CATCHWORDS Judicial review - decision to grant legal aid to applicants for relief under the Trade Practices Act 1974 - previous proceedings for similar relief dismissed for want of prosecution - applicants for relief ordered to pay costs - applicants impecunious and costs unpaid - application for stay of second proceedings refused - whether Attorney-Gene¢gral bound to take into account the outstanding liability for costs in determining whether to grant legal aid - whether decision so unreasonable that no reasonable person could have made it - whether denial of procedural fairness. ° Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(a),(1)(e), 2(b) and (2)(g). Trade Practices Act 1974, s. 170 KEVIN R. WHELPTON & ASSOCIATES (AUST) PTY LIMITED and ANOR. v. THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA No. G535 of 1986 Coram: Sheppard J. Date : 16 April 1987 C Place: Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G535 of 1986 we ewe ws GENERAL DIVISION BETWEEN : KEVIN R. WHELPTON & ASSOCIATES 2 (AUST) PTY LIMITED and ANOR. Applicants AND: THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: SHEPPARD J. PLACE: SYDNEY DATE : 16 APRIL 1987 MINUTES OF ORDER THE COURT ORDERS THAT: - lL. The application be dismissed. 2. The applicants pay the respondent's costs of the application. 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. G535 of 1986 ) GENERAL DIVISION ) BETWEEN : KEVIN R. WHELPTON & ASSOCIATES (AUST) PTY LIMITED and ANOR. Applicants AND: THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALTA Respondent CORAM: SHEPPARD J. DATE : 16 APRIL 1987 REASONS FOR JUDGMENT HIS HONOUR: This is an application to have reviewed the decision of the Attorney-General to grant legal aid to aMr. Donald Cameron and a company which he controls, Camerons Unit Services Pty Limited, hereafter referred to as "the Camerons". Notice of this application was served on the Camerons but. although Mr. Cameron was in Court during the hearing, he said that he did not wish to take any part in the proceedings. The decision was made pursuant to s. 170 of the Trade Practices Act 1974 which is as follows:- "170 (1) A person- (a) who has instituted, or proposes to institute, a proceeding before the 2. Commission or the Tribunal, or a proceeding before the Court under Part VI or section 163A; (b) who is entitled to participate, or has been permitted to intervene, in a proceeding before the Commission or the Tribunal; or (c) against whom a proceeding before the Court has been instituted under Part VI or section 163A, May apply to the Attorney-General for a grant of assistance under this section in respect of the proceeding. (2) Where an application is made by a person under sub-section (1), the Attorney-General, or an officer of the Australian Public Service authorized in writing by the Attorney-General, may, if he is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney-General or officer determines, of such legal or financial assistance in relation to the proceeding as the Attorney-General or officer determines. (3) In this section- (a) a reference to a proceeding before the Commission is a reference to a proceeding - in relation to an application for, or in relation to the revocation of, an authorization; and - (b) a reference to a proceeding before the Tribunal is a reference to an application to the Tribunal for a declaration under sub-section 50A(1) or for a review of a determination, or of the giving of a notice, by the Commission". ~~ The applicants are aggrieved persons within the meaning of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") because they are respondents to proceedings instituted in this Court by the Camerons (application No. G345 of 1986 filed in the New South Wales Registry). Those proceedings are not the only proceedings to have been commenced by the 3. Camerons against the applicants. Proceedings claiming similar relief were instituted in 1984 (application No. G276 of 1984). Those proceedings involved the applicants in substantial legal costs. On 18 July 1985, Wilcox J. ordered that the application in matter No. G276 of 1984 be dismissed for want of prosecution, but the order provided that the dismissal was to "be without prejudice to any rights" of the Camerons "to bring fresh proceedings or to claim the same relief in fresh proceedings". His Honour ordered the Camerons to pay the applicants' costs of the application and of the cross clain. These costs were eventually taxed and allowed at the sum of $21,158.55, but the certificate of taxation did not become available until 20 February 1987. The amount of the costs has not been paid. The proceedings No. G345 of 1986 were commenced on 18 August 1986. In them the Camerons claim substantially the same relief as was claimed in the proceedings No. G276 of 1986. The applicants have recovered judgment against the Cameron company in the District Court of New South Wales for the sum of $21,560.80. On 17 July 1986, a summons to wind up the company was filed in the Supreme Court of New South Wales on behalf of the applicants. On 9 September 1986, a motion was filed in the Supreme Court on behalf of the company seeking a stay of the winding-up proceedings. The application for a stay was heard on 16 September 1986 and judgment was reserved. On 29 September 1986, the Supreme Court made an order staying the winding-up proceedings pending the determination of the proceedings No. G345 of 1986 by this Court. 4. In the meantime Burchett J., on 19 September 1986, heard argument on application for a stay of the proceedings No. G345 of 1986 and for an order that the applicants in that matter provide security for costs. The ground of the application was in part the outstanding order for costs made in the applicants' favour in the proceedings No. G276 of 1984, The costs had not then been taxed. On 24 September 1986 Burchett J. dismissed both applications. The principal relief sought in the proceedings No. G345 of 1986, is relief against the present applicants in respect of alleged contraventions of ss. 52 and 53 of the Trade Practices Act. The Camerons also sue the applicants for breach of contract, fraudulent misrepresentation and for other causes of action to which it is ummecessary to refer. The amount involved in the claim is some $85,000, although this amount may be greater, in the event that the Camerons should succeed, because of a claim for damages for consequential losses which they allege they suffered by reason of the destruction of what they claim to have been a flourishing business. All these matters are in issue between the parties and will not be resolved until the principal application is heard. In passing it may be noted that the file in matter No. G345 of 1986 is now almost as bulky as that in respect of the earlier proceedings, No. G276 of 1984. Much of this bulk comprises interrogatories and the answers thereto. I think it is unfortunate that the interrogatories filed in the earlier proceedings and the answers made to them were not used in the 5. later proceedings. There may have been good reason for this, but on. the face of the two files there appears to have been a substantial amount of unnecessary duplication which an appropriate directions hearing should have avoided. The solicitor for the applicants first became aware that the Camerons had been granted legal assistance pursuant to the provisions of s. 170 of the Trade Practices Act on 18 August 1986. Their solicitor at all material times has been Mr. M.G. O'Brien. In an affidavit filed in this application he said that, prior to 29 September 1986, the date of the order for the stay of the winding-up proceedings, he had not taken steps to challenge the grant of legal assistance to the Camerons because he believed that, either the proceedings to wind up the Cameron company would be successful, or the application for a stay of the application No. G345 of 1986 in this Court would succeed. He said that he awaited the outcome of both sets of proceedings before incurring further expenses on his clients behalf to challenge the grant of legal assistance. The purpose of this evidence is to meeta submission that the application for judicial review is out of time. The application in this matter was filed on 20 November 1986, some three months after the applicants' solicitor learnt of the decision to grant legal aid. Mr. O'Brien said that he was unable to arrange a conference with senior counsel until 17 October 1986. The conference had to be postponed to 28 October due to the unavailability of senior counsel, 6. On 21 October 1986 Mr. O'Brien telephoned a Mr. Wheeler at the Office of the Attorney-General in Canberra and told him that he was interested in obtaining information as to a grant of legal aid under s. 170 of the Trade Practices Act. Mr. Wheeler said that he would send Mr. O'Brien a pamphlet which outlined the guidelines for aid under the section. Shortly afterwards Mr. O'Brien received the pamphlet. I shall refer to the detail of it a little later. On 29 October 1986, Mr. O'Brien wrote to Mr. Wheeler referring to the grant of legal aidin this matter. He continued: - "Mr. Cameron and his company on their own evidence are insolvent and he commenced these proceedings only after obtaining a grant of aid from your Department.- Our clients are greatly prejudiced by your decision to grant legal aid to Mr. Cameron for two principal reasons:- i. If our clients are successful they have no prospects of recovering their costs from Mr. Cameron. 2. Mr. Cameron will continue the action regardless of his prospects of success knowing he has nothing to lose. Our clients are therefore entitled under Section 5 of the Administrative Decisions (Judicial Review) Act to apply for an order of review of your decision but prior to that we require you, pursuant to Section 13 of the said Act, to supply us with a statement in writing setting out the findings on the material questions of fact, referring to the evidence and other material on which those findings were based and giving the reasons for the decision to grant legal aid to Mr. Cameron and his company pursuant to Section 170 of the Trade Practices Act". On 31 October 1986, Mr. O'Brien ceased to practice with the 7. firm of which he had, up to that time, been a member. He commenced in practice with Messrs. Turnbull McWilliam, solicitors of Sydney on 17 November 1986. The applicants continued to retain him as their solicitor. On 18 November 1986 Mr. O'Brien wrote to Mr. Wheeler informing him of the change of firms. On 21 November 1986, Mr. Wheeler wrote to Messrs. Turnbull McWilliam in reply to Mr. O'Brien's letters of 29 October and 18 November. Mr. Wheeler said:- "Applications for financial assistance, which include applications under s. 170 Trade Practices Act, are dealt with ona confidential basis. Decisions have to take into account the financial and domestic circumstances of applicants and the nature and merits of their case. In order to make a proper determination it is necessary that absolute confidentiality exist between an applicant and the Department. Without such confidentiality in respect of information supplied and of the assessments of hardship and reasonableness that are made, the present administration of financial assistance schemes would not be possible. -- I consider therefore under s. 13A that I am not required to disclose the type of information that you seek", As mentioned, the application in the present proceedings was filed on 20 November 1986. The following day Mr. O'Brien wrote again to the Attorney-General saying that the application for an order of review related to a grant of legal aid to the Camerons pursuant to s.170 of the Trade Practices Act. Mr. O'Brien said that, pursuant to Order 54, rule 3 of the Rules of this Court, the applicants were obliged to serve with their application a statement of the terms of the decision, the subject of the 8. application. He said that he did not have a copy of the statement and asked that the Attorney let him have a copy or otherwise file a copy in the proceedings. Mr. Wheeler wrote on 23 December 1986 saying that the matter had been referred to the Australian Government Solicitor. At one stage it seemed that there would need to be argument concerning the Attorney-General's contention that this was a matter which fell within s. 13A of the Judicial Review Act, so that he was not required to produce certain documents and statements which the solicitor for the applicants had sought both by direct request and by the service of an appropriate subpoena on the Attorney-General. The need for this argument disappeared because the parties reached a sensible understanding which involved Mr. Wheeler making an affidavit and thus exposing himself to cross-examination. It emerged that Mr. Wheeler was the officer who had made the decision to grant legal aid, he being an authorized officer for this purpose. Before I come to Mr. Wheeler's affidavit and oral evidence. I should make reference to the pamphlet referred to in Mr. O'Brien's evidence. The pamphlet sets out the guidelines upon which the Attorney-General proceeds in dealing with applications under s. 170 of the Trade Practices Act. The guidelines apply, not only to trade practices cases, but also to cases arising under a number of other Acts. Guideline No. 4 provides that it is a condition of the exercise of discretion that the Attorney-General be satisfied in regard to hardship and reasonableness. It goes on to say that, if he is so satisfied, 9. the exercise of the discretion is unfettered and "accordingly, each case must be determined on its own merits and all relevant circumstances must be taken into account". The guidelines indicate what is meant by "hardship" and "reasonableness". In guideline No. 8 it is said that, in determining whether it is reasonable to provide assistance, regard is had, amongst other things, to the prospects of success, the nature and extent of the benefit or detriment that may accrue to the applicant, the availability of legal aid generally and the benefit to the public or any section of the public. The Attorney may decline to grant assistance if it is available from another source and there is no element of public interest in the proceedings. In his affidavit which was sworn on 24 February 1987 Mr. Wheeler said that he considered and decided to grant the application for financial assistance made by the Camerons. He said the application had been made by an application received in the Australian Legal Aid Office in April 1985. When Mr. Wheeler made the decision to grant assistance, he was aware of the orders made by Wilcox J. on 18 July 1985. He said that he considered that the Camerons' case had reasonable prospects of success and the fact that their earlier case had been dismissed for want of prosecution confirmed to him that they did not have adequate funds to continue the litigation. It may be noted at this point that, in the course of the hearing of the application to dismiss the proceedings No. G276 of 1984 for want of prosecution, Wilcox dg. was informed of the pending application for legal aid which 10. the Camerons had made. In his oral evidence Mr. Wheeler said that his decision to grant financial assistance was made on 7 July 1986. He was referred to the fact that Mr. O'Brien did not learn of the decision until 18 August 1986, and to the fact that the present application was filed on 20 November 1986. He was asked whether any moneys had been expended by the Commonwealth or in legal costs incurred by the Camerons in the conduct of the proceedings. He said that he authorized payment of just under $5,900 (in fact $5,886.70) on 20 November 1986. In the course of his cross examination Mr. Wheeler said that it was a term of the grant of legal aid in cases which were likely to have "a money result", that the applicant for legal aid refund all moneys paid out. He said the way that legal aid was granted was that the applicant was granted a sum which in effect he paid to his solicitor. The matter was dealt with in this way so that it would be clear that the applicant himself incurred the costs and was entitled to the henefit himself of any costs order made in the proceedings against the other party. Mr. Wheeler said that, if the Camerons were unsuccessful in the proceedings, the Attorney-General would not be obliged to meet any order for costs made against the Camerons in favour of the present applicants. He said that that was how the scheme provided for in s. 170 of the Trade Practices Act had always operated. Me. Wheeler confirmed that he was aware, when he made his decision, of Wilcox J.''s decision of 18 July 1985. He did not 11. remember reading a copy of his Honour's judgment, but he was aware that the earlier application had been dismissed for want of prosecution and that the Camerons had to pay the present applicants' costs of those proceedings. He said that he was not aware of the amount of those costs, but had subsequently learnt of the amount of the figure at which the costs had been taxed. Mr. Wheeler's evidence continued:- "Now, when you made your decision to grant aid to Mr. Cameron did you in the exercise of your decision-making processes, consider the financial cost to the Whelpton interests in the litigation? ---Only in the sense that I made several inquiries to see if Mr. Whelpton and his company were worth powder and shot. Would it be fair to say that you wanted to make sure that they had money to pay the verdict rather than how much money they were owed by Mr. Cameron? ---Yes. At the time that that decision was made you did not feel it necessary to make inquiries of either the Whelptons or the court to ascertain how much the taxed costs would be? ---Correct. I was concerned with the decision of Wilcox J., as to whether it purported to be a dismissal on the merits. When I knew it was not a dismissal on the merits I did not inquire further into it". Mr. Wheeler was referred to the words, "in all the circumstances", in s. 170 of the Trade Practices Act. He was asked whether he referred only to the Camerons' circumstances and not to the present applicants' circumstances. Mr. Wheeler's answer was, "other than whether they were worth suing, correct". Mr. Wheeler said that he thought no further about the applicants' position and considered that the reference to "hardship" in the guidelines was hardship imposed on the Camerons and not on the applicants. 12. Mr. Wheeler was asked questions about the payment of the amount of almost $6,000 towards the Camerons' costs. He said that if the decision to grant legal aid were set aside, he did not envisage that there would be any thought of recovery proceedings being instituted against the Camerons by the Attorney-General. Mr. Wheeler said that if his decision were set aside, the matter would be considered afresh. The Camerons would be invited to say What their then current financial circumstances were and, "because of Mr. Whelpton and his team's specific interest in the matter they would be invited to put in whatever they wanted to say about the financial implications plus their comments on the merits and state of the case". Mr. Wheeler was asked why that had not been done before. He said, "because in dealing with applications for assistance the application is looked at from the point of view of the applicant". There followed a lengthy discussion between Mr. Wheeler and myself concerning the appropriateness of this as a general rule. That discussion is not, I think, relevant for the outcome of this case, but it raises, in my opinion, serious questions about the administration of legal aid in the community, questions which are not infrequently discussed amongst judges because of their perception that Litigation in which one or more of the parties has legal aid sometimes involves very. lengthy hearings and a marked unwillingness on the part of legally aided parties to consider offers of settlement. - I come now to deal with the questions which arise for 13. decision in this application. The first question is whether the application was made within a reasonable time; see sub-sec. 11(4) of the Judicial Review Act. The case is not one for which there is a prescribed period within which an application for review is to be made; see sub-sec. 11(3). I do not think that the time taken, that is three months from the date when the applicants' solicitor became aware of the making of the decision is unduly long. Especially is that so when there is taken into account the various matters mentioned in Mr. O'Brien's evidence which [I accept. There is the matter of possible prejudice because of the payment of portion of the Camerons' costs on 20 November 1986. But the overall effect of Mr. Wheeler's evidence is that no prejudice would be suffered if the decision to grant legal aid were quashed. The sum would not be sought from the Camerons and would be written off. In any event, the matter, so far as the order of this Court is concerned, would be overcome by specifying, in the order of the Court, that the decision be quashed or set aside with effect from a date after 20 November 1986. That would protect the money already paid; see para. 16(1)(a) of the Judicial Review Act. In the resuit I am satisfied that the application was brought within a reasonable time and that I ought not to refuse to entertain it. I turn then to the matters of substance which are in issue. The principal submission made on behalf of the applicants is based upon paras. 5(1)(e) and (2)(b) of the Judicial Review Act. In short it was submitted that Mr. Wheeler had failed to take a 14. relevant consideration into account in arriving at his decision to grant legal aid. The relevant consideration relied upon consists of the following collection of circumstances viewed as a whole. The earlier proceedings were dismissed for want of prosecution and the costs ordered to be paid by the Camerons to the present applicants had not been paid or provided for. The amount of the costs was not ascertained at the time the decision was made, but it should have been clear to Mr. Wheeler that the amount would be substantial. The result is that, not only will the present applicants be unable to recover costs against the Camerons in these proceedings, in the event that the applicants are successful; they will remain unable to recover the costs which the Camerons have already been ordered to pay as well. They are thus in a substantially worse position than that usually faced by a party whose adversary is legally aided. They face the prospect, in the event of their being successful, of having to pay the entirety of their own costs, not in one proceeding but in two. The applicants contend that Mr. Wheeler was bound to take all those matters into account when reaching his decision. It is plain that he did not. In addition to submitting that they were entitled to relief on this basis, counsel for the applicants also submitted that the decision arrived at was one which was so unreasonable that no reasonable person could have so exercised his decision-making power; paras. 5(1)(e) and (2)(q) of the Judicial Review Act. In written submissions lodged on 10 March 1987, after I had reserved my decision, counsel for the applicants also relied on a breach of the rules of natural justice, really a failure to accord the 15. applicants procedural fairness, in that Mr. Wheeler had not sought the applicants' submissions on the application after he knew that the Camerons had failed to prosecute the earlier proceedings and had been ordered to pay the appllicants' costs of those proceedings; see para. 5(1)(a) of the Judicial Review Act. The circumstances in which a failure to take into account a relevant consideration may be successfully relied upon by an applicant for judicial review were the subject of recent discussion in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 60 A.L.d.R. 560. In summary, the applicable principles, in relation to a case such as this, are:- (a) The ground will only be made out if the decision-maker fails to take into account a consideration which he is bound by law to take into account in making the decision. (b) The factors a decision-maker is bound to consider are determined by the construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. (c) If the relevant factors (i.e. those the decision-maker is bound to consider) are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. ve 16. (d) The limited role of the Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrator by exercising the discretion which the legislature has vested in him. The above is a summary of some of the principles stated by Mason dg. (as he was) in the Peko-Wallisend case; see pp. 565-566. The relevant provisions of s. 170 of the Trade Practices Act empower the grant of legal aid if the Attorney-General, or an officer he has authorized in writing, is satisfied that it would involve hardship to the applicant to refuse the application, and that, in all the circumstances, it is reasonable that the application should be granted. Nothing arises in relation to the question of hardship. That matter is not in contest. What is submitted by counsel for the applicants, however, is that the words "in all the circumstances" required Mr. Wheeler to take into account the fact that earlier proceedings brought by the Camerons had been dismissed for want of prosecution and, most importantly, that the Camerons had been ordered to pay the present applicants' costs of then. In short, the submission which was made was that, unless' these matters were taken into account by Mr. Wheeler, he had not considered all the matters which he was required to consider in order to determine whether it was reasonable that the application should be granted, that is he had not considered "all the circumstances". In support of his submission, counsel for the applicants 17. relied upon the decision at first instance and in the Court of Appeal in England in Upsons Limited v. E. Robins Limited C1956] 1 Q.B. 131. That was not a case of the exercise of an administrative discretion but the exercise by a County Court Judge of jurisdiction under landlord and tennant legislation which empowered the Court to make an order for the grant of a new tenancy. The tenancy was required to be one which was determined by the Court "to be reasonable in all the circumstances". As I read the judgments in the Court of Appeal, they were concerned only with the question whether the Judge at first instance was empowered or entitled to take into account grounds of opposition advanced by the landlords in relation to the claim made by the Cenant as to the duration of the new tenancy. It is true that there is a passage in the judgment at first instance which refers to the Court being bound to take such a matter into account, but this was not a matter referred to in the Court of Appeal. For that reason, and also because the construction of a different statute is involved, I have not found the case helpful in the determination of the present problen. Mr. Wheeler, in the course of his evidence, made it clear that it was not the practice to consult, or to seek submissions from, the other party to litigation or projected litigation when an application for legal aid was made. It was to the circumstances of the applicant that regard alone was had. Mr. Wheeler referred to difficulties which would otherwise arise in relation to matters of confidence which are frequently communicated to the Attorney-General in relation to such an application. This case is not a case of that more usual kind. I 18. am not called upon to decide whether the Attorney's practice ina More usual situation is in accordance with what the section requires or not. What makes this case different is the termination of the earlier proceedings and the making of the order for costs which, in the events which have happened, the applicants will be unlikely to recover unless they are able to deduct the amount of their entitlement under the order from any amount which the Camerons may recover from them in proceedings No. G345 of 1986. As I have said, if the applicants are successful in defeating the Camerons' claim, they will not only fail to recover the costs awarded to them in the current proceedings, but also the costs already awarded to them in the former proceedings. So the question is whether this was a matter which Mr. Wheeler was bound to take into account because it was a circumstance falling within the words "in all the circumstances" in sub-sec. 170(2). I confess that I have not found the question free from difficulty. On the one hand, the application is made ex parte to the Attorney-General; notice of it is not required to be given to the other party to the proceedings. In those circumstances there is much to be said for the view that it is the circumstances of the applicant for legal aid to which the section refers. On the other hand, the expression which is used is a general one and the question which the Attorney-General has to decide is whether it is reasonable that the application should be granted, This in turn raises further questions. To whom, or in what interest, must the application be reasonable. Plainly enough it is necessary to consider whether to grant the 19. application would be reasonable or unreasonable from an applicant's point of view. Furthermore, the section being included in an Act, a major purpose of which is to protect the public interest, it would appear that the Attorney-General is required to consider whether it would be reasonable or unreasonable to grant the application from the point of view of the public interest. What the present applicants seek, however, is that the reasonableness or otherwise of granting the application be tested against their own circumstances, particularly the fact that they are unlikely to be paid the amount of the order for costs to the benefit of which they are entitled. There are some situations in which a decision-maker, upon whom is conferred a wide discretion, may decide what circumstances he will take into account, and what he will omit from account. This was a matter referred to by Deane J. (when a Judge of this Court) in his judgment at first instance in Sean Investments Pty Limited v. MacKellar (1981) 38 A.L.R. 363. Sean Investments was approved by the High Court in the Peko-Wallsend case. In relation to this matter his Honour said, in the context of the legislation there under consideration, that the particular considerations which were to be taken into account and the respective weight to be given to them was, to no small extent, a matter for the Permanent Head of the Department of Health and, on review, the Minister (pp. 373-4). His Honour also said that the presence of the ground in the Judicial Review Act did not mean that a party affected by a decision was entitled to make an exhaustive list of all the matters which the decision-maker might 20. conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account (p. 375). The legislation which Deane J. had to consider was s. 40AA of the National Health Act 1953. The relevant part of the section in its then form provided that the Permanent Head should, in determining the scale of fees in relation toa nursing home, have regard to "costs necessarily incurred in providing nursing home care in the nursing home", Plainly enough, this provision entitled the Permanent Head to take into account other matters relevant to the determination of a scale of fees, provided he did have regard to "costs necessarily incurred". Because of the difference in the legislation the decision in Sean Investments is not of direct help, but a consideration of it serves to underline the question which I think arises here for determination. Are the words, "in all the circumstances", intended to compel the decision-maker to take into account every conceivably relevant circumstance before he arrives at his decision: or are they intended rather to indicate that he is to have a very wide discretion so that he may have regard to some circumstances and disregard others, notwithstanding that it would be open to him to have regard to them if he wished. In other words, is it for the decision-maker to determine what circumstances he will take into account and what he will omit, or is he subject to the supervision of the Court in his selection of all of them. TI do not think that the answer to this question can be straight forward. Questions of degree become involved. T think the better view is that, in some cases, a circumstance will 21. be seen to have such a direct bearing on the outcome of the decision, that it will be something the decision-maker is bound by law to take into account. Other cases will not fall into that category. In such cases it will be for the decision-maker to reach his own conclusion on the relevance, not weight, to be attributed to the particular circumstances upon which a party has relied. He will be the judge of what is, and what is not, relevant. In my opinion, it is into this latter category that this case falls. The circumstances relied upon by the present applicants are a matter which Mr. Wheeler, if he had chosen to do so, could have taken into account; but they are not a matter which he was required to take into account. It was a matter for him whether he took them into account or not. It follows that I am of opinion that the applicants' first submission must fail. I do not regard this as acase in which Mr. Wheeler's decision was so unreasonable that the jurisdiction of the Court in this regard has been attracted. The second submission is, therefore, also rejected. - That leaves procedural fairness. I put aside the question whether there may not be circumstances in which the Attorney-General, or a person authorized by him, is bound to accord procedural fairness when dealing with an application under s. 170 of the Trade Practices Act. In this case Mr. Wheeler did not fail to accord the applicants procedural fairness because he drew no adverse conclusion against them. All he did was to determine that the Camerons had a reasonable chance of succeeding in their claim:and were in need of financial assistance to 22. prosecute it. He did not take the present applicants' circumstances into account nor consider their position at all in reaching his decision. That indeed is the principal complaint which the applicants make. In those circumstances the third submission must also fail. In the result the application is dismissed with costs. | certify that this and the 2) preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. f HTM Associata pata (6 STAIL (787 Counsel for applicant: Mr. D.L. Warren Solicitors for applicant: Turnbull McWilliam Counsel for respondent: Mr. G. Hosking Solicitors for respondent: Australian Government Solicitor Date of hearing: 24 February 1987