CATCHWORDS ADMINISTRATIVE LAW - Provision of postal services - Decision to close post office - Allegation that decision-maker took account of irrelevant circumstances: political complexion of the area and the effect of closure on staff - Allegation of failure to take account of relevant circumstances: alternative provision of agency services currently offered by post office and possibility of establishing post office agency - Authority of decision-maker to make decision having regard to limitations in his delegated authority -— Consistency between decision and policy guidelines of Australian Postal Commission. PRACTICE AND PROCEDURE - Standing of applicant to bring proceedings - Applicant postmaster who would be transferred and removed from accommodation if closure proceeded. Postal Services Act 1975 ss.5, 6, 7, 9, 12, 36, 49, 76. Administrative Decisions (Judicial Review) Act s.5. NSW G.626 of 1987 MALCOLM BARRY STAMMERS v_W_H BROADBRIDGE & ANOR , row ~~ Wilcox J : ~ 2 APR 1937 Sydney IFEDE| 1 April 1987 \ AUSTRALAT OF PAIrICi Pay REGISTRY \e oF " { ben - IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.626 of 1987 ) ) GENERAL DIVISION BETWEEN: MALCOLM BARRY STAMMERS Applicant AND: W_H BROADBRIDGE First Respondent AUSTRALIAN POSTAL COMMISSION Second Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 1 APRIL 1987 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The respondents' objection to competency be dismissed. 2. The decision made by the First respondent on or about 21 November 1986 to close Watsons Bay post office with effect from 30 January 1987 be quashed. 3. The respondents and each of them refrain from taking any action in relation to the implementation of the said decision. 4, The respondents pay the costs of the applicants of the proceeding. 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. NSW G.626 of 1987 ) ) GENERAL DIVISION BETWEEN: MALCOLM BARRY STAMMERS Applicant AND: W_H BROADBRIDGE First Respondent AUSTRALIAN POSTAL COMMISSION - Second Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 1 APRIL 1987 REASONS FOR JUDGMENT Draped along the foreshores of Sydney harbour, in the lee of South Head, is the small settlement of Watsons Bay. Now long since a Sydney suburb, Watsons Bay started life as a watchpost and fishing village, in the earliest days of the European colonization of Australia. More recently, it has become widely known for its fish restaurants and through the early works of Christina Stead, who lived there as a teenager and young woman, The evidence indicates that a post office was opened at Watsons Bay in 1854, when the first public postal service was established by the government of the Colony of New South Wales. At Federation control of the postal service passed from the Colony to the new Commonwealth government; and in 1975 it was vested in the Australian Postal Commission, better known as "Australia Post". During all of that time, Watsons Bay retained a small post office. However, in November 1986, Mr W H Broadbridge, the Deputy State Manager, Metropolitan Services and Chief Manager, Operations, of the Commission, decided to close the post office. His decision has provoked much local agitation and this proceeding. The proceeding is an application for review pursuant to the Administrative Decisions (Judicial Review) Act 1977. It is conceded by counsel for the respondents, who are respectively Mr Broadbridge and the Commission, that Mr Broadbridge's decision, which was purportedly made pursuant to an authority delegated to him by the Commission itself, was a "decision of an administrative character made, proposed to be made, or required to be made ... under an enactment". The applicant puts two broad contentions: that the making of the decision -- if within the delegated power -- was an improper exercise of the power conferred by the relevant enactment, the Postal Services Act 1975; and that the decision made by Mr Broadbridge was not within his delegated power. I shall return in due course to the legislation and to those arguments. But, first, it is desirable to deal with a preliminary matter: the respondents' challenge to the standing of the applicant to bring the proceeding. The standing of the applicant The applicant, Malcolm Barry Stammers, has been the Post Master at Watsons Bay since August 1976. He and his wife, who works as a part time postal officer, are the only employees at the Watsons Bay post office. They live, with their family, in attached accommodation. If Watsons Bay post office is closed, Mr Stammers will be redeployed by the Commission. His wife will be offered part time work elsewhere and accommodation will be made available to the family, for a limited period, at Woollahra. Mr Stammers' motive in bringing this Application seems to be substantially altruistic. He appears to be concerned about what he regards as the threatened denial to Watsons Bay residents of an adequate postal service. But he is also personally affected by the threatened closure. Notwithstanding the promises that have been made, he is likely to be worse off under the new arrangements. There is nothing to indicate that he and his wife will be employed at the same post office, or whether their new accommodation will be handy to their new place or places of employment. Moreover, the Woollahra accommodation is to be made available for only two years; whereas Mr and Mrs Stammers could have expected to continue until retirement at Watsons Bay. Counsel for the respondents submits that, in considering Mr Stammers' standing, no account may be taken of the matters to which I have just referred. A distinction must be made, he says, between the decision to close the post office -- the decision under current challenge -- and any subsequent decisions relating to the transfer and the reaccommodation of staff. But this approach is highly artificial. The necessity to redeploy and reaccommodate Mr and Mrs Stammers is an inevitable and direct result of the decision to close the post office. It has been seen as such by the officers of Australia Post who have dealt with the proposed closure, as their various memoranda -- and Mr Broadbridge's official advice to Mr Stammers -~ all indicate. The question of standing should be approached by reference to the realities of the situation and the direct consequences to the applicant of the decision he seeks to challenge. Section 5 of the Administrative Decisions (Judicial Review) Act permits a "person who is aggrieved" to challenge in this Court a decision to which that Act applies. The content of that phrase was recently discussed by a Full Court in Ogle v Strickland (13 February 1987, not reported). All members of the Court agreed that the phrase "person who is aggrieved" should be construed so as to accord standing no less generously than under the equitable rules developed in connection with applications for injunctive relief. In particular, each member of the Court drew upon the principles applied by the High Court of Australia in Onus v Alcoa of Australia Limited (1982) 149 CLR 27. There is no factual similarity between the present case and Ogle. Here, there is no question of cultural or spiritual concern. In connection with standing the case is not put as public interest litigation at all. But nonetheless Ogle is important, as an indication that, at least, a plaintiff who would be accorded standing in injunction proceedings will be regarded under the Administrative Decisions (Judicial Review) Act as a "person who is aggrieved". There are numerous cases in which the effect of a decision upon the personal and material interests of a plaintiff has been examined for the purpose of deciding whether he or she possessed the necessary standing to seek injunctive or declaratory relief. An example of that type of case, in the High Court, was Robinson v The Western Australian Museum (1977) 138 CLR 283. The Court there held that the plaintiff, who had found the remains of a Dutch vessel wrecked off the Western Australian coast in the 17th century, had standing to challenge the validity of Western Australian legislation which, if valid, would have prevented him from removing or dealing with the wreck. Four members of the Court held that the plaintiff had standing. Barwick CJ at pp.292-293 posed the test whether the plaintiff had "no greater interest than any other member of the public" to contest the validity of the Act. His status as Finder of the wreck and his interest as salvor was said to be enough. Mason J at p.327 stated the test a little more widely. He referred to the necessity for the plaintiff to show "that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour". At p.328 his Honour said: "Here the legislation, if it is valid, deprives the plaintiff of a right of reimbursement which he would otherwise have or be entitled to claim. It also imposes obligations upon him to which he would not otherwise be subject. This is enough to support locus standi in an action for a declaration of invalidity." Jacobs J at p.340 said that the plaintiff's right to claim salvage was enough to support his standing. Murphy J at pp.344-345 referred to the interference by the statute with the plaintiff's right to work the wreck and with his salvage claim, Although the facts of Robinson are well removed From those in the present case, the test there applied is equally appropriate. Having regard to later cases, especially Onus, it is probably better to avoid the word "interest" -- with its property overtone -- and to enquire, with Mason J, whether success in the litigation would confer upon the plaintiff a benefit or advantage not shared by citizens generally. Such a question must be answered affirmatively. For Mr Stammers there are material advantages in the retention of the Watsons Bay post office which are different in kind from the advantages which would be obtained by citizens generally; or even by residents of Watsons Bay. The challenged decision, if it is valid, deprives him of two entitlements: the opportunity to continue in the post and the right to reside indefinitely in his present accommodation. The statutory provisions The Postal Services Act establishes the Australian Postal Commission (s.5). Section 6 confers upon that Commission the following functions: "(a) to operate postal services for the transmission of postal articles within Australia and between Australia and places outside Australia; (b) to operate such other services as the Commission is authorized by this Act to operate; (c) to provide, at the request of the Australian Government, technical assistance outside Australia in relation to the planning and operation of postal services in countries outside Australia and the prescribed external Territories; and (d) to do anything incidental or conducive to the performance of any of the preceding functions." By s.7(I) it is commanded that the "Commission shall perform its functions in such a matter as will best meet the social, industrial and commercial needs of the Australian people for postal services and shall, so far as it is, in its opinion, reasonably practicable to do so, make its postal services available throughout Australia for all people who reasonably require those services." Section 7(2) requires, inter alia, that, in performing its functions in accordance with sub-s(1), the Commission shall have regard to "the need to operate its services as efficiently and economically as practicable". Section 9 allows the Commission to do all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions. A power to provide services for the transmission of money is specifically conferred. Section 12 makes provision for the Commission to carry out agency functions on behalf of any government. Part VI of the Act deals with finance. It includes s.76(1), which requires the Commission, in each financial year and as far as practicable, to pursue a policy directed towards earning revenue sufficient to meet all expenditure and to provide a proportion of capital expenditure calculated in accordance with a specified formula. Subsection (2) of that section requires that the Commission, in the performance of its functions, "operate as efficiently as possible and make available services provided by the Commission ... at rates and charges that are as low as practicable" consistently with its duty under sub-s.(1). The making of the decision In its reports dealing with the two most recent increases in the basic postal rate, the Prices Surveillance Authority has commented that the postal service in New South Wales is substantially more costly than that in other mainland States. The Australian Postal Commission has reacted to these comments by adopting a plan to move its business performance in New South Wales to a break-even trading result, while maintaining satisfactory service levels. On 24 April 1986 the Commission set management the target of improving the direct trading result in New South Wales by $18 million within two years. It fell to Mr Broadbridge, as Deputy State Manager, Metropolitan Services, to ensure that an appropriate contribution to this target was made by Sydney metropolitan post offices. As part of his economy drive Mr Broadbridge called for reports on the two grade 1 post offices in his area; one of which was that at Watsons Bay. The Divisional Manager, Sydney City Division, Mr A K Cumberland, reported on 12 May 1986 upon the volume of business transacted at this post office. The report showed that the number of "work units" effected at Watsons Bay had risen steadily over the past five years, from 166131 in 1979/80 to 219722 in 1984/85. ["Work units" is a concept devised to enable comparisons of volume. Each of the services offered by a post office is given a weighted value and the total number of work units for a particular office is calculated by multiplying the number of each particular type of transaction effected by that office by the weighted value of that transaction.] However, despite the increased volume of business, there was, according to Mr Cumberland, a loss of $15,437 on counter activities for 1984/85. Mr Cumberland recommended closure of the office. [The Fact that there is stated to be a loss on counter activities does not mean that outgoings relating to the office exceed takings at that office. For the purposes of the calculation only a proportion of earnings in respect of 10. particular items -- in some cases, a very small proportion ~- is brought into account as revenue. The balance of the receipt is treated as being expended in providing the service eg delivering the letter for which the stamp was purchased.] Over the following months there were exchanges of memoranda between Mr Broadbridge on the one hand and Mr Cumberland and his assistants on the other. Mr Broadbridge was seeking more detailed information upon several subjects. During this period Mr Broadbridge received information regarding the financial performance of Watsons Bay post office in the financial year 1985-86. Total revenue was $34,842. Total direct labour costs were $40,670. If, as Mr Broadbridge contends, it is proper to add to the direct costs a loading of 72.5% to cover this post office's contribution to general overheads, the total cost was $70,156; a loss of over $35,000. No final decision had been taken by 13 October 1986, Upon that day Mr Broadbridge wrote to Mr Cumberland informing him that an enquiry as to the position had been received from a local newspaper. He instructed Mr Cumberland to visit the local Federal member "so he is aware of the background to the case and reasons for closure consideration before he is inundated with representations". Mr Cumberland did contact the local member, Mr Peter Coleman MP; apparently by telephone. After some explanations were made to him as to the arrangements proposed for future services he, according to Mr Cumberland, "did not seem perturbed". ll. Before Mr Broadbridge made his final decision he visited Watsons Bay. He found the shopping centre contained, besides the post office, a gift/souvenir shop, a take away food shop, a delicatessen/groceries shop, an architect's office, a milk bar/mixed business, a garage, a restaurant, a coffee lounge/video shop, an antique shop, a pizza shop, and one vacant shop. Within 300 metres were an hotel, two restaurants and a take away seafood shop. Mr Broadbridge failed to notice a TAB office and a supermarket in an arcade in the shopping centre. The opinion he formed was described in this way in his affidavit: "It was clear to me that many goods and services were not available to residents on site at Watsons Bay and as a consequence IT formed the view and made the assessment that residents would need to attend other shopping locations (at which there would likely be postal facilities) on some regular basis to satisfy their consumer needs." On or about 21 November 1986 Mr Broadbridge decided to proceed with the closure. On that day he wrote to inform Mr Stammers that the office would be permanently closed on 30 January 1988 and to inform him of the manner in which he would be affected personally. The fact of the decision quickly became known in Watsons Bay. Representations were received from several local residents. A public protest meeting was held. But Mr Broadbridge adhered to his decision. On 29 January 1987 the Application in this proceeding was Filed. Thereupon the respondents agreed to defer the closure until the resolution of the case. 12. Improper exercise of the power: irrelevant circumstances Upon the assumption that the decision of Mr Broadbridge to close Watsons Bay post office was one within his authority as a delegate of the Commission, the applicant contends that it amounted to an improper exercise of the power to close a post office conferred by the Postal Services Act. This is a ground of review assigned by s.5(1)(e) of the Administrative Decisions (Judicial Review) Act. Section 5(2) of that Act provides that a reference to that ground includes a reference, amongst other things, to taking an irrelevant consideration into account in the exercise of the power (s.5(2)(a)) and to failing to take a relevant consideration into account (s.5(2)(b)). Reliance is placed upon each of these paragraphs. The complaint of irrelevant considerations fastens upon two matters mentioned in the memoranda exchanged between Mr Broadbridge and Mr Cumberland. The first matter was the political representation of the district. The penultimate paragraph of Mr Cumberland's first memorandum, of 12 May 1966, was as follows: "Watsons Bay is in the Federal Electorate of Wentworth, William P Coleman [Liberal] 15 Cross Street Double Bay. The State Electorate is Vaucluse and was held by Mrs Rosemary Foote until her recent resignation. A by-election will be held shortly. The area of course is blue ribbon Liberal territory." 13. The identity of the local federal and State members was not itself irrelevant. The Commission's policy guidelines regarding closures require consultation with both the local members before a closure. However, as is common ground, the political affiliation of those members is irrelevant. But the applicant's difficulty is to show that the political persuasion of the electorate was taken into account in making the decision. In his reply to Mr Cumberland Mr Broadbridge made no comment about the quoted paragraph. As I have already indicated, it was not until five months later that he requested Mr Cumberland to contact Mr Coleman, and in that context there was no reference to his party affiliation. The evidence discloses no intermediate reference to the identity of any local member. Not only is there no evidence to suggest that Mr Broadbridge was influenced in any way by the political preference of the local community; he has sworn to the contrary. Mr Broadbridge said in evidence, the accuracy of which was not challenged: "The question of closure of post offices is not based on the party which holds the electorate. Closures are taking place in electorates held by members of all parties". The second matter of complaint is a strange one, particularly coming from the present applicant. It is that Mr Broadbridge gave consideration, in making his decision, to its effect upon Mr Stammers. There is no doubt that he did address his mind to that matter. So, in my opinion, he should have done. Any decision to close an operating post office must necessarily have ramifications for its current staff. 14, Good management practice and proper industrial relations both dictate that, in making such a decision, the effect upon staff should be considered. It is perhaps unlikely that the effect upon staff will determine an ultimate issue of closure or non-closure; but the effect upon staff may be important in relation to the manner and timing of any closure or other reduction of services. Staff management is not merely an incidental function of the Commission: see s.6(d) of the Postal Services Act. It is a subject upon which extensive provision is made by Part V of that Act. In particular s.49 empowers the Commission to "appoint a person as an officer, or transfer or promote an officer, to fill a vacant position in the Service". There is no substance in either allegation of taking into account irrelevant circumstances. Failure to take account of relevant circumstances The essence of the complaint made under this heading is that Mr Broadbridge failed to take into account the desirability of providing an adequate postal service at Watsons Bay. There is no doubt that this was a relevant matter for his consideration. Section 7(1) of its Act requires the Commission to "make its services available throughout Australia for all people who reasonably require those services". That obligation is subject to the important qualification of reasonable practicality, in the opinion of the Commission, but the assessment of practicality necessarily 15. requires the Commission to consider what services ought ideally to be provided and how far it is practicable to go in providing those services. In that connection it is bound by s.7(2)(b)(ii} to have regard to "the need to operate its services as efficiently and economically as practicable". The issue between the parties is whether Mr Broadbridge considered the extent of the service which it was reasonably practicable to provide to the people of Watsons Bay, having regard to the goals of efficiency and economy. [It is common ground that, if he did, his decision is not open to further challenge on this ground; the ultimate judgment of reasonable practicality is for the Commission or its delegate, and not for the Court. It is not suggested that Mr Broadbridge failed to give any consideration to the types of service which would be available after closure to the Watsons Bay community. In fairness to Mr Broadbridge it should be said at once that such a submission would be untenable. Over a period of some months Mr Broadbridge considered the particular services which could be made available, addressing himself to such matters as the provision of additional private letter boxes at Vaucluse post office, the licensing of additional stamp vendors and the sufficiency of the street letter boxes provided in Watsons Bay. The complaint is more specific. It is said that Mr Broadbridge's consideration of the matter was too narrow. The complaint is that he unduly circumscribed the range of 16. services to be considered and that, in looking at postal services, he failed to consider the possibility of their provision by means of an agency. A number of affidavits sworn by residents of Watsons Bay were read in the applicant's case. Each deponent referred to those services, currently offered by the post office, which he or she used. Reference was made, in many cases, to the difficulty which the deponent expected to face if the post office was closed. In his affidavit, Mr Broadbridge dealt with these references. Upon a number of occasions he disposed of the matter by saying that "it is not a statutory function under the Act" for the Commission to provide the particular service; the references being to the provision of banking services as an agent of the Commonwealth Bank of Australia, to the receipt of payments on behalf of various statutory authorities such as the Metropolitan Water Sewerage and Drainage Board, the Maritime Services Board of New South Wales and Telecom and to the sale of Lotto coupons on behalf of the New South Wales Lotteries office. In his affidavit Mr Broadbridge said that agency services are provided by the Commission at post offices "on the basis that they can be conveniently provided in conjunction with the performance of the Commission's statutory functions. The availability of agency services through postal facilities is not a consideration in the Commission's policy in relation to the provision and withdrawal of a postal facility". That was the approach which Mr Broadbridge applied in the present case, although he did ask the Divisional Manager to contact the 17. Commonwealth Bank about the possibility of the bank appointing a private agent at Watsons Bay in substitution for the post office. Counsel for the applicant submit that the agency services offered by the Watsons Bay post office were material to the decision which Mr Broadbridge had to make. It is incorrect, they say, to regard the provision of these services as not being a statutory function of the Commission; s.12 makes specific provision for the Commission, by arrangement, to act as the agent of a Commonwealth or State instrumentality. It follows, in counsels' argument, that such services are statutory functions which must be taken into account in considering whether to close a post office. It is a nice question whether the provision of agency services pursuant to an agreement made under s.12 should be cegarded as a "function" of the Commission for the purposes of s.7. The answer to that question depends upon the applicability of s.6(b) to s.12. This is a matter upon which my mind has fluctuated; there are arguments each way. But I do not find it necessary to reach a conclusion on that matter because the command of s.7 is directed only to satisfying the need for postal services. The term "postal services" is not defined by the Act but a guide to the meaning of that term is furnished by Part III of the Act, entitled "Postal Services". The activities referred to in that Part are all activities traditionally associated with a mail delivery service. In normal parlance, of course, the services referred to by the various deponents would not be described as "postal services". 18. It follows that, in my opinion, nothing in s.7 required Mr Broadbridge to consider the effect of closure upon the availability for customers of the mentioned agency services. I think that he was entitled to take that matter into account, if he wished, because the provision of those services was authorized by the Act. But he was not bound to consider this matter; so that his failure to do so does not result in legal invalidity. I turn to the question of substituting an agency. This is, of course, a matter directly related to the provision of postal services. It appears from Mr Broadbrige's oral evidence that two different types of agency are conducted on behalf of Australia Post. A "full-time self-contained" agency looks like a post office. It offers only services -- perhaps including agency services -- commonly associated with post offices. People must be engaged full-time merely to provide those services; with consequential diseconomies if there is insufficient business to justify their full-time employment. The second type of agency does not necessarily "non require the fuli-time services of anyone. A self-contained" agency is conducted in conjunction with some other, compatible, business; such as a newsagency or a gift shop. The agent carries out postal functions as required by customers from time to time but, at other times, is free to attend to the principal business. Although the details were not spelled out in evidence, I gather that the remuneration of 19, the agent is related to the volume of business undertaken at the agency subject to certain guaranteed amounts for salary and accommodation. The possibility of establishing an agency service at Watsons Bay was fleetingly referred to in the memoranda exchanged between Mr Broadbridge and Mr Cumberland. In his initial memorandum, of 12 May 1986, Mr Cumberland suggested only two options: to close the post office and sell the property and to close the post office and leave Mr Stammers in the residence. He did not canvass either the possibility of making the existing post office more cost-efficient or the possibility of substituting an agency. In his reply Mr Broadbridge commented "there is a major omission in your assessment of the options associated with Mr Stammers' quarters" but he did not raise other options for providing a continuing service. However, he did ask: "9, What are the rules relating to conversion to agency? No of units?" Mr W A Eddleston, who responded on behalf of Mr Cumberland on 27 May 1986, answered: "9] The policy relating to conversion to Agency is as follows : An official post office may be considered for change to agency operation when the following conditions are met : 1] for each of two consecutive years, an official post office has less than the equivalent of a full-time workload on counter and office mail processing activities for one person in office hours for less than 125,000 agency work units earned for postal business]. 20. 2] the business offering is not likely to increase significantly in the foreseeable future. 3] the Postmaster and other regular staff can be suitably placed. NOTE : Subject to the approval of the Managing Director, change to agency operation may also occur when the business level exceeds that specified above but there is community acceptance or support for the conversion. Watsons Bay meets 2 and 3 of the criteria but not 1." None of the subsequent memoranda contain any reference to a possible agency. Even after his oral evidence I am uncertain as to the extent of the thought which Mr Broadbridge gave to the possibility of conversion to an agency. At an early stage of his evidence he was referred to para.1.2.2 of the Commission's Field Manual, Part 4. That document sets out the policy of the Commission on the opening of post offices (Section 1) and upon their withdrawal (Section 4). Para.1.2.2 refers to four items of business: mail needing to be posted over the counter, postage stamp sales, money orders being issued and paid and telegrams being lodged and received for delivery. Mr Broadbridge was asked whether it would have been practicable to have these functions performed at Watsons Bay by an agency. He said that this would have been a possibility but that he rejected it on financial grounds. 21. There was considerable evidence from Mr Broadbridge about the possibility of an agency. Much of this evidence was given in response to questions asked by me because I found considerable difficulty in understanding the Commission's approach to the use of agencies. Since the hearing I have re-read the whole of Mr Broadbridge's evidence but my difficulty remains. As Mr Eddleston's memorandum -- in which he quotes from para.7.1 of the Manual -~ reveals, the Commission's policy does contemplate the possible conversion of an official post office to an agency; but, ordinarily, only where the workload is less than one full-time job, equivalent to 125,000 work units. Where the volume of business is greater -- as in the case of Watsons Bay -~ the available choice, according to the policy, is between keeping open a full post office -- perhaps uneconomically -- or closing down altogether. It seems that, within a certain range of figures, the greater the demand for postal services in an area the less chance there is of their being provided. Mr Broadbridge pointed out that the range of services provided by a a typical agency was narrower than that which would be provided by an official post office. This must mean a diminution in revenue but, as he said, costs would also decrease. Although no detailed figures were given, it does appear likely that the costs attendant upon the provision of a full-time self-contained agency at Watsons Bay would be much the same as those applying to an official post office; so the 22, service may be uneconomic. But, subject to one qualification, there is nothing to indicate that a non self-contained agency, conducted by a local shopkeeper and restricted to basic services, would be uneconomic. By "basic services" I mean the four services referred to in para.1.2.2 of the policy, perhaps together with the provision of private boxes. These services are, apparently, commonly provided by agents. They are the services -- excluding agency services pursuant to s.12 of the Act -- whose loss will, upon the evidence, cause most difficulty to Watsons Bay residents and business people. The qualification mentioned in the previous paragraph is that Mr Broadbridge did make a general observation in his evidence that. if he converted to an agency, he would have to spend two dollars for every dollar gained in revenue. He gave no details of any calculation to this effect. Indeed, he did not even say that he had made such a calculation. During the course of his evidence I referred to my difficulty in accepting that he could not get a local business person who would be prepared to undertake the basic services, with or without private boxes, at a cost which provided Australia Post with a commercial return. Mr Broadbridge responded: "It is not a negotiable price. It is set out in conditions. Payments are determined. I am not a free agent to negotiate on an individual contract basis". He said that a very large number of agencies in New South Wales operate at a loss. 23. My interpretation of this evidence is that the Commission has committed itself to a series of conditions governing agencies which are such as to make it difficult, if not impossible, for them to operate otherwise than at a loss to the Commission. Watsons Bay currently does almost twice the volume of business which is regarded as raising the question of conversion to an agency. Substantial portions of this business would be lost upon conversion to an agency but, even so, it appears likely that the remaining business would exceed 125,000 work units. It seems to me a matter of public concern if it is not possible for the Commission profitably to operate an agency at this volume of business, serviced by vehicles stationed at Vaucluse which, in any event, have to travel daily to Watsons Bay; to deliver mail to HMAS Watson and to clear the street letter boxes. There appears to be a strong case for the Commission to revise its approach to the matter of conditions, so as to make it possible for officers such as Mr Broadbridge flexibly to negotiate appropriate arrangements with local shopkeepers. However these matters may be, it is another question whether there was a failure by Mr Broadbridge to give consideration to the possibility of converting to an agency. I do not think that he gave this course any extensive consideration. He said in evidence that he did not consider taking advantage of the exception to criterion 1 of para.7.1.1 of the policy which is contained in the note to that paragraph. But I see no reason to doubt the evidence of Mr Broadbridge that he did consider, and reject upon financial 24, grounds, the possibility of an agency. It would be more satisfying if the evidence showed that he had considered a calculation of the likely revenue and expenses resulting from an agency operation. However, it is not essential, in point of law, that a decision-maker in the position of Mr Broadbridge descend to that degree of detail. Where a decision-maker is bound in law to consider a matter, he or she must give the matter genuine, as distinct from nominal or perfunctory, consideration. But decision-makers are entitled to rely upon their general experience and knowledge. As would be expected of anyone in his position, Mr Broadbridge has considerable general knowledge of the financial ramifications, to the Commission, of operating agencies. Having regard to that matter I am not persuaded that his fairly summary dismissal of this option represented a failure to take into account the possibility of satisfying in this manner the need of the Watsons Bay community for postal services. The wisdom of the decision, and the wisdom of the policies which make difficult the establishment of non self-contained agencies, are not, of course, matters for determination by the Court. See Minister for Aboriginal Affairs v_ Peko Wallsend Ltd (1986) 66 ALR 299 at pp.309-310. In the result I reject both of the arguments based on failure to take into account a relevant matter. 25. Mr Broadbridge's authority Section 36 of the Postal Services Act provides that the Commission may, by instrument under its seal, delegate inter alios to an officer, either generally or as provided by the instrument of delegation, all or any of its powers under the Act, except the power of delegation. By an instrument dated 15 March 1984 the Commission delegated to the officers in its service occupying certain specified positions, including Chief Manager, Operations, in New South Wales alli of the powers that had been delegated to the occupant of the office of State Manager, New South Wales. The applicant accepts that these powers include the provision and withdrawal of postal facilities in a particular location. However, the instrument of delegation provides that the exercise of the delegated powers is subject, amongst other things, "to any direction which may be issued from time to time by the Commission" and to "associated policies, procedures and guidelines". Counsel for the applicant contend that the Field Manual issued by the Commission is a direction or a policy within the meaning of the instrument of delegation, so that Mr Broadbridge's decision was a valid decision only if it was consistent with the Field Manual. I think that this is correct. The status of the document is made clear by the opening sentence of its Foreward: "This manual presents Australia Post's policy on a number of facilities and services the enterprise provides". It is a standing statement of policy amended from time to time. 26. Counsel for the respondents disputes this contention. He says that the document merely provides non-binding guidelines for decision-makers. A comparison is made with the Administrative Procedures considered in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493. In that case the High Court held that contravention of the procedures did not create any rights relevant to the standing of the plaintiff. It seems to me doubtful whether the ACF case could have any relevance to the present controversy at all, the applicant being accorded standing; even if the decision to close the post office had been made by the Commission itself rather than its delegate. But it clearly offers no answer to a claim of excess of authority. Mr Broadbridge's authority to make a closure decision was limited, by the instrument of authority itself, to closures which complied with the policy. Once it be made to appear that a particular closure fails to comply with that policy, the decision is one which Mr Broadbridge had no authority to make. The policy is more than a guide. It is a limitation of power. If Mr Broadbridge's decision was not one which he was authorized to make, s.5(1)(c) of the Administrative Decisions (Judicial Review) Act applies. The decision ~- being a decision required to be made under an enactment -- was one which "the person who purported to make the decision did not have jurisdiction to make". 27. As previously mentioned Section 4 of the Manual relates to the withdrawal of postal facilities. Paragraph 4.1.1 sets out the following general policy: "4.1.1 The general policy of Australia Post is to provide, relocate, withdraw or otherwise vary the provision of counter facilities to meet changing community needs for services in a cost-effective and efficient manner." Reference is made to withdrawal policies in para.4.2.1, the relevant policies for urban areas being in Attachment 1 and for rural areas in Attachment 2. Attachment 1 sets out three cases in which a post office or agency in an urban area may be considered for withdrawal. The only arguably relevant case is the first, namely "the circumstances do not meet the provision policy (see paragraph 1.2.2 of Section 1)". Paragraph 1.2.2, under the heading "Provision Policy", states: "1.2.2 In urban areas the establishment of a new facility may be considered where: . it is clear that the location selected will develop into a main shopping area justifying a post office in the foreseeable Future, and an agency is necessary to avoid inconvenience to a substantial number of customers - at subsidiary shopping centres where alternative facilities are not reasonably accessible and the extent of retail trading is such that an agency is expected to earn an annual level of 60,000 agency work units within 2 years of opening, for the following items of business - 28. - mail needing to be posted over the counter . postage stamp sales expected - Money orders likely to be issued and paid . telegrams likely to be lodged and received for delivery . in special case at other subsidiary shopping centres there is clear evidence that the lack of a counter facility is inconveniencing a substantial number of customers, because of the distance to be travelled to the nearest counter facility and its inaccessibility by public transport. The Attachment also deals with community consultation: "Before a final decision is taken to withdraw or relocate a counter facility, the likely local reaction is to be ascertained by informing the local Federal and State Members of Parliament, representatives of Local Government or other appropriate responsible community groups, and the Post Office Agent, of the reasons prompting the change and the alternative facilities which will be available to local residents. As far as it is reasonaly practicable to do so, the proposal is to be discussed with these community representatives but, in all cases, the matter is to be discussed with the Federal Member who also is to be informed officially of the final decision well before a change takes place." This requirement is supplemented by para.4.3.4 which provides that, "where there has not been adequate consultation with the local Federal Member and other community representatives, closure is to be deferred, if practicable, until this has been done". 29. Finally, para.4.3.3 provides: "4.3.3 Unless there are compelling reasons to the contrary, post offices or full-time service agencies in urban areas within 2km of another counter facility, should be accorded a low priority for withdrawal, except as part of a clearly defensible and approved local group restructuring program. Three contentions, arising out of these provisions, are advanced on behalf of the applicant. First, it is said that the circumstances at Watsons Bay meet the provision policy in para.1.2.2, with the result that none of the cases in which a post office may be considered for withdrawal apply. Secondly, complaint is made of the failure of Mr Broadbridge to comply with the consultation requirements of the policy. Finally, it is said that there is no "clearly defensible and approved local group restructuring program". I think that there is substance in each of these submissions. Paragraph 1.2.2 provides for consideration of the establishment of a new facility in each of two different types of location: at potential main shopping areas, and at existing subsidiary shopping centres. The assumption is apparently made that there will already be postal facilities at existing main shopping areas. It is not argued that Watsons Bay is either an existing or a potential main shopping area; so the first sub-paragraph of para.1.2.2. is irrelevant. In his evidence Mr Broadbridge expressed the opinion that Watsons Bay could not be described as a "subsidiary shopping centre". I reject that view. In the vicinity of the post office there are situate no less than 17 30, commercial establishments, most of them retail shops. [In the absence of a relevant definition in the Manual, the term "subsidiary shopping centre" must be accorded its ordinary meaning. In ordinary language the place where the post office is located is a shopping centre. It is subsidiary, in the sense that it provides a lesser range of goods and services -- day to day shopping rather than comparison shopping -~- than the main shopping centres of the area, such as Double Bay, Bondi Junction and, perhaps, Rose Bay. There is no doubt that Watsons Bay achieves over 60,000 work units for the four specified items of business. The remaining question is, then, whether alternative facilities are reasonably accessible. Upon this question there was considerable evidence as to which, in the end, there was no dispute. The nearest post office to Watsons Bay is ak Vaucluse. _ The distance between the two post offices, measured in a straight line, is 1.6-1.7km. But the two offices are separated by a steep incline and the distance between them, by the most direct road route, is about 2.3 km. There is a bus service from Watsons Bay to Vaucluse but a change of bus is necessary to travel from Watsons Bay to the Vaucluse post office. It is possible, without changing buses, to reach Rose Bay post office but this involves a much longer journey. 31. In any old suburb there are likely to be a significant number of long-time residents, now of advanced years. The evidence indicates that this is the position in Watsons Bay. But the number of elderly residents has recently. increased. On 6 November 1986 the Catholic Church opened a retirement village around the corner from the post office. This village has 34 units and it is expected that it will eventually accommodate about 50 people. The evidence of Mr F C Guigni, who interviewed the applicants for accommodation, is that the proximity of services -- including the post office -- was an important Factor in the minds of those who applied to enter the village. He said that the occupants of only five out of 14 units which were occupied at the date of his affidavit continued to drive a car: that three of the current residents would be incapable of enduring a bus ride to Vaucluse post office and that another five residents would experience substantial discomfort and distress in undertaking such a journey. Several elderly deponents referred to the difficulty and expense of a bus trip to the post office. None of this evidence was challenged. In determining whether, for the purposes of para.1.2.2 of the Manual, alternative facilities are "reasonably accessible" consideration must be given to a range of potential customers; not merely to the young and mobile. There are, of course, some people so confined that no facilities will be reasonably accessible to them but it seems to me that facilities so remote as to occasion the type of difficulties mentioned in the evidence to an appreciable ye 32. number of people cannot be described as "reasonably accessible". It follows that Watsons Bay falls within the second category of cases mentioned in para.1.2.2. Therefore it meets the provision policy in that paragraph; with the further result that it does not qualify for consideration for withdrawal under Attachment 1 to Section 4 of the Manual. In addition to contending that, on the Facts, para.1.2.2 is inapplicable to the present case counsel for the respondent relies on para.1.2.5. This paragraph states that "the establishment of any new post office agency is subject to" various matters. He contends that, these matters not being applicable, the case falls outside the provision policy, so that it is one in which withdrawal may be considered under Attachment 1. However, I do not think that this reference assists his case. In the first place it is far from clear that para.1.2.5 has any relevance. Attachment 1 identifies the provision policy to which it refers as para.1.2.2 of Section 1. It does not refer to the whole of Section 1 or to any other paragraphs in that Section. Moreover, para.1.2.5 is limited, in terms, to the establishment of a new post office agency. It is not concerned with a counter facility at a post office. But, in the second place, para.1.2.5 does envisage the establishment of a new post office agency in an urban area within 2km radial distance of an existing counter facility where there are special reasons for so doing. An example of such a special reason is stated to be: "the presence of physical geographical barriers which effectively divide the urban development and restrict access to an extent that would 33. substantially increase the distance travelled to reach the agency for a large proportion of customers". On the evidence, having regard to the steep incline between Watsons Bay and Vaucluse post office and the fact that the shortest road distance is almost half as great again as the radial distance, this is not an inapt description of the subject situation. In relation to consultation, the evidence is that Mr Broadbridge had no contact with any State member and that his only contact with the local council was a conversation with the mayor at a function. There is no evidence as to what was said. It does not appear that the matter was raised formally either with the mayor or with the council as a whole. The only contact with the federal member was Mr Cumberland's telephone conversation with Mr Coleman in October 1986. That contact was primarily aimed at providing Mr Coleman with material with which he might respond to any protests he might receive. Mr Broadbridge deliberately refrained from speaking to Mr Stammers about the matter, believing that he knew his view. There is no evidence of any other local consultation; despite the fact that there is no suggestion of any problem about wider consultation. In my view the desultory contacts which occurred fall well short of the consultation required by Attachment 1 to be undertaken before closure of a counter facility. Mr Broadbridge did not attempt to gauge the likely local reaction. 34. In cross-examination Mr Broadbridge was asked about the existence of an approved local group restructuring program. In reply he referred to the "program of financial improvement applying to the whole of New South Wales"; that is the plan to improve the trading result by $18 million. He was asked how this satisfied the requirements of para.4.3.3 of the Mannual. His reply was as follows: "For the metropolitan area, yes -- for various areas of the metropolitan area. For the area involving Vaucluse, Bondi and Watsons Bay, yes, because that is the mechanism by which I am seeking to reduce the poor financial performance we have at the moment." It is, I think, apparent that para.4.3.3 has in mind something much more sophisticated and precise than a general plan to effect economies. I understand the phrase "clearly defensible and approved local group restructuring program" to refer to a carefully prepared rationalisation program which can be demonstrated to provide an acceptable level of service in a local area. One example would be a case where one post office took over the functions previously being undertaken by two. Another would be a case where services previously provided by one or more post offices were reorganized so as to be provided by one or more agencies, or vice versa. The mere closure of a facility, leaving some basic postal services unavailable, cannot properly be described as a "restructuring" program. Paragraph 4.3.3 does not, of course, say that a post office may not be closed in the absence of a local group restructuring program; merely that its closure should be 35. accorded a low priority. But in this case there is no suggestion that the closure of Watsons Bay post office was a low priority step. On the contrary the investigation of the closure of this office was one of the first results of the Commission's directive. The procedural deficiencies which I have discussed may have been important in the ultimate decision. I have no doubt that Mr Broadbridge -- concerned to effect savings -- made a considered decision on the matter. How much reduction in loss would result from closure is not clear. The 72.5% loading added by Mr Broadbridge includes a contribution -- the amount of which is unspecified -- to the costs of the Divisional and State offices. It is difficult to see that those costs would be reduced by closure. But I do accept that Mr Broadbridge was actuated, and only actuated, by the laudable purpose of attempting to reduce the Commission's losses in the Sydney metropolitan area. The difficulty is that his inadequate consultation deprived him of knowledge of a number of matters which must be important in making the balanced judgment required by s.7 of the Act. He was not aware of the full extent of the shopping centre; a matter which he regarded as very important in considering whether customers would be inconvenienced by closure. He seems to have had little, if any, appreciation of the problem likely to be faced by elderly people by withdrawal of facilities which, on the evidence, are important to them: especially the opportunity to send parcels and to purchase and cash money orders. He was not aware of the opening of the retirement 36, village. The obvious purpose of the consultation requirement of Attachment 1 is to ensure that the decision on closure is informed on matters such as these. The obvious purpose of para.4.3.3 is to ensure that if, notwithstanding such matters, a closure decision has to be made, it will be made -- and will be seen to have been made -~ as part of a re-thinking of the pattern of local services in a local area whereby, to paraphrase s.7, the Commission makes its postal services available to the people of that area so far as is reasonably practicable. For each of the three reasons argued, I am of the opinion that the decision made by Mr Broadbridge fell outside the power delegated to him by the Commission. The decision is invalid in law and must be quashed. The respondents must pay the costs of the applicant of the proceeding. I certify this and the thirty-five (35) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. Associate: ~~ pounce. namaste Cc —— Date: 1 April 1987 Counsel for the Applicant: Mr A P Whitlam QC with Mr P P Costello Solicitors for the Applicant: HEANE , RicHARDsoN + HEANEY Counsel for the Respondents: Mr D K Catterns Solicitors for the Respondents: Australian Government Solicitor Date of hearing: 25 February 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.626 of 1987 ) GENERAL DIVISION ) BETWEEN: MALCOLM BARRY STAMMERS Applicant AND: W_H BROADBRIDGE First Respondent AUSTRALIAN POSTAL COMMISSION Second Respondent CORRIGENDUM Correction to the judgment of his Honour Mr Justice Wilcox of 1 April 1987: page 11 In the penultimate paragraph, fourth line, please substitute "1987" for "1986" where there appearing. 22 April 1987. 4S CATCHWORDS Bankruptcy - application to set aside bankruptcy notice - application for declaration that Court 1s satisfied that applicant has cross demand equal to or exceeding amount payable to respondent under final orders - power to grant temporary extensions of time for compliance with bankruptcy notice - Bankruptcy Act 1966: s.40(1)(g), s-41(6A), $s.41(7); Bankruptcy rule 103(1). RE KEVIN LEONARD MORGAN NO. B 5354 of 1986 Beaumont, J. Sydney lst April 1987 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY No. B. 5354 of 1986 RE: KEVIN LEONARD MORGAN Ex Parte: JOHN FAIRFAX AND SONS LIMITED MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: lst April 1987 Where made: Sydney THE COURT ORDERS THAT: 1. Declare that the Court is satisfied that the applicant has a cross demand equal to or exceeding the amount of the sum payable by him to the respondent under the final orders mentioned in bankruptcy notice No. B. 5354 of 2. Note: 1986, viz, $7,316.27. The respondent pay application. Settlement and entry Bankruptcy Rule 124. the of applicant's orders is costs dealt of with the in IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKPUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY No. B. 5354 of 1986 RE: KEVIN LEONARD MORGAN Applicant Ex Parte: JOHN FAIRFAX AND SONS LTD. Respondent Coram: Beaumont, J. Date: ist April 1987 REASONS FOR JUDGEMENT This is an application for a declaration that the applicant, Kevin Leonard Morgan ("the debtor"), bas a cross demand equal to or exceeding the total amount payable to John Fairfax and Sons Limited ("the creditor"), under four orders for the payment of costs made by the Supreme Court of New South Wales being a cross demand that the debtor could not have set up in the action or proceedings in which the orders were obtained for the purposes of s.40(1)(g) of the Bankruptcy Act 1966 ("the Act"). The debtor commenced proceedings against the creditor in the Supreme Court 1n November 1983 claiming damages for a defamation. The debtor claimed that the creditor defamed him in an article published in the Australian Financial Review on 17th November 1983. Several interlocutory applications were heard and determined by the Supreme Court in relation to discovery, interrogatories, pleadings and particulars. Orders for costs were made against the debtor for certain of the applications. The orders in question were made in April and May 1985 and were in the total sum of $6,837.64. The trial of the action took place in February and March 1986. Towards the end of the hearing, the trial judge ordered that the jury be discharged and that there be a new trial. The debtor was ordered to pay the creditor's costs of the trial. The debtor sought leave to appeal from the decision awarding costs against him. In April 1986, the Court of Appeal granted leave to appeal. It 1s anticipated that the appeal will be heard in the middle of 1987. On 28th November 1986, on the application of the creditor, the Deputy Registrar issued a bankruptcy notice addressed to the debtor. The notice recited that the creditor claimed the sum of $6,837.64 together with interest making a total of $7,316.27 was due by the debtor to the creditor under final orders obtained by the creditor against the debtor in the Supreme Court in April and May 1985. The notice required compliance with its terms within 14 days after its service. Notice was served on the debtor on 28th January 1987. On 10th February 1987 (1.e. before the expiration of the 14 day period stipulated in the bankruptcy notice had expired) the debtor filed an application seeking the £ollowing orders: "1. That the Bankruptcy Notice issued by and on behalf of John Fairfax and Sons Limited on 28 November 1986 be set aside. 2. That the time in which the Applicant 1s to comply with the said Bankruptcy Notice be extended until after the determination of the appeals between the parties in the Court of Appeal (New South Wales Court of Appeal No. 78 of 1986 and 103 of 1986). 3. For such other or further orders as to this Honourable Court shall be deemed necessary...." No affidavit was then filed but the application stated that, on the hearing of the application it was intended to use an affidavit sworn by the debtor. The application was set down for hearing on 9th March 1987. On 10th February 1987 the Deputy Registrar made an order in the following terms: "Upon condition that the bankruptcy notice in this matter was served on the debtor on 28 January 1987 pursuant to section 41(6B) of the Bankruptcy Act 1966, I extend the time allowed for compliance with the reauirements of the bankruptcy notice to 9 March 1987". On 9th March 1987, the matter came before me in the general bankruptcy list. I was then informed by counsel for the debtor that the application to set aside the bankruptcy notice was not pursued but that the debtor was seeking a declaration that he had a cross demand of the kind contemplated by s.40(1)(g) of the Act. Counsel for the creditor indicated that the debtor's application was opposed. As it appeared that the hearing of the matter would take some time as a contested application, I directed that it be fixed for hearing as a special fixture on 23rd March 1987. I indicated that I proposed to further extend time for compliance with the bankruptcy notice up to and including 23rd March. Counsel for the creditor then indicated that he wished to object to any such extension on substantial grounds. In particular, he foreshadowed a submission, to be dealt with later in these reasons, that the Deputy Registrar had no power to grant the extension of time granted on 10th February 1987. He further submitted that I had no power to grant any further extension. In essence, his contention was that time for compliance with the bankruptcy notice had already expired and that the Court then had no power, retrospectively, to grant any extension. In the circumstances, I indicated that I granted further extension of time for compliance with the notice up to and including 23rd March but did so on the footing that I was not to be taken as finally deciding the question of the power of the Deputy Registrar or of myself to grant the extensions in question. On 23rd March 1987, the debtor's application was heard. In support of the debtor's application, counsel for the debtor read an affidavit sworn by the debtor on 12th February 1987 and an affidavit sworn by John Harris, a law clerk employed by the debtor's solicitors. In these affidavits, the history of the defamation proceedings as summarised above is stated. Reference is made in that evidence to the material published in the Financial Review of which complaint is made. That material, which is annexure A to the debtor's Amended Statement of Claim is annexed to these reasons. Before turning to the submission foreshadowed by the creditor that an act of bankruptcy has already been committed and that the Court has no power to deal with the present application, I will consider first the debtor's contention that the Court should now declare that the debtor has a cross demand of the kind required by s.40(1)(g). In Re Judd, Ex parte Pike (1924) 24 S.R. (NSW) 537, Maughan A.J. held that the term "cross demand" in a precursor of s.40(1)(g) included a claim for unliquidated damages for the tort of slander (at pp 539-40). See also Re Brink; Ex parte Commercial Banking Company of Sydney (1980) 30 A.L.R. 433 at pp.436-7; Re Gould; Ex parte Skinner (1983) 72 F.L.R. 393 at pp.406-7. For the purposes of s.40(1)(g), the Court is not to attempt a trial in advance of the debtor's defamation claim. However, the debtor must show that he has "a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in this cross demand" (see Ebert v Union Trustee Company of Australia Ltd (1960) 104 C.L.R. 346 at p.350. In Re Brink, supra, Lockhart, J. said that for present purposes, the Court must be satisfied that the debtor has "a fair chance of success" (at p.439). In the present case, I am satisfied, on the available material that the debtor has a fair chance of succeeding on the issue of liability in his defamation action. On the question of quantum, I am satisfied that the debtor has a fair chance of recovering a verdict in excess of $7,316.27. It is a requirement of s.40(1)(g) that the cross demand for damages for defamation could not be set up in the interlocutory proceedings in which the subject costs orders were made. This requirement is satisfied here. It follows that, subject to consideration of the contentions foreshadowed by the creditor, I would propose to make the declaration sought by the debtor. I turn now to the creditor's contentions. In the first place, the creditor submits that because the Deputy Registrar had no affidavit before him on 10th February 1987 to support the debtor's appplication, the Deputy Registrar lacked power to grant the temporary extension. Alternatively, it is said that the exercise of power to extend was voidable because it was something done arbitrarily in that there was no evidence to support the application. In my opinion, these submissions should not be accepted. Although there was no affidavit then before the Deputy Registrar, the formal application on them filed indicated that it was intended to file an affidavit by the debtor. Moreover, the extension granted was for a short period only. It is true that r.103(1) requires that any application be supported by an affidavit stating the facts upon which the applicant proposes to rely. However, there is nothing in the rules to suggest that if an affidavit is not filed at the time the application is filed, the proceedings are a nullity. On the contrary, r.103(1) should be construed as subject to the usual implication that its requirements be performed within a reasonable time (see Koon Wing Lau v Calwell (1949) 80 C.L.R. 533 at p.573). The debtor's affidavit sworn 12th February 1987, was filed on 13th February. In my view, it was filed within a reasonable time. There is no suggestion of bad faith on the part of the Deputy Registrar. Nor could 1t be suggested that he exercised his power capriciously or fancifully (c.£. The Queen v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177 at p.189). There is a presumption of regularity and in the absence of any material which could reasonably put the Deputy Registrar upon notice that the debtor's application was otherwise than bona fide, he was, in my view, justified in assuming that the debtor intended to prosecute in good faith an application to set aside the bankruptcy notice. On that assumption, 1t was proper, in my view, that a temporary extension of time be granted. Similar comments could be made concerning the further temporary extension granted on 9th March. In each case, the court is intervening on short notice, on an emergency basis, to hold the status dquo pending a full hearing of the respective contentions of the parties. It is true that, in the final result, the debtor has not prosecuted its'application to set aside the bankruptcy notice. What 'it now seeks is a declaration that the notice is "spent" (see James v Abraham (1981) 34 A.L.R. 657 at p.661). The debtor's application as filed sought an order setting aside the bankruptcy notice and also other or further orders as the Court deemed necessary. Even if a declaration of the kind now sought was, strictly speaking, not an order setting aside the notice, it is open to the debtor to seek further or other orders as is appropriate. By s.41(6A) of the Act, where, before the time fixed for compliance with the requirements of a bankruptcy notice, an application to set aside the notice has been filed with the registrar, the Court may extend the time for compliance with the bankruptcy notice. In my view, this power was applicable in the present case notwithstanding the subsequent change in the debtor's case: the condition precedent, viz the filing of an application to set aside the notice, was satisfied here at all material times (c.f. Streimer v Tamas (1981) 54 F.L.R. 253). It is true that s.41(7) of the Act, providing for an automatic extension in certain circumstances, cannot apply here. But it does not follow that a temporary extension cannot be granted pursuant to s.41(6A). I propose to make the declaration sought, with costs. I certify that this and the preceding s1x (6) pages are a true copy of the Reasons for Judgement herein of his Honour Mr. Justice Beaumont. fade 4 Gites Associate Date: 1st April 1987 Counsel and Solicitors for Applicant: C. Evatt instructed by Steve Masselos & Co. Counsel and Solicitors for Respondent: S.D. Rares instructed by Mallesons Stephen Jaques. Date of hearing: 23rd March 1987 Date Judgement Delivered: Ist April 1987 oo Ce tan 1, 4 t , OF a5, i v8 | 1 1 IN THE SUPREME CQURT OF DEW SQUEH WALES i SYDNEY REGISTRY : " he | DEFAMATION LIST -. ' it i COMMON LAW DIVISION - 1. 'The;Plaintiff 1s and was at all material tines. Sry} 2 professional consultant and commentator and a researc No. 17196 of 1983. unto telecommunications, finances, economics and 'E if ' costing. a of ' 'es KEVIN LEONARD MORGAN 2. The defendant is and was at all such times a compa) duly incorporated and liable to be sued in and ly 1tsG Plaintiff ; ; 1 said corporate name and style. : I 3, The defendant is and was the publisher of the JOHN FAIRFAX newspaper "The Australian Financial Review", which & SONS LIMITED said newspaper has a large circulations and is wide y H Defendant read in New South Wales and through the Commonweal t Australia. 4, In "The Australian Financial Review" of, November 17, 1983, the defendant published rand . RRR" x concerning the plaintiff certain words whi AMENDED STATEMENT OF CLAIM ,ye : oo ATS 'ph . Ve Filed pursuant to Order 5. The matter plained f i « ae ef David Hunt J. made i 4 above hereof in\@ Lanes May 3, 1985. , -. . defamatory of the Plain (a)- The plaintiff is not reputable. : (b}) The plaintiff is dishonest. (c) The plaintiff is unfit to be a consul i commentator, , (d) The plaintiff made phoney estimates of : and usage of the new satellite. i (e) As a consultant and commentator, the'#% STEVE MASSELOS § CO., is biased and not independent. Solicitors, (£}) The plaintiff does not carry out his 42-46 Martjn Place, Sydney. researches properly. 7 Telephone 232 7366 (g) The Plaintiff has deliberately endeavg Reference SGM.vc p DX 305 Sydney. deceive and mislead the Government off u and others. The above persons identified the Plaintiff as being the person referre¢ to in the material complained of. GENERAL DAMAGES o*~ ' Nn arrears ne Page 2. } f i The Plaintiff is questionable in his conduct. - "ft By reason whereof the Plaintiff has been greatly injured in his character, ND credit and reputation and has been brought into public hatred, ridicule and contempt. \ 1p . E , The Plaintiff claims damages, general damages, aggravated damages and ' F interest. , - 1G PARTICULARS UNDER SCR PT 67 R(12)(b) i The edition of the "Australian Financial Review" containing the material complained of was published, distributed and circulated throughout the , Commonwealth of Australia by the Defendant. PARTICULARS OF IDENTIFICATION | The matter complained of was published to persons with, knowledge of the Ik following: - i. The plaintiff supports control of the py by the Australian Telecommunications Cdmuni conclusions, analysis, estimates of cos satellite on behalf of the Telecom Unio om ee The plaintiff's hurt was increased by his inability to obtain consulta work after publication and by his having to obtain a salaried positional research officer with ATEA in September 1984. The publication advers@@™ affected the plaintiff's reputation so that he was unable to find con$agm work and was eventually obliged to obtain the salaried position. ~ 5;°: Page 3, 'Cc { gt AGGRAVATED DAMAGES ' ¥ "Dp (a) The Plaintiff's hurt and injury was increased by his knowledge that the ; Lmputations were false. . E ',(b) The Defendant's conduct was improper, unjustifiable and lacking in bona LF fides as evidenced by-- ~ (i) Excessive and widespread publication of the material complained {G of and over-sensational manner and method of presentation (position ' in newspaper, prominence and language used). H (i1) The material complained of was actuated by ill will and malice towards the Plaintiff. , I (i11) The Defendant was attempting to:- a) Discredit, attack and injure the Plaintiff and/or intimidate or J -- discourage him from continuing to persevere with his views concer K the proposed satellite. b) Influence the Australian Government to change or reconsider certain* of its decisions concerning ''Aussat". | c) Influence the Australian Government to,sevenrably consider proposals! to be made by television companies 4as6ciaté Pith the Defendant { iM ¥ : ce . ™ . and The Fairfax Group concerning pay FV. ONG 3 a A x - (Particulars are annexed hereto and iv) Conduct of the Defendant in filing a FILED eee ees CC Se Soligitor for the Plaintiff - : F | TO THE DEFENDANT John Fairfax & Sons Limited be b> c/- Messrs. Stephen Jaques Stone Jomegft it Solicitors 'B) AMP Centre, 50 Bridge Street, 'Ee Sydney. 4, You are liable to suffer judgment or an order against you unless the prescribed ' F form of notice of your appearance is received in the Registry within fourteen i (14) days after service of this statement of claim upon you and you comply with 4G ' the Rules of Court relating to your defence. ' H Nominated Place for Trial: Sydney 7 I Plaintiff Kevin Leonard Morgan 323 Catherine Street, _. Leachhardt. Solicitor Steve Gregory Masselos 42-46 Martin Place, Sydney. Address for Service Steve Masselos & Co., Solicitors, 42-46 Martian Place, Sydney. Address of Registry Supreme Court of New South Wales Queens Square, Sydney. NOTICE FOR SERVICE AT DOCUMENT EXCHANGE The Plaintiff may be served at the following exchange box in Sydney of the Ang Document Exchange Pty Limited. STEVE MASSELOS & CO., sae? Solicitors, ews DK 305 Sydney. DATED: B SATELLITE DECISIONS {, Cc The narrow decision by the Labor (" Caucus ondorsing the Cabinet decision on ' 'D the future of the Australian satellite must be welcomed even more than the decision on uranium mining. S E After all, Australia can survive without the mining and export of uraniua, but F wrong decision on the future of telecommunications could be harmful in a much ' more fundamental manner. 10 4G The most important aspect of the ) satellite decision is that it shows that the Goverment has taken on board the advice H it hax received about the pernicious influence played in Australia's communications 15 { developments by Telecon. The simple truth is that the Telecoa monopoly cannot be trusted to operate the expanding and innovatory expects of telecommunications. The way in which Telecom has attempted to manipulate the public presontation of the facts of new technology and the satellite in the past is e matter which in itself needs examination. Even more questiongzhle is the role of the tolecommunications unions which ere determined to maintain the monopoly which they can manipulate, and hope to suppress the extension of competitive tethnologics, regardlass of any concept of a general public interest. No[surprisingly, the arguaents of the Telecom unions have had a strong influence in the councils of the Government. Thev have heon willing to produca totally. phony. exfinates of casts and usage of the new satellite. enploying supposedly reputable and independent commentators. But as yot there has been no proper examination of the economics of the satellites. There has been a good deal of opposition emanating fron Treasury, which, typically of Treasury, has not been addressed to the major issues, The argument against the satellite acconding to Treasury has been basically that the public . will end up paying for most of its cost as all the public sector interests, frou the Education Department, through the ailitary and on to the dung beetle program will clain' that thoy havo a right to utilise it at