y a £ LATCH ECS Administrative Law - Tudisial raview - decision sf Jecretary of Department of Aviation pursuant ta the Two Airlines Agreement - whether reviewable under Administrative Decisions (Judicial Review) Act 1977 (C'th.)} Issue estoppel - operation where some issues determined at first instance on application for declaration under 5.13(4A). Administrative Decisions (Judicial Review) Act 1977 (C'th) ss.3, 13. Airlines Agreement Act 1981 (C'th) and Schedule RAD MARTIN TAYLOR v. ANSETT TI2iSPORT INDUSTIIES LIMITED ana AUSTRALIAN NATIONAL AIRLINES COMMISSION No. G 68 of 1987 Northrop, Fisher and Ryan Jd 13 April 1987 Melbourne IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 68 of 1987 ) GENERAL DIVISION On Appeal from the Federal Court of Australia Between: RAE MARTIN TAYLOR (who brings this appeal and who was sued in his capacity as Secretary of the Department of Aviation) (Appellant) And: ANSETT TRANSPORT INDUSTRIES LIMITED and AUSTRALIAN NATIONAL AIRLINES COMMISSION (Respondents) Court: Northrop, Fisher and Ryan JJ. Date: 13 April 1987 Place: Melbourne MINUTE OF ORDER THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders 1s dealt with in 0.36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 68 of 1987 ) GENERAL DIVISION ) ON_APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : RAE MARTIN TAYLOR (who brings this appeal and who was sued in his capacity as Secretary of the Department of Aviation) Appellant and ANSETT TRANSPORT INDUSTRIES LIMITED and AUSTRALIAN NATIONAL AIRLINES COMMISSION Respondents COURT: NORTHROP, FISHER AND RYAN JJ. DATE: 13 April 1987 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. In my opinion, the appeal against the order made on 2 February 1987 that the notice of objection to competency be overruled, should be dismissed on the ground that' the decision made by the appellant on 31 October 1986 was a decision of an administrative character made under an enactment within the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). On this issue I agree with the reasons expressed by Ryan J. and have nothing further to add. The other question raised on the appeal relates to whether the appellant is estopped from raising the substantive issue sought to be determined by the appeal. In my opinion, the appellant is not estopped from raising the question of competency andI shall state my reasons for coming to that opinion. In considering this question, the history of the proceedings between the appellant and the respondent Ansett Transport Industries Ltd. ("Ansett") is of importance. On 23 December 1986, the Court, on an application made by Ansett under s.13 of the Judicial Review Act, made a declaration that Ansett was entitled to make a request pursuant to sub-section 13(1) that the appellant 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 of 31 October 1986. In making that order, the Court held that the decision made by the appellant on 31 October 1986 was a decision of an administrative character made under an enactment within sub-section 3({(1) of the Judicial Review Act. By notice of appeal dated 13 January 1987, the appellant appealed from that declaration, but no order was made staying the operation of the declaration of 23 December 1986. As a result, under sub-section 13(4) of the Judicial Review Act, the appellant was required to give the statement under sub-section 13(1) within 28 days after 23 December 1986, namely on or before 20 January 1987. The appellant furnished that statement to Ansett on 19 January 1987. By application dated 28 January 1987, Ansett, pursuant to s.5 of the Judicial Review Act, sought an order of review in respect of the decision of the appellant made on 31 October 1986. By notice of objection to competency, the appellant, pursuant to 0.54 r.4 of the Rules of Court, objected to the competency of the application by Ansett on the ground that his decision of 31 October 1986 was not a decision of an administrative character made under an enactment within the meaning of the Judicial Review Act. The notice of objection to competency came on for hearing before the Court on 2 February 1987. The question raised by that notice was the same as that determined by the Court in making the declaration on 23 December 1986. Very sensibly, at the hearing of the objection to competency, the parties adopted the arguments put at the hearing of the application for a declaration under 3.13 of the Judicial Review Act. The Court then said:- "... I overrule the notice of objection to competency ... and in so doing I rely upon the reasons which I gave on 23 December last year ... that (Ansett) was entitled to make a_ request pursuant to sub-section 13(1) of the Judicial Review Act." It should be noted that at that hearing, Ansett did not rely on an estoppel based on the declaration made by the Court on 23 December 1986. It is difficult to see how an estoppel could have been raised. The appeal from the declaration made on 23 December 1986 was pending. It was obvious that the appellant wanted the Federal Court, in its appellate jurisdiction, to decide the question raised by the declaration and the order of 2 February 1987. In due course, by notice of appeal dated 19 February 1987, the appellant appealed, and insofar as necessary, sought leave to appeal, from the order made on 2 February 1987. By notice of discontinuance dated 23 February 1987, the appellant discontinued the appeal against the declaration made on 23 December 1986. By letter dated 11 March 1987, the solicitors for Ansett notified the solicitor for the appellant that the respondent would contend at the hearing of the application for leave to appeal and the appeal, if granted, that the declaration made on 23 December 1986 "gives rise to an issue estoppel" as between the appellant and Ansett with respect to the issues the subject of the appeal from the order made on 2 February 1987. It should be noted, that at the hearing of the appeal, Ansett relied on evidence contained in an affidavit sworn 11 March 1987. The facts set out, with the exception of the fact that the statement under sub-section 13(1) of the Judicial Review Act had been furnished, have been taken from that affidavit. The facts are not in dispute. Some of those facts occurred after 2 February 1987. At the hearing of the appeal, no objection was raised to the admission of the affidavit material, see s.27 Federal Court of Australia Act 1976, but the need for that material illustrates the difficulty of applying any estoppel with respect to this appeal since it appears that estoppel arises because of the discontinuance of the appeal from the declaration made on 23 December 1986. Issue estoppel could not have been raised as a defence to the objection to competency when it was heard on 2 February 1987. The appellant had an expectation that the issue between the parties would be heard and determined by a Full Court. On the peculiar facts of this appeal, the Full Court should hear and determine the appeal on the facts as they existed on 2 February 1987. It should not countenance a highly technical defence, by analogy, which arose after the order appealed from was made, has no moral merit, does not deprive Ansett from relying on any matter which it could have relied upon on 2 February 1987 and which would prevent' the Full Court from considering the substantive question between the parties. That question is of importance and is one which should be heard and determined by the Full Court. A serious issue has arisen between the appellant and Ansett as to whether the decision made by the appellant on 31 October 1986 is a decision of an administrative character made under an enactment within the Judicial Review Act. The appellant desires and at all relevant times, desired, that issue to be decided by a Full Court exercising the appellate jurisdiction of the Federal Court. A Full Court has not considered that issue. Ansett 1s seeking remedies conferred by the Judicial Review Act. During the course of seeking those remedies, many orders of the Court may be made which, in theory, could be made the subject of an appeal toa Full Court. A respondent is entitled to raise any defence available. An appeal from every order made in the course of proceedings should not be encouraged. In the present case, the furnishing of a statement under sub-section 13(1) of the Judicial Review Act is but part of a process that may result in an application being made under s.5. The absence of such a statement does not prevent an application being made under s.5. The furnishing of such a statement does not of necessity result in an application being made under s.5. Where an application is made under s.5, the procedure by way of notice of objection to competency provided by 0.54 r.4, is designed to bring the application to an end, in the appropriate case, before the parties incur unnecessary legal expense involved in a full hearing of the application. An order rejecting an objection to competency is interlocutory in nature and an appeal can be taken only by leave. If an appeal is not taken, there is nothing to prevent an unsuccessful respondent to an application under s.5 from appealing against orders made and on that appeal raising the issue of whether the application under s.5 was competent. The order rejecting the objection to competency would not be sufficient to support a defence of issue estoppel being raised on the appeal. The facts of this appeal illustrate the problem. Apparently no issue estoppel arose while the appeal was pending from the declaration made on 23 December 1986. The basis for the estoppel arose on the discontinuance of the first appeal. At that time, the second appeal, raising the game 1ssue as was raised by the first appeal, was pending. There is much to he said for the view that there is something wrong with the law if that issue could be heard and determined by a Full Court only so long as both appeals were pending. In my opinion, no question of issue estoppel can be applied on this appeal. At issue between the parties 1s the question of whether the appellant''s decision of 31 October 1986 was a decision of an administrative character made under an enactment within the Judicial Review Act. The Full Court should be able to hear and determine that issue on this appeal. In the result, the Full Court has ruled that the application is competent. If in due course orders adverse to the appellant are made in that application, he has the right to appeal but on any such appeal, he could be met by a plea by Ansett of res judicata if he tried to raise any question of competency. The added party, Australian National Airlines Commission, having been added as an applicant to the application after the order of 2 February 1987 had been made, could not plead res judicata or issue estoppel, but the appellant would have to face the effect of an adverse judgment of a Full Court on the issue of competency. Because of the conclusion I have come to, based as it is on the peculiar facts of this appeal, I express no opinion on the question of whether, in an appropriate case, estoppel could be raised as a defence to an application under the Judicial Review Act. Technically, estoppel is a matter to be pleaded by way of defence. In applications under the Judicial Review Act, pleadings are not had. By analogy, a respondent might be able to base an objection to competency to an application on principles similar to res judicata or issue estoppel. Likewise, by analogy, an applicant might be able to answer an objection to competency by relying on principles similar to res judicata or issue estoppel. In either event, it might be more appropriate if the Court used those matters in the exercise of its discretion in exercising the powers conferred upon it. In any event, these are matters which should, in the first instance, be raised before the Court exercising its original jurisdiction, not before a Full Court exercising its appellate jurisdiction. More importantly, however, in proceedings under the Judicial Review Act, the Federal Court should be concerned to ensure that it acts fairly between parties. The concept of procedural fairness has been applied in reference to matters being considered by administered bodies; see for example Kioa and others v. Minister for Immigration and Ethnic Affairs and another (1985) 62 A.L.R. 321 per Mason J. at pp.345-349 especially at p.347. In determining practices and procedures to be followed in proceedings before the Court under the Judicial Review Act where the Rules of Court are silent, the Court should apply the same principles of procedural fairness which it insists should be applied by persons exercising administrative powers. In the present, I would not grant leave to Ansett to rely on the further facts on which it seeks to establish a defence of issue estoppel. In the result, I would dismiss the appeal with costs. I certify that this and the eight (8) preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice R.M. Northrop. Associate ....2huav.f dues... Date a iA y4 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G68 of 1987 ) ) GENERAL DIVISION BETWEEN: RAE MARTIN TAYLOR (who brings this appeal and who was sued in his capacity as Secretary of the Department of Aviation) Appellant - and - ANSETT TRANSPORT INDUSTRIES LIMITED and AUSTRALIAN NATIONAL AIRLINES COMMISSION Respondents REASONS FOR JUDGMENT CORAM: Northrop, Fisher & Ryan JJ. April 1987 Fisher J.: On 28 January 1987 the respondent Ansett Transport Industries Limited ("Ansett") made application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") for an order of review of a decision of the appellant Rae Martin Taylor ("the Secretary"). The decision of which Ansett sought a review ("the decision") was alleged to have been made on or about 31 October 1986 under clause 6(1)(c) of the Airlines Agreement ("the Agreement"). This Agreement is contained in the schedule to the Airlines Agreement Act 1981 ("the Agreement Act"). The decision of the Secretary was that he was not satisfied that the services operated by East-West Airlines (Operations) Limited ("East-West") between Svdney and 2. Yulara and Yulara and Perth were not predominantly for use for the purpose of carriage of passengers over separate prescribed routes. Ansett sought a review of this decision on a number of the grounds referred to in sub.3.6(1) of the Act. On 2 February 1987 the Secretary filed, in accordance with 0 54 r 4 of the Rules of this Court, a notice of objection to competency of Ansett's application in the following terms: "Notice of Objection to Competency Take notice that the Respondent ("the Secretary") objects to the jurisdiction of the Court to try this application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 on the ground that the decision of the Respondent referred to in the first paragraph of the Application for an Order of Review herein was not a decision to which the said Act applies in that (a) it was not a decision of an administrative character and (db) it was not a decision made under an enactment within the meaning of the said Act." This procedure for objection is prescribed by the Rules of this Court and does not arise out of anv provision of the Act. However s.11 requires that applications to the Court shall be made as prescribed by Rules of Court. The Secretary's notice of objection refers to the jurisdiction of the Court. Section 8 of the Act states that jurisdiction as follows: "8. The Court has jurisdiction to hear and determine applications made to the Court under this Act." 3. Sub-section 5(1) of the Act provides that- "A person who is aggrieved by a decision to which this Act applies that is made after 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..." It is readily apparent that the only person who is entitled to obtain a review of a decision is a person who is "aggrieved by a decision to which this Act applies that is made after the commencement of this Act." In this matter the question in issue is whether the decision of the Secretary earlier referred to was a decision to which the Act applies. The phrase "decision to which this Act applies" is defined in sub.s.3(1) of the Act as follows: "...'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may he (whether in the exercise of a discretion or not) under an enactment, other than..." The Secretary by his notice of objection to competency contended that the application by Ansett was not competent in that the decision, a review of which was sought, was not of an administrative character and was not made under an enactment. "Enactment" is defined by sub.3.3(1), to the extent here relevant as follows: enactment' means - (a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self Government) Act 1978; (b) eee 4. (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, or (d) vee and for the purposes of paraqraph (a), (b) or (c), includes a part of an enactment;." The question whether the decision was a decision of an administrative character made under an enactment had previously been considered by Lockhart J. in an earlier application bv Ansett. On that earlier occasion Ansett (by letter of 4 November 1986) requested the Secretary to provide a statement of his reasons for the decision. Section 13 of the Act prescribes the procedure whereby an application to provide a statement of reasons may be made which is to the extent here relevant as follows: "13(1) 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. (2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request. (3) Where a person to whom a request is made under sub-section (1) is of the opinion that the person who made the request was not entitled to make the request, the first mentioned person may, within 28 days after receiving the request - (a) give to the second-mentioned person notice in writing of his opinion; or (b) apply to the Court under sub-section (4A) for an order declaring that the person who made the request was not entitled to make the request. 5. (4) Where a person gives a notice under sub-section (3), or applies to the Court under sub-section (4A), with respect to a request, the person is not required to comply with the request unless - (a) the Court, on an application under sub-section (4A), declares that the person who made the request was entitled to make the request; or (b) the person who gave the notice under sub-section (3) has applied to the Court under = sub-section (4A) for an order declaring that the person who made the request was not entitled to make the request and the Court refuses that application, and, in either of those cases the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the Court. (4A) the Court may, on the application of - (a) a person to whom a request is made under sub-section (1); or (b) a person who has received a notice under sub-section (3), make an order declaring that the person who made the request concerned was, or was not, entitled to make the request. (5) wee (10)... (11) In this section, 'decision to which this section applies' means a decision that is a decision to which this Act applies, but does not include - (a) eee (Bb) eae (¢e) oe" In these earlier proceedings the Secretary declined to furnish a statement pursuant to s.13, upon the ground that the decision was not a decision to which the Act applied, as it was not of an administrative character and was not made "under an enactment" within the meaning of that expression in sub.s.3(1) of the Act. By letter dated 13 March 1986 the Secretary declined, pursuant to sub.s.13(3) abovementioned, to provide reasons and gave a notice to that effect. On 12 December 1986 Ansett made an application pursuant to sub.s.13(4A) for a declaration that it was entitled to make a request under sub.s.13(1) in relation to the decision. At the conclusion of the hearing of this application Lockhart J. made on 23 December 1986 a declaration that Ansett was entitled to make the request pursuant to sub.s.13(1) in respect of the decision. In making this declaration Lockhart J. expressly found that the decision of the Secretary was a decision of an administrative character within the meaning of sub.s.3(1) of the Act. He also found that the Agreement, pursuant to which the decision was made, was an instrument within the meaning of sub.s.3(1) of the Act. Further he found that the Agreement was itself made under the Agreement Act. It followed that the decision was made under an enactment. The Secretary on 13 January 1987 appealed against this declaratory order but this appeal was discontinued on 23 February 1987. Thereafter the Secretary provided Ansett with his reasons in accordance with par.13(4)(b) of the Act. Returning to Ansett's subsequent application for an order of review of the Secretary's decision I have earlier stated 7. that on 2 February 1987 the Secretarv filed an objection to competency on the ground that the decision was not of an administrative character and not made under an enactment. This objection was heard on that day. Counsel for the Secretary formally adopted without repeating the submissions he had made on 23 December 1986 in support of his client's refusal to give reasons in accordance with s.13 of the Act. Lockhart J. overruled the notice of objection to competency in reliance upon the reasons which he had earlier given on 23 December 1986. On 19 February 1987 the Secretary lodged a Notice of Appeal against Lockhart J's decision to overrule the objection to competency, naming Ansett and Australian National Airlines Commission ("the Commission") as respondents to the appeal. The latter respondent had been added as an additional applicant in the proceedings subsequent to Ansett obtaining the order which was the subject of appeal. On the same date a notice of motion was filed seeking if necessary leave to appeal. On 11 March 1987 a solicitor in the employ of Ansett's solicitors swore an affidavit in the appeal proceedings wherein she deposed to the fact that on that day a letter had been delivered to the Australian Government Solicitor as solicitor for the Secretary. That letter advised that Ansett intended to contend at the hearing of the appeal or of any application for leave that Lockhart J's judgment of 23 December 1986 gave rise to an issue estoppel as between Ansett and the Secretary. This letter was in the following terms, namely - "Dear Mr. Hallowell, Rae Martin Taylor v. Ansett Transport Industries Ltd. and Anor (Federal Court Appeal) We refer to the above application for leave to appeal which are listed for hearing before the Full Court of the Federal Court in Melbourne on 13th March 1987 at 10.15 a.m. On 23rd December 1986 in proceeding no. G.586 of 1986 Mr. Justice Lockhart determined that the decision the subject of the proposed appeal was a decision of an administrative character made under an enactment within the meaning of s.3(1) of the Administrative Decisions (Judicial Review) Act 1977. On 23rd February 1987 your client discontinued his appeal from that judgment. Our client will contend at the hearing of the application for leave to appeal and the appeal (if leave is granted) that his Honour's judgment in proceeding no. G.586 of 1986 gives rise to an issue estoppel as between your client and it with respect to the issues that would be the subject of the proposed appeal. Yours faithfully" When the appeal came before this Full Court on 13 March 1987, leave to appeal was granted by a single judge but on the basis that the question whether there was an issue estoppel was reserved for determination of the Full Court. It is my opinion that it is appropriate to determine this question at the outset, as, if Ansett's contention is correct, the Secretary's appeal must be dismissed. Mr. Callaway of counsel for Ansett strongly contended that the circumstances of the two matters clearly raised an issue estoppel against the Secretary. His submission was that all the requirements for an issue estoppel were satisfied and cited in support the judqments of the High Court in Ramsay v Pigram (1968) 118 C.L.R. 271 espec. at p.276 and Blair v_Curran (1939) 62 9. C.L.R. 464 at p.494 and espec. per Dixon J. at 531-3. It was clear, he said that the declaratory judqment of Lockhart J. was a final judgment directly determining as between Ansett and the Secretary the two issues presently before the Court on appeal, namely that the decision was "of an administrative character" and "under an enactment". Counsel for the Secretary did not seriously dispute the contentions that the judgment was a final judgment which determined the relevant issue and, until a further hearing on 30 March 1987, that it was between the same parties. This latter issue was debated on the further hearing when leave was granted to him to reopen his case. However he strenuously contended that no issue estoppel arose in the present circumstances. In this regard he argued in essence that each of the two decisions of Lockhart J. was wrong and thus being given without jurisdiction could not found an estoppel. He summed up his submission when he said that the jurisdiction of the Court could not be enlarged by estoppel. In this manner he mounted a collateral attack upon the judgment of Lockhart J. of 23 December 1986 in circumstances where such an attack could not be launched directly. Such an attack has been "castigated as an abuse of process" in that it is "the initiation of proceedings ina court of justice for the purpose of a mounting of collateral attack upon a final decision against the intending plaintiff which has been made by another Court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made". (See Cross on Evidence 3rd Edit. page 141 and Hunter v. Chief Constable [1982] 10. A.C. 529 at 541). In the matter before us this dicta is applicable, with the substitution of "appellant" for "intending plaintiff". The starting point of counsel's contention was not in dispute, namely that this Court although a superior Court of record does not have any general jurisdiction. It has only the jurisdiction vested in it by Statute (s.19 Federal Court Act 1976). In this instance s.8 of the Act vested jurisdiction in the Court in the following terms as earlier mentioned, namely to hear and determine applications made under the Act. The applications which the Court has jurisdiction to hear and determine are to be found in sub.ss.5(1), 6(1), 7(1) and 13(4A) of the Act. The first judgment of Lockhart J. determined an application under sub.s.13(4A) and the order of 2 February 1987 determined, in an application under sub.3.5(1), an objection to the competency of that application. Counsel's next proposition was that the jurisdiction of the Court to deal with any application depends upon the question whether the decision sought to be reviewed is a decision to which the Act applies, namely a decision of an administrative character under an enactment. If it is not such a decision the Court has no jurisdiction. Two comments must be made upon this submission. In the first instance the jurisdiction of the Court is expressly stated by s.8 of the Act as beinq "to hear and determine applications ll. made under the Act". It cannot be correctly said that the Court has no jurisdiction if the decision is not of the appropriate character for it is expressly given jurisdiction to determine the application . In determining the application it must determine entitlement to relief. It is more correct to say that the Court will, in appropriate circumstances, have jurisdiction to hear, determine and dismiss an application on the ground that it has no power to review the decision or grant relief because the decision is either not of an administrative character or not made under an enactment, or both. Equally the Court has no power to review or grant relief if, pursuant to sub.s.5(1), the applicant is not a person aggrieved or the decision was made prior to the commencement of the Act. Furthermore it has no such power if the decision is excluded from review by virtue of Schedule 1 of the Act. In addition on an application under sub.s.13(4A) the Court is not empowered to make the declaration sought if the decision is in this respect one excluded from the operation of 8.13 by virtue of Schedule 2 or paras.13(11)(a)(b) or (c). An incorrect decision on any of these matters is not a decision beyond jfurisdiction but an incorrect decision on a condition precedent to the exercise of the Court's powers under the Act. The decision of 23 December 1986 may ex hypothesi be wrong but the fact that it was wrong does not mean it was made without jurisdiction. As Dixon J. (as he then was) said in Parisienne Basket Shoes Ltd.v. Whyte (1938) 59 C.L.R. 369 at 389: "... the clear distinction must be maintained between want of jurisdiction and the manner of its exercise. 12. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judqment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable (Cp. The Case _ of the Marshalsea) 77 E.R. 1027 at pages 1038-1041)." Counsel for the Secretary relied upon certain authorities to support his submissions on this aspect of the case. He cited Dutton v. Sneyd £19201 1 K.B. 414 which however was not a case of estoppel by record, whether res judicata or issue estoppel, but a case of estoppel by conduct. As Warrington L.J. said on p.417 arguendo. "If you rest your case on estoppel you will have to prove a representation on the part of the respondents and that the applicant acted upon it to his detriment". His general statement on pages 419-420 must be viewed in this context when he said: "The operation of the Act is confined to a certain class of cases, and it seems to me that the parties cannot by any form of estoppel or by agreement so enlarge the operation of the Act as to bring within it other cases, or to extend the limited statutory jurisdiction to those caes." Counsel also cited Commissioner of Inland Revenue v. Smeath £19321 2 K.B. 362 where the plea of res judicata was raised in a revenue case. However authority has placed revenue cases in a separate and anomalous category. (Commissioner of Taxation v. Phillips (1917) 17 S.R. (N.S.W.) 641). Romer L.J. made this point in Sneath's case at page 391: "But the only thing that the Commissioners have jurisdiction to decide directly and asa substantive matter is the amount of the taxpayer's income for the 13. year in question . This being so, their decision upon any incidental question of fact or law, however necessary it may be for the purpose of ascertaining the income for the year of assessment, cannot, as it seems to me, be conclusive in reference to the ascertainment of the taxpayer's income for any subsequent year of assessment with which the Commissioners have nothing to do, and in respect of which a fresh estimate will have to be made when the time comes, and possibly by other Special Commissioners." Counsel's third authority was Ex parte The Amalqamated Engineering Union (Australian Section); Re Jackson & Anor.(1937) 38 S.R. (N.S.W.) 13. This concerned a plea of res judicata based on the decision of a Magistrate sitting for the purposes of the Small Debts Recovery Act as a Court of Petty Sessions. In this case Jordan C.J. examined the application of the doctrine of res judicata with reference to decisions of inferior Courts. The decision itself cannot be decisively applied to the facts of this matter although at p.19 there is avaluable discussion of the distinction between superior Courts and subordinate tribunals exercising a special jurisdiction. The Chief Justice said: "But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that 'nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so': Peacock v. Bell 1 Williams Saunders 73 at 74. But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal: In re Graydon; Ex parte Official Receiver [£1896] 1 Q.B. 417; MHoystead v. Commissioner of Taxation £1926] A.C. 155 at 167.8. Where, however, a special jurisdiction is conferred upon a_e subordinate tribunal to decide some one 14. particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as mav be necessary for the exercise of the jurisdiction 30 conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, e.g. Wakefield Corporation v. Cooke (1904) A.C. 31, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction: Reg v. Hutchings 6 Q.B.D.300 at 304-5; Scott v. Lowe 86 L.T. 421; A.G. for Trinidad and Tobago v. Eriche . £18933 A.C. 518 at 522; Poulton v. Adjustable Cover and Boiler Block Co. £19083 2 Ch.430 at 433-4. In re Vitoria; Ex parte Vitoria £1894] 2 Q.B. 387; King v. Henderson £18983 A.C. 720 at 730; cf. Godwin v. Cashion 1 S.C.R. N.S. 165; Clisdell v. Gibney 4 S.R. 670." In my opinion these authorities do not assist the Secretary. In this present matter there is no limitation placed on the jurisdiction of the Court to "hear and determine" ail applications under the Act. Furthermore the decision of 23 December 1986 was not, as counsel for the Secretary contended, a decision relating to the establishment of jurisdiction. It was a decision upon the entitlement of Ansett to obtain from the Secretary reasons for his decision, which the Secretary had earlier refused because in his view the decision was not of an ' 15. administrative character under an enactment. In appropriate circumstances a decision on this contention can found an issue estoppel. Such circumstances are related by Jordan C.J. in the Amalgamated Engineering case supra at p.17, namely "Further, the estoppel is not restricted to judicial decisions appearing on the face of any formal record of the order of the tribunal. It extends to any matters in fact raised and judicially decided for the purpose of arriving at the decision: Rentit Ltd. v. Duffield €1937] 3 All E.R. 117 and also to any matters necessary to be determined in order to found the decision, provided always that the tribunal has jurisdiction to determine these matters for all purposes between the parties i.e., jurisdiction to determine them directly and immediately as well as merely incidentally. And it extends to any unqualified admissions by the parties upon which the decision is based: Hoystead v. Commissioner of Taxation C1926] A.C. 155. If particular relief is claimed on the basis of the existence of a right, and the claim is rejected on the ground that the right does not exist, an estoppel arises as to the existence of the right, not merely as to the particular relief: Long v. Gowlett £19231 2 Ch. 177 at 193-4; cf. Priestman v. Thomas 9 P.D. 210." In my opinion the earlier decision of Lockhart J. can properly found a plea of issue estoppel in this matter. The issue which must be determined, as a preliminary to the exercise of the power to review, is exactly the same as that decided by him earlier when he considered the obligation to provide a statement of reasons. The fact that that decision was subject to appeal at the time of the later decision is nothing to the point. As the authors of Halsbury Laws of England 4th Edit. Vol.16 state in paragraph 1518 - "A judgment which purports finally to determine rights is none the less effective for the purpose of creating an estoppel because it is liable to be reversed on appeal or because an appeal is pending..." In one of the authorities cited in support of this proposition, namely Marchioness of Huntly v. Gaskell £19053 2Ch.656 in which . 16. an appeal was pending Cozens-Hardy L.J. said on page 667: "A judgment is, in my opinion, not the less an estoppel between the parties because it may be reversed on appeal to the House of Lords." Furthermore the fact that the plea of issue estoppel was not raised on 2 February 1987 nor subsequently pleaded formally is not fatal. The happenings on that date must be seen in the light of the fact that an appeal was pending and it was understandably desired to keep the issue open in the review proceedings if the appeal was successful. Likewise failure to plead issue estoppel is only relevant if there was an opportunity to do so. See per Jordan C.J. in the Amalgamated Engineering case supra at page 17. It is significant that in the present matter there was no opportunity to plead the estoppel formally and that nevertheless the Secretary as appellant was prior to the hearing of the appeal formally advised by letter that Ansett proposed to take the point. It was my view that at this stage of the proceedings Ansett had established that it was entitled to rely upon the plea of estoppel and that on this score the appeal should be dismissed. As this however appears to be one of the first occasions upon which this Court has had to consider whether issue estoppel can be relied upon in applications for judicial review, it is appropriate to refer to the decision of the Queens Bench Division in Rv. Secretary of State for the Environment, Ex parte Hackney London Borough Council and Another £19831 3 All E.R. 358. In , 17. that matter May L.J. delivered with the concurrence of McNeill J. the reasons for the decision of the Court that the doctrine had no relevance to such applications. It is however my opinion that the reasoning of that Court can be distinguished on a number of grounds. At page 367 May L.J. said: "We respectfully think that similar considerations apply to proceedings for judicial review. In such proceedings, there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the 'first' application will have decided. Moreover, we do not think that there is in proceedings brought under RSC Ord 53 any true lis between the Crown, in whose name the proceedings are brought (and we venture a reservation about whether or not issue estoppel could operate against the Crown), and the respondent or between the ex parte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision: the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute. We respectfully adopt a passage from H W R Wade Administrative Law (Sth edn, 1982) p.246: ',..in these procedures the court "is not finally determining the validity of the tribunal's order as between the parties themselves" but "is merely deciding whether there has been a plain excess of jurisdiction or not". They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata. But the court may refuse to entertain questions which were or could have been litigated in earlier proceedings, when this would be an abuse of legal process; and in the case of habeas corpus there is a statutory bar against repeated applications made on the game grounds.' We also quote a short passage from de Smith's Judicial Review of Administrative Action (4th edn, 1980) p.108: 'It is difficult not to conclude that the concept of res judicata in administrative law is so nebulous as to occlude rather than clarify practical issues, and that it should be used as little as possible.' " 18. The principle that relief under RSC Ord 53 is granted in discretion only, as well as the obligation to obtain leave from the court before an application for relief can be made, seems to us to be contrary to the concept of a final determination of an issue between parties which is at the root of issue estoppel. The court, under this jurisdiction, is fully able to give effect to the rule of public policy that there should be finality in litigation, which underlies the doctrines of issue estoppel in civil litigation and the prohibition against double jeopardy in criminal prosecution, by the use of its powers to refuse to entertain applications and to refuse to grant relief in the process of judicial review of administrative acts or omissions; this is particularly but not exclusively so when the application may be oppressive, vexatious or an abuse of the process of the court." In this country the Court's jurisdiction flows from the provisions of the Act and not Rules of Court. Furthermore, even though the granting of ultimate relief may be discretionary, the power of the Court to hear an application is expressly confined to the specific circumstances laid down by s.5, namely in favour of a person aggrieved by a decision of an administrative character under an enactment made subsequent to the commencement of the Act. In respect of these matters at least it is not difficult, and certainly not impossible, "to identify a particular issue which the 'first' application will have decided". R v. Secretary of State supra in the passage cited. Furthermore it was not disputed that the first decision in this Matter was a final decision. Finally the fact that Order 53 of the Rules of Court in England requires the applicant to obtain leave before an application can be made enables the Court there to give effect to the rule of public policy which underlies the doctrine of issue estoppel. These are substantial differences, which in my view justify the conclusion that in appropriate circumstances the doctrine of issue estoppel can have application . 19. in this country in the area of judicial review. However subsequently the Secretary. having improperly in my view forwarded further submissions in writing to the Court without leave of the Court or consent of Ansett, obtained leave to reopen the hearing. Such leave was granted with the rider that the Secretary must pay to Ansett in any event its costs occasioned by the reopening. On the further hearing counsel for the Secretary contended that the plea of issue estoppel was not available to Ansett because the parties to the appeal were not the same as the parties to the declaratory decision of Lockhart J. of 23 December 1986. On the latter occasion Ansett alone had sought a declaration of its entitlement to reasons naming the Secretary as respondent. Likewise on 28 January 1987 in matter No. G25 Ansett made application for an order of review of the decision of the Secretary. Again Ansett was the only applicant and the Secretary the only respondent. Such was the state of the parties on 2 February 1987 when Lockhart J. overruled the notice of objection to competency of the Secretary in reliance upon his earlier reasons and ordered that the costs of the objection to competency be paid by the Secretary. Immediately thereafter the transcript recorded that Mr. Fajgenbaum Q.C. on behalf of the Commission made the following application: "Now that your Honour has disposed of that objection and made the order, might I seek leave to be joined as an applicant, together with Ansett?" Upon no party objecting, Lockhart J. directed that the Commission be added as an additional applicant to proceeding G25 of 1987. ri 20. Immediately thereafter Mr. Conti Q.C. for East-West sought leave to be joined as a respondent. The circumstances which warranted joining East-West, which was not a party to the agreement scheduled to the Agreement Act, were not before us but we were informed that East-West was added as a respondent to Ansett's application. When the Secretary lodged his notice of appeal against the judgment of Lockhart J. overruling the notice of objection to competency and also a notice of motion seeking, if necessary, leave to appeal, the Commission was named as respondent to the notices together with Ansett. East-West was not a party to these notices, on either side of the record. Further I note, but place no reliance in relation to this matter, that by letter dated 11 March 1987, the solicitors for the Commission advised the Australian Government Solicitor that the Commission did not wish to be heard on the appeal. The Commission was not on any occasion represented on the hearing before us. Counsel for the Secretary contended that an estoppel could not now be relied upon by Ansett as the parties were not the same as they were in proceedings G586 of 1986. As there were now two respondents to the appeal, Ansett was not entitled to raise the plea of issue estoppel in reliance upon a decision in proceedings in which it was the only applicant. In my opinion however the plea of issue estoppel remains ry 21. available to Ansett, it being nothing to the point that the Secretary has joined the Commission as a further respondent to its appeal. Of course the Commission doubtless has an interest in the favourable decision obtained by Ansett on 23 December 1986 as has yet another party to the proceedings, East-West. However neither was involved either inthe earlier proceedings on 23 December 1986 or when in subsequent proceedings Ansett obtained another favourable decision. If the decisions had gone the other way, neither would be bound and likewise neither can procedurally take advantage of the favourable decisions. This being a question of issue estoppel, the essential matter is to ascertain, in my opinion, the identity of the parties to the issue and not the proceedings. It is only the parties to the issue who can raise or have raised against them the doctrine of issue estoppel. In my opinion this is made clear by references in textbooks and also by the reasoning of Lord Wilberforce in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No.2) £1967] 1 A.C.853. In Cross supra at page 124 the authors say: "It is a requirement of both res judicata and issue estoppel that there be identity of parties. This will usually be satisfied by an examination of the respective records to determine who actually is a party to each of the proceedings, although as we shall see in considering Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No.2) it will sometimes be necessary to look beyond the title to an action to identify against which person relief is in fact sought." Lord Wilberforce was in dissent in Carl Zeiss Stiftung supra, being in agreement with the decision of the Court of Appeal. However his dissent was based on his view that there was in reality identity of the relevant parties in the two sets of bd 22. proceedings. It is also pertinent to note in passing that there were 3 individual co-defendants before the Federal High Court of Germany and 2 corporate co-defendants before the Courts of England, none of whom appeared in the proceedings in the other country. Despite the existence of these parties Lord Reid and Lord Upjohn, having disposed of the question of identity of parties on different grounds, considered obiter the application of issue estoppel but for those grounds. Lord Reid said at p.912: ",.. if these solicitors were bringing this action on account of or for the benefit of the Council of Gera, I would hold that res judicata could be pleaded against then. " Lord Upjohn said at p. 949: "In conclusion upon the estoppel point, even if I had reached a contrary conclusion as between the third respondents and the solicitors, I should require much persuasion that the first and second respondents who are alleged to be passing off the goods of the third respondents as and for the goods of the Stiftung and thus committing independent torts in this country, are entitled to the benefit of the alleged estoppel..." In seeking to determine the identity of the parties for the purpose of the doctrine of issue estoppel, the matter upon which he was in dissent, it can be said with respect that Lord Wilberforce chose his language with care. He did not merely refer to "the parties to the proceedings" but rather to "the party against whom the estoppel is set up" and "the party against whom the estoppel is raised". Likewise the expression "the party é 23. entitled to the benefit of the estoppel" was used by Lord Upjohn. I refer to two passages of Lord Wilberforce's reasoning ag supporting my view that it is necessary to consider in the present matter which of the parties to the proceedings carries the benefit or the burden of an issue estoppel. At page 965 Lord Wilberforce said: "The fact that the pleadings and the evidence may be referred to, suggests that the task of the court in the subsequent proceeding must include that of satisfying itself that the party against whom the estoppel is set up did actually raise the critical issue, or possibly, though I do not think that this point has yet been decided, that he had a fair opportunity, or that he ought, to have raised it." At page 967 he said when dealing with the particular question before the Courts, namely whether a foreign decision can be the basis of an issue estoppel: "And I think that it would be right for a court in this country, when faced with a claim of issue estoppel arising out of foreign proceedings, to receive the claim with caution in circumstances where the party against whom the estoppel is raised might not have had occasion to raise the particular issue." Lord Guest also attached significance to the fact that parties bound by estoppel must have been involved in the resolution of the earlier decision. He said at page 934: "Within recent years the principle has developed so as to extend to what is now described as "issue estoppel", that is to say, where in a judicial proceeding between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam." ry 24. Lord Reid also differentiated between "parties to the proceedings" and "parties to the relevant issue" when he said on page 910: "Let me take first identity of parties. In this preliminary or interlocutory matter the issue is whether the nominal plaintiff is before the court at all. If it is decided in favour of the defendant, that establishes that the nominal plaintiff never was before the court. So I do not see how the nominal plaintiff, here the Stiftung, can be a party to that issue. And it is admitted that the Stiftung was not a party to the German proceedings. The defendants are of course parties-they raise the issue. But who is their opponent?" It seems clear to me that issue estoppel can only be raised by or applied against parties who were in "controversy" at the time when the issue was first determined, either in their favour or adversely to them. If a party was not involved in the litigation of that issue, either because it was not an issue between him and another party to the proceedings, or because he was not a party at all to the proceedings at the time of resolution, then he is not affected by nor can he raise an estoppel. Likewise his presence initially or subsequently can not affect the right of other parties to raise or rely upon issue estoppel as between themselves. If the contrary was the case, the public interest in not having the same matters relitigated could with ease be by-passed. The judgment of Fullagar J. in Jackson v. Goldsmith (1950) 81 C.L.R.446 at 464 et seq. illustrates the point. The original proceedings in which the issue was determined were in a District Court and between Jackson and Goldsmith. Subsequently 2 25. one White sued Jackson in the Supreme Court who in turn raised a third party claim against Goldsmith. Fullagar J. held that a plea of issue estoppel was properly raised as between Jackson and Goldsmith in the Supreme Court proceedings. Admittedly it was not White who sought to raise the plea, as it is not the Commission here, which seeks to raise the plea against the Secretary. However for the purpose of determining whether the parties are identical both the Commission in these proceedings and White in the proceedings before Fullagar J. are to be ignored as in each instance neither was "involved in the controversy". On the substantive questions raised on the appeal, namely whether the decision was of an administrative character and made under an enactment I am in complete agreement with the reasons of Ryan J. In my opinion the Secretary's appeal must be dismissed, with costs. I certify that this and the 2preceding pages are a true copy of the Reasons for Judgment of Mr Justice Fisher. Associate oe oe Dated: UF ~F-19PPD IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 68 of 1987 GENERAL DIVISION On Appeal from the Federal Court of Australia Between: RAE MARTIN TAYLOR (who brings this appeal and who was sued in his capacity as Secretary of the Department of Aviation) (Appellant) And: ANSETT TRANSPORT INDUSTRIES LIMITED and AUSTRALIAN NATIONAL AIRLINES COMMISSION (Respondents) Coram: Northrop, Fisher and Ryan JJ. Date: 13 April 1987 Place: Melbourne REASONS FOR JUDGMENT RYAN J.: This is an appeal against an interlocutory order made by Lockhart J. on 2 February 1987. The appeal is brought pursuant to leave granted by Northrop J immediately before the hearing of the appeal commenced on 13 March 1987. The appeal raises the question of whether a decision made by the appellant, Rae Martin Taylor, as Secretary of the Department of Aviation, as contemplated by cl.6(1)(c) of the Agreement embodied in the Schedule to the Airlines Agreement Act 1981 ("the Agreement") is reviewable under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The decision in question was made on or about 31 October 1986 when the appellant decided that he was not satisfied for the purposes of paragraph 6(1)(c) of the Agreement that the services operated by East-West Airlines (Operations) Limited ("East-West") between Sydney/Yulara and Melbourne/Perth were not predominantly for the purpose of carriage of passengers over those separate routes. The farst-named respondent, Ansett Transport Industries Limited ("Ansett"), pursuant to 3.13 of the ADJR Act requested the appellant to furnish a statement of his findings on the material questions of fact by referring to the evidence or other material on which those findings were based and also to give reasons for his decision. The appellant pursuant to s.13(3)(a) of the ADJR Act declined to comply with that request on the ground that his decision under cl.6(1)(c) of the Agreement was not a decision to which the ADJR Act applied because it was not made "under an enactment" within the meaning of s.3(1) of that Act. Ansett pursuant to s.13(4A) of the ADJR Act thereupon claimed by Application G586 of 1986 dated 12 December 1986 a declaration that it was entitled to make a request pursuant to s.13(1) of the ADJR Act in relation to the appellant's decision made on or about 31 October 1986. Lockhart J. by order made on 23 December 1986 made such a declaration and delivered a judgment setting out his reasons for that order. On 13 January 1987 the appellant filed a notice of appeal against that judgment. Those appeal proceedings were allocated the number Gll of 1987. For some reason which is unclear to me, the appellant, on 19 January 1987, furnished a statement pursuant to s.13 of the ADJR Act in respect of his decision of 31 October 1986, and on 23 February 1987 filed a notice of discontinuance of his appeal, Gll of 1987. In the meantime, on 21 January 1987, Ansett had filed an application, G25 of 1987 for an order of review under the ADJR Act of the appellant's decision of 31 October 1987. In those proceedings the appellant on 2 February 1987 filed a notice of objection to competency contending that his decision of 31 October was not of an administrative character and was not made under an enactment within the meaning of the ADJR Act. On 2 February 1987 the objection to competency came on for hearing before Lockhart J. when counsel for the present appellant adopted, without adding to them, the submissions which had been rejected by his Honour in giving judgment in G5S86 of 1986 on 23 December 1986. Accordingly, his Honour on 2 February 1987 overruled the objection to competency and it is against that order that the present appeal 15 brought. Clause 6 of the Agreement set forth in the Schedule to the Airlines Agreement Act 1981 is in the following terms: "6.(1)(a) The parties shall take all reasonable action within their powers to ensure that the Commission and the Company are the only two operators which provide scheduled domestic passenger air services over trunk routes within Australia. (b) Subject to paragraph (c) of this sub-clause nothing in sub-clause (1)(a) shall prevent other operators from providing scheduled passenger air services over a prescribed route or successive prescribed routes. (c) Where any successive prescribed routes have the effect of linking two trunk route centres that are for the time being trunk route centres for the purposes of sub-clause (lye), sub-clause (1) ¢b) applies unless the Secretary is satisfied that such scheduled passenger air services are not predominantly for use for the purpose of the carriage of passengers over separate prescribed routes and are to a significant extent used or to be used for the purpose of carriage of passengers between two centres that are for the time being trunk route centres for the purposes of sub-clause (1)(e). (da) Without derogating from the objectives of sub-clause (1)(a), the parties acknowledge that nothing in this agreement shall preclude the Commonwealth, the Minister or the Secretary from permitting a passenger operator to develop specialised scheduled passenger air services over trunk routes of a nature which in the opinion of the Minister are not adequately provided for either by the Commission or the Company and for which after receiving a request in writing from the Minister neither the Commission nor the Company has, within a reasonable time, provided a service to the satisfaction of the Minister. (e) For the purposes of this agreement a trunk (2) route is a route linking any two trunk route centres. A trunk route centre shall be any one of the following: Adelaide, Alice Springs, Brisbane, Cairns, Canberra, Coolangatta, Darwin, Gove, Hobart, Launceston, Mackay, Melbourne, Mount Isa, Perth, Proserpine, Rockhampton, Sydney, Townsville and such other centres as the parties hereto shall agree from time to time. (a) For the purposes of this agreement a prescribed route is - (i) (a) (b) (c) (d) (ii) (b) a route: between a place in a State and another place in that State; between a place in a Territory and another place in that Territory; between a regional centre and another place in Australia; or over which the Minister has requested in writing the Commission and the Company to provide a passenger air service and neither the Commission nor the Company has within a reasonable time after the making of that request provided that service to the satisfaction of the Minister; or a route, other than a route referred to in sub-clause 2(a)(i)} over which an operator, other than the Commission or the Company, operated a scheduled passenger air service on 1 July 1980, regardless of whether it was the sole operator of scheduled air passenger services over that route. For the purpose of this agreement a regional centre is a place within Australia which is not for the time being a trunk route centre for the purposes of sub-clause (1)(e)." The routes Sydney/Yulara in the Northern Territory, and Yulara/Perth are each prescribed routes within the meaning of cl.6(1)(b) of the Agreement, see cl.6(2)(a) and (b) and together constitute successive prescribed routes under cl.6 in that they have the effect of linking two trunk route centres, namely, Sydney and Perth. Section 3(1) of the ADJR Act contains the following definition: "'decision to which this Act applies' means a decision of an administrative 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 sub-section "enactment" is defined to mean: "(a) an Act other than the Comonwealth 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 (da) a law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with s.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;". Lockhart J., in his reasons for judgment delivered on 23 December 1986 concluded that the decision of the appellant of 31 October 1986 was a decision of an administrative character made in pursuance of, or under the authority of, the agreement. The Agreement, in turn, his Honour held, is an "instrument" within the meaning of s.3(1) of the ADJR Act, and was itself made under the Airlines Agreement Act 1981. Accordingly, his Honour found it unnecessary to consider any of the alternative bases on which Counsel for Ansett contended that the decision was reviewable under the ADJR Act. Before this Court, Mr. Douglas Graham Q.C., for the appellant contended first that the agreement is a contract not deriving any force or effect from a statute. Clearly the fact that the agreement is expressed by cl.(1) to have no force or effect and not to be binding on any party unless it is approved by the Parliament of the Commonwealth does not mean that the Act itself imposes on the Commonwealth or either of the other parties to the Agreement any obligation additional to, or different in kind from, the obligations imposed by the Agreement itself. (See e.g. Placer Development Ltd. v.. The Commonwealth (1969) 121 CLR 353 at 357) Nor does statutory approval of an agreement change the legal character of the transaction or convert the terms of the instrument embodying it into the provisions of a law: P.J. Magennis Pty. Ltd. v. The Commonwealth (1949) 80 CLR 382 at 410. However, those propositions do not entail the consequence that a decision contemplated by an agreement to which Parliament has signified its approval by annexing it as a schedule to an Act, can never be a decision "under an enactment" within the meaning of s.3(1) of the ADJR Act. In my opinion, whether a decision has that character falls to be answered in the light of a complex of matters, only one of which 13 the relation between an agreement which contemplates the making of such a decision and an Act of Parliament. Other relevant matters may include the person in whom the decision is reposed, any statutory or other office by reference to which that person is designated, and the actual or potential effects of the decision oon persons other than parties to the agreement. In the present case it is true that the Airlines Agreement Act 1981 makes no reference to the decision entrusted to the Secretary by cl.6(1)(c) of the Agreement. However, s.8 of the Act made an amendment to the Customs (Prohibited Imports) Requilations prohibiting the importation into Australia of an aircraft, airframe or aircraft engine without the permission in writing of the Secretary. The amended regulation goes on to provide that the Secretary in considering an application for permission to import an aircraft, airframe or aircraft engine shall have regard to the provisions of the Agreement. The obligation to procure the amendment contained in s.8 of the Airlines Agreement Act 1981 was expressly imposed on the Commonwealth by cl.8 of the Agreement. It is also significant that the Agreement requires' the decision to be made by the Secretary alone, and does not admit the possibility of its being made by any other person. By contrast, cl.7(6) of the Agreement allows the Airlines Commission and Ansett to agree on any arbitrator they choose for the arbitration of a dispute arising under cl.7(4). The Secretary is not himself a party to the Agreement, so any duty on him to make decisions of the kind contemplated by cl.6(1)(c) must either arise from an implied term of the Agreement that the Commonwealth would procure him to make decisions on the matters specified in cl.6(1)(c) as necessary from time to time, or be imposed by implication from the terms of the Airlines Aqreement Act 1981 and the legislative scheme of which it forms part. I adopt, with respect, the interpretation given to the phrase "under an enactment" by Bowen C.J. and Lockhart J. in Australian National University v. Burns (1982) 64 FLR 166 where their Honours observed, at 173: ll. "It may also be correct that the exclusion of the decisions mentioned in par.(k) supports the argument that decisions by a statutory authority in exercise of the general powers conferred on it are decisions made 'under an enactment' for the purposes of the Judicial Review Act notwith- standing that they are also decisions under contracts. We do not find it necessary to decide these questions because we accept the correctness of the proposition that the game decision may be made both under a contract and 'under an enactment' for the purposes of the Judicial Review Act. The difficulty lies, not with the acceptance of that proposition, but in deciding whether it applies ina particular case. This must depend on the circumstances of each case." Another expression of the way in which particular circumstances may require a distinction between some decisions under contracts which have a general statutory warrant and other decisions more directly founded on an enactment can be found in the separate judgment of Sheppard J. in Australian National University v. Burns (supra), at 183. His Honour there observed: "I emphasize that in the present case the decision to dismiss was made pursuant to the express power in that regard contained in the contract itself and only in the most indirect way pursuant to powers contained in the appellant's Act. The contract itself was, of course, made pursuant to that Act. Finally I wish to make it clear that my conclusion in this matter may have been different if there had been made a statute providing for dismissal or termination of employment. If there had been such a statute, depending upon its terms, there may have been a sound argument to the effect that the dismissal was under such statute and thus under an enactment. That could never have been so whether the decision, strictly speaking, was made under a contract which imported the provisions of the statute, or whether it was made pursuant to the statute 12. alone. The position may then have been no different from that which exists in cases under public service employment legislation which usually contains express provisions dealing with the circumstances in which a variety of public servants may be appointed, promoted, disciplined and dismissed. Although such employees have contracts of service with the Commonwealth or with a particular statutory authority, which contracts may import the provisions of the relevant enactment, one would still conclude, as has been done in many cases, that challenged decisions were made under the enactment as well as under the contract and were thus open to review under the Act." In my view, the context in which the making of a decision contemplated by cl.6{1)(c) of the Agreement is entrusted to the Secretary, immediately or naturally suggests that the Airlines Agreement Act 1981 is the source of the power to make the decision. The circumstances of this case are thus clearly distinguishable from others, like those examined in Australian National University v. Burns (supra), where the connexion between the decision and the enactment under which it is said to be made is much less apparent. Having taken the view which I have, that the connexion between the decision and the Airlines Agreement Act is sufficiently close, it is strictly unnecessary to determine whether a link in that connexion was provided by the Agreement as an "instrument" made under that Act within the meaning of paragraph (c) of the definition of "enactment" in s.3(1) of the ADJR Act. However, I consider, with respect, that Lockhart J. was correct in concluding that the Agreement was itself made under the Airlines Aqreement Act 1981. Mr. Graham did not contend that the fact that the Agreement was 13. executed before the Airlines Agreement Act 1981 came into operation, precluded the consequence that the Agreement was made "under", or "in pursuance or under the authority of" that Act. Rather, he relied on the proposition that the Agreement is self-contained as far as concerns its legal force and effect, as negating the conclusion that it has been made pursuant to, or under the authority of the Airlines Agreement Act 1981. Since I have already indicated that acceptance of the principles enunciated in cases such as P.J. Magennis Pty. Ltd. v. The Commonwealth (supra) and Placer Development Ltd. v. The Commonwealth (supra) does not entail that result, it follows that whether an agreement annexed to an Act for the purpose of signifying Parliamentary approval of its terms is an instrument made "under" that Act is to be determined on an examination of the agreement and the Act in the light of all relevant circumstances. For the reasons outlined above, I am persuaded that the Agreement can be said to have been made "under" the Airlines Aqreement Act 1981, as that word is used in para (c) of the definition of "enactment" in s.3(1) of the ADJR Act. Mr. Graham did not advance any separate argument that a decision of the Secretary under cl.6(1)(c) of the Agreement was not a decision of an administrative character within the definition of "decision to which this Act applies" in s.3(1) of the ADJR Act. He was content, as I understood him, to argue that, whether or not the decision might be 14. characterized in the context of the Agreement, as "administrative", it was not made under an enactment. Since I have rejected that argument, it follows that I would dismiss the appeal. However, in deference to the careful and lucid arguments of counsel, including further argument permitted by leave on 30 March 1987, it is appropriate to make some short observations on the question of whether the appellant is precluded, by issue estoppel from contending on this appeal that the decision under cl.6(1)(c) of the Agreement is not reviewable. I have had the advantage of reading in draft the reasons for judgment of Fisher J. and I agree with his analysis of the authorities in this area, and the application of the doctrine of issue estoppel to applications under' the ADJR Act. I would only add that it was the special facility afforded by s.13(4A) of the ADJR Act which enabled Ansett to obtain a final conclusion of its entitlement to make a request to the appellant to furnish a statement giving, amongst other things, the reasons for his decision made on or about 31 October 1986. The declaration made by Lockhart J. on 23 December 1986 embodied such a final conclusion. However, a mere ruling in the course of hearing an application for review under the ADJR Act that the decision 15. in question was made "under an enactment" within the definition of "decision to which this Act applies" in s.3(1), would not finally determine any entitlement of any party to the application. Lockhart J's decision of 2 February 1987 was, in that sense, not finally conclusive of any right, entitlement or cause of action of either Ansett or the appellant. Were it otherwise, a party to proceedings under the ADJR Act, would be constrained to appeal every decision given in the course of the hearing on some matter which was a pre-requisite to relief, in order to prevent an issue estoppel arising against him on the hearing of an appeal against the order disposing of the application. It may be that the absence of any final disposition of a claimed right, entitlement or course of action underlies the reluctance exhibited in R. v. Secretary of State for the Environment ex parte Hackney London Borough Council (€1983] 3 All ER 358 to which Fisher J. has referred, to accord issue estoppel an operation in judicial review of administrative acts on an application for one or other of the prerogative writs. At all events, I agree with Fisher J. that there are no sound reasons of policy or principle for denying to issue estoppel its full operation in respect of declarations made under s.13(4A) of the ADJR Act. I also agree in the order proposed by Fisher J. that the Secretary's appeal be dismissed with costs. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Ryan. Dated: "% " -99 7 >—— a Carer es rane 1 Associate Counsek for the appellant: Solicitors for the appellant: Counsel for the first respondent: Me. D. Graham Q.C. and Mc. R. McK. Robson Australian Government Solicitor Mr. J. D. Merralls 9.C., Mr. F.H. Callaway and Mr. C. M. Maxwell Solicitors for the first respondent: Arthur Robinson and Dates of Hearing: Hedderwicks 13, 30 March 1987