application had been made to this Court for such interim orders, no doubt because the applicants had sought and obtained, through the company applicant, interim orders in that regard from the Supreme Court of New South Wales against the Commonwealth. Meanwhile on 19 August 1985 the respondent, pursuant to 0.54 r.4 of the rules of court filed a Notice of Objection to Competency in this Court which notice was amended pursuant to leave of the Court on 21 August 1985. The amended notice reads: The Respondent objects to the jurisdiction of this Court to try this Application for an Order of Review under the Administrative Decisions (Judicial Review) Act 1977 on the ground that: 1. The said Application is not made in respect of any decision within the meaning of the said Act. 2. Further or in the alternative none of the applicants is a person aggrieved by a decision or conduct within the meaning of the said Act, (the respondent not admitting that any decision or conduct referred to in the said application is a decision or conduct within the meaning of the said Act). Following a directions hearing in this Court on 18 October 1985, the matter was stood over to 22 November 1985 for further directions. However, following Needham J's decision on 13 November 1985 it was understood by the applicants that work was to commence on the erecting of the fence between the tower and the northern boundary of the demised premises. Accordingly, the applicants requested that the present matter be restored to the list asa matter of urgency. It is understood that if that section of the fence had in fact been constructed, the gap between the southern end of the fence and the northern edge of the hangar would be such that it would be of insufficient width for the applicants' planes to be able to move from their usual parking area out onto the airport general area and vice versa. The matter was accordingly listed before the Court as presently constituted on 18 November 1985 when it was determined that the Court should first hear argument as to the competency of the application. Thereafter affidavit evidence was read and argument presented in support of and against the competency of the application. It was during such argument that the applicants on 19 November 1985 sought leave to amend their application by seeking a review of an alleged decision of the respondent made on or about 8 August 1985 concerning the designation of an area other than that area to the north of the demised premises for the parking of aircraft, including those of the applicants'. It is noted that this decision was made at or about the time of the filing of the applicants' application herein for orders of review but it is understood that there had been some agreement between the parties in the equity proceedings at an early stage in an attempt to settle those proceedings whereby "the defendant, the Commonwealth, shall designate such area or areas at Bankstown Airport in which the plaintiff (company) is permitted to park any aircraft or make any directions under the Air Navigation Regulations appertaining to such parking, if any, as it thinks fit". The proposed amendment to the application before this Court was then out of time (see s$.11(3) of the Judicial Review Act). 10. Having heard submissions, the Court extended time pursuant to s.11(1)(c) and granted leave to the applicants to amend their application so as to add a reference to a further decision which became ground (d) of the said application. That ground reads: (d) The decision of the respondent to purportedly designate in pursuance of Reg. 315B of the Air Navigation Regulations and in pursuance of the power delegated to the respondent, area marked number 6 for the parking of aircraft within the precincts of the Bankstown Airport contained in Drawing No. $S3345. The evidence discloses that the applicants wrote to the respondent concerning the decision to erect the subject fence. The letter is undated but it was stated to be written shortly before 29 May 1985. Part of that letter reads as follows: Your decision, (ie to erect a fence), therefore, has significant effect on our leasehold and our business operating therefrom. Accordingly, pursuant to Section 13 of the Administrative Decision (Judicial Review) Act, 1977 we require you to furnish us with further particulars in respect of the fencing decision: 1. When was the master plan changed? 2. Who formulated those changes? 3. What notification was given to users in respect of the changes of plan and design? 4. What legal procedures required by law were observed in the formulation of the amendments to the plan? 5. What public consultation and discussion took place regarding the amendments? 6. What were the considerations taken into account in regard to the changes? The applicant's said letter raised many other matters, especially the applicant's rebuttal of apparent arguments which had been put orally at a meeting between the parties at an earlier date. By letter dated 11 July 1985 the respondent wrote a three page foolscap letter to the second named respondent C/- Clamback & Hennessy Pty Ltd. That letter is headed, "Proposed Fencing Between ATC Tower and Clamback & Hennessy Pty Ltd Lease Area". In the middle of the second page of the letter, the letter proceeds: In regard to the specific questions you asked pursuant to Section 13 Administrative Decision (Judicial Review) Act, 1977 the following answer is given: Q. 1. When was the master plan changed? A. The master plan has not been changed. The fencing now proposed is in accordance with the master plan. Q. 2. Who formulated those changes? A. The decision on the location of the proposed fence was made by the writer, BB Coombes, Assistant Regional Director (Airports). Q. 3. What notification was given to users in respect of the changes of plan and design? A. Verbal advice of the intention to erect the fence was provided to Clamback and Hennessy Pty Limited by the Airport Director and formal advice together witha plan of the fence location was provided with my letter dated 29 May 1985. Q. 4. What legal procedures required by law were observed in the formulation of the amendments to the plan? A. The master plan has not been changed. There are no legal procedures required to be observed in determining the location of a fence. 12. Q. 5. What public consultation and discussion took place regarding the amendments? A. The necessity to erect a fence and its location were discussed with representatives of Clamback and Hennessy Pty Limited at various times by the Senior Airport Inspector, the acting Airport Director, the Airport Director and the Senior Airport Engineer. Q. 6. What were the considerations taken into account in regard to the changes? A. (i) The necessity to erect a new fence to replace that existing along Tower Road was occasioned by the erection of the hangar by Clamback and Hennessy Pty Limited which rendered the location of the existing fence inappropriate. (ii) It had always been intended that as hangars were developed, the fence would gradually be replaced by one on the building line. (iii) Airports Instructions, which specify that fencing shall be on the boundary between the building area and the movement area. (iv) Industrial representations from staff concerned with damage to their cars in the Control Tower car park, due to operations of Clamback and Hennessy Pty Limited aircraft on the building site next to the car park. I have arranged on several occasions to defer the erection of this fence, at your request, in order to allow further consultation with you and to permit the fullest consideration to be given to your representations. I do not believe that any further delay is warranted and I have therefore asked the Airport Director to now arrange for the erection of the fence in the location shown on the plan forwarded with my letter dated 29 May 1985. Yours faithfully Any jurisdiction that the Court may have in this matter derives from s.5 of the Judicial Review Act. The introductory words to that section read: 13. 5.(1) A person who is aggrieved by a decision to which this Act applies that is made aftsr the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds. The questions for determination in respect of the respondent's objection to competency are: (a) whether the respondent's decisions and his conduct (or any one or more of them), set out earlier herein, firstly to erect the said fence and secondly to designate the particular area 6 for the parking of the applicants' aircraft made on 8 August 1985 were "decisions of an administrative character made under an enactment" within the meaning of that expression in s.3 of the Judicial Review Act, and if so, (b) were the applicants or any of them aggrieved by such decisions. Turning then to the relevant provisions of the Judicial Review Act. Sub-section 13(1) provides where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a 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. 14. The phrase "decision to which this Act applies" is defined in s.3 as follows: "'decision to which this Act applies' means a decision of an admiistrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1. In the same section "enactment" is defined as follows: (a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self Government) Act 1978; (b) an Ordinance of a Territory other than the Northern Territory; (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or (d) a law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act. and, for the purposes of paragraph (a), (b) or (c), includes a part of an enactment. The right to make a request under s.13(1) is limited to "a person who is entitled to make an application under s.5 in relation to the decision". As stated earlier herein, s. 5 of the Judicial 15. Review Act entitles a person who is aggrieved by the decision to make the application. Sub-paragraph (i) of s.3(4)(a) provides that a reference toa person aggrieved by a decision includes a reference "to a person whose interests are adversely affected by the decision". The applicants firstly argued that the respondent, having supplied answers to the applicants' questions in respect of the decision to erect the said fence set out earlier herein, which questions and answers were said to have been asked and answered under and in accordance with s.13 of the Judicial Review Act, he cannot now be heard to argue that the decision so to erect the fence was not "a decision to which this Act applies" within the meaning of that expression as used in 3.5 of the Judicial Review Act. The Court rejects this submission. The mere fact that persons treat a request for reasons for a particular decision as being one made under s.13 of the Judicial Review Act does not by itself foist jurisdiction onto the Court. The Court alone is the one who determines that question. The applicants have conceded that the only possible "enactment" that they can rely on in the present matter is either the Air Navigation Act 1920 itself; the Regulations made thereunder, namely the Air Navigation Regulations (the ANRs), or a document entitled, Airport Instructions, particularly Volume IIA Design and Development (Standard and Practices) (the Airport Instructions - Exhibit F). 16. Dealing first with the decision in respect of the erecting of the said fence. Clearly that decision was not made directly under the Air Navigation Act but the applicants point to the ANRs, particularly Reg. 82(2) as being the source of the respondent's power to make the said decision. Regulation 82(1) and (2) reads as follows: PART IX - AERODROMES AND FACILITIES AND SERVICES Division 1 - Aerodromes, Air Routes and Airways Establishment of aerodromes and air route and airway facilities 82. (1) The Minister may - (a) establish, provide, maintain and operate aerodromes and air route and airway facilities; (b) alter, abolish, remove or add to any aerodrome, air route or airway facilities so established or provided; and (c) vary the character of any air route or airway facilities so established or provided, or of the signals or assistance given thereby. (2) Aerodromes and air route and airway facilities established or provided in pursuance of this regulation shall be under the control and management of the Secretary who may, subject to these Regulations, determine the conditions of the use thereof. The Secretary's function thereunder may be and have purported to be delegated to the respondent. The applicants also argued that the Airport Instructions make up an "instrument" within the meaning of that expression in 8.3(1)(c) of the Judicial Review Act as such instructions fall within the principles laid down in this regard by a Full Court of this Court in Chittick v Ackland (1984) 1 FCR 254 wherein Lockhart and Morling JJ, after reviewing earlier authorities, stated at p 263: In our opinion for a document to answer the description of an instrument made under an Act or an Ordinance it must first be a document made "under" an Act or an Ordinance. The word "under", in the context of the Judicial Review Act, means "in pursuance of" or "under the authority of": See Evans v Friemann (1981) 35 ALR 428 (per Fox ACJ) at 436 and Burns' case, (per Bowen CJ and Lockhart J) at 31. But as their Honours pointed out in Burns' case at 31 the difficulty lies in applying the word "under" to particular circumstances. Further, for a document to be an instrument for the purposes of 3.3(1) it must be a document under which decisions of an administrative character may be made. We think that some additional quality is required to give a document the status of an instrument for the purpose of 3.3(1) of the Judicial Review Act. Before stating what that additional quality is we must, however, sound a cautionary note. Their Honours then make reference to what was said by Ellicott J in Burns. v Australian National University (1982) 40 ALR 707 at 716/717 with which Bowen CJ and Lockhart J agreed on appeal, indicating that they also agreed with the passage referred to before stating at p 264: As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations. The applicants' submitted first that the Airport Instructions were made in pursuance of or under the Air Navigation Act and had the character and qualities which the Court in Chittick's case 18. laid down were essential in order that a document might be classified as an "instrument" within the meaning of s.3(1)(c) of the Judicial Review Act. On the other hand, the respondent argued that in respect of the decision to erect the said fence, which was initially the only decision that the Court was asked to deal with and which the respondent claimed remained the only question despite the amendment to the application made on 19 November 1985 by adding ground (d), that decision was not a "decision" within the meaning of the Judicial Review Act. The respondent conceded that the ANRs and in particular Reg. 82(2) was an instrument as defined and if the decision to erect the fence had been taken under that regulation then the Court had jurisdiction assuming it could be shown that the applicants were "persons aggrieved". But it was argued that the decision to erect the said fence was not taken under any statutory powers but was merely the exercise by an officer of the Commonwealth of a power inherent in the right of the Commonwealth to manage its own land. In other words the decision to fence was taken by the respondent in exercising the Commonwealth's common law rights of supervision of its own land. So exercising that right does not mean, so it was argued, that the respondent is exercising a power pursuant to statutory regulations simply because the regulations may give additional powers to him to do something with the particular land. This is the type of problem which was discussed 19. by a Full Court of this Court (Bowen CJ, Lockhart and Sheppard IZ) in Australian National University v Burns (1982) 43 ALR 25. In this regard the respondent also relied upon such principles as those referred to by the High Court in The Board of Fire Commissioners (NSW) v_ Ardouin (1961) 109 CLR 105. (See also MacDonald Pty Limited v Hamence (1984) 1 FCR 45; Bailey v Osborne (1984) 4 FCR 141; and Australian Film Commission v Mabey (1985) 59 ALR 25). I am clearly of the view that, on principle, the decision to erect the said fence here was not a decision made pursuant toa power granted to the respondent under either the ANRs or the Air Navigation Act itself but was merely a decision of the respondent acting on behalf of the Commonwealth of Australia to exercise its common law rights to fence its own land. The only other document pointed to by the applicants as being "an instrument" are the Airport Instructions. I am of the view that those instructions do not satisfy all of the three necessary characteristics outlined by the Court in Chittick's case in order that they might be said to be an "instrument" within the meaning of s.3(1)(c) of the Judicial Review Act. First they are not and do not purport to be made directly under the Air Navigation Act 1920. It has been suggested by the applicants that they are in fact made under the ANRs. This in my view is doubtful, but even if this were so they would not, in my view, be such an instrument. Further any instruction set out therein which might be said to be relevant to the erection of the fence des not purport to nor does it confer any specific power to so erect the fence. A reading of those instructions simply sets out how the relevant officer should exercise his ordinary power of management of the airport and the instructions certainly do not create or affect individual rights or obligations. Accordingly I am of the view that the decisions and conduct of the respondent in respect of the erecting of the said fence are not decisions which can be the subject of orders for review under s.5 of the Judicial Review Act. This then leaves for consideration the decision made by the respondent on 8 August 1985 in respect of the parking of aircraft in area 6 which decision is referred to in ground (da) of the application herein as amended on 19 November 1985. This decision is clearly one taken by the respondent under the ANRs and accordingly is "a decision to which this Act applies" within the meaning of that expression as used in the Judicial Review Act. But the respondent argues that none of the applicants is "a person who is aggrieved" within the meaning of that expression in s.5(1) of : the Judicial Review Act as defined in s.3(4)(a)(i) of that Act. In my view this is a question which cannot and should not be determined on such an application as the present one or at 21. this. stage of the proceedings. There are cbviously serious questions in this regard that will need to be tried. Suffice it to say that on the evidence as it stands at present, it is clear in my view that the applicants or some of them, might be adversely affected by the decision of the respondent made on or about 8 August 1985 in respect of the parking of aircraft in the so-called area 6 at Bankstown Airport contained in Drawing No. $53345. Accordingly the respondent's objections to competency in respect of grounds (a), (b) and (c) of the applicants' application as amended are upheld. The respondent's objection to competency in respect of ground (d) is rejected. In the exercise of its discretion, the Court is of the view that the proper order as to costs of the hearing of the said objections to competency should be that each party pay their ow costs. Finally during the hearing it was discovered that there may not have been a valid delegation to the respondent by the Secretary of the Department of Civil Aviation of the power given to the Secretary under Reg 315B of the ANRs. Regulation 315B is the relevant regulation under which the decision set out in ground (d) of the amended application was taken by the respondent. This question has not been addressed herein but may well require attention if and when the matter is considered in detail by the 22. Court on the hearing of the substantive matter. It would, of course, be a defect which could be, and may have already been remedied by this time. The matter is stood over generally to be listed for directions' at the request of the parties. There is liberty to all parties to apply on 14 days notice to the Court. I certify that this and the twaty enc preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt Associate Dated: 123 -/2-8¢ Counsel for the Applicants : Mr A. Martin Solicitors for the Applicants: R.J. Benjamin & Co., Hurstville Counsel for the Respondent : Mr G. Rowling Solicitors for the Respondent: Australian Government Solicitor