- 237 CATCHWORDS Crown - Administrative Decisions (Judicial Review) Act 1977 - Application to be made a party to application for review - Who is "a person interested in a decision". Administrative Decisions (Judicial Review) Act 1977 - s.12 ROBERT CLIVE FORDHAM and THE STATE OF VICTORIA v. GARETH EVANS AND ORS. No. VG628 of 1986 Jenkinson J. Melbourne 6 May, 1987 wavetoes © _ hl. COURT OF AUSTRALIA Pro lPAL AEGISIAY oy - 7 "oy V\L an IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 628 of 1986 GENERAL DIVISION ) BETWEEN: ROBERT CLIVE FORDHAM and THE STATE OF VICTORIA Applicants AND: GARETH EVANS AND ORS. Respondents MINUTES OF ORDER CORAM: Jenkinson J. PLACE: Melbourne DATE: 6 May, 1987 The Court Orders That: 1. Oil Basins Limited be added as a party respondent to the application. 2. The costs of each of Robert Clive Fordham, The State of Victoria, Gareth Evans and Oil Basins Limited of the motion of which notice was filed 17 March 1987 be that party's costs in the cause. 3. The costs of BHP Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc. of the said motion other than the costs of the affidavit of Denis Worrall sworn 18 March 1987 be their costs in the cause. The Court Orders By Consent That: 1. The applicants file and serve particulars of the grounds of the application numbered 1, 2 and 3 on or before 27 May 1987. 2. Each respondent file and serve on or before 24 June 1987 a statement in writing of the contentions upon which he or it relies in relation to the matters raised by the grounds of the application numbered 1, 2 and 3. 3. The application be placed in the list of cases to be called over in June 1987. Subject to any order of the judge before whom the application is fixed for hearing the questions raised by the grounds of the application numbered 1, 2 and 3 and the statements filed pursuant to the order contained in paragraph 2 of this order be decided before the hearing of any other question in this proceeding. The directions hearing be adjourned to a date to be fixed by any party on reasonable notice to the other parties. The costs of the parties of the directions hearing on 23 April 1987 be reserved. IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 628 of 1986 GENERAL DIVISION BETWEEN: ROBERT CLIVE FORDHAM and THE STATE OF VICTORIA Applicants AND: GARETH EVANS AND ORS. Respondents CORAM: Jenkinson J. PLACE: Melbourne DATE: 6 May, 1987 REASONS FOR JUDGMENT Motion by Oil Basins Limited for an order under s.12 of the Administrative Decisions (Judicial Review) Act 1977 that it be made a party to an application for an order of review in respect of a decision. The decision to which the application relates is, according to the assertions contained in the originating document (also called "application"), one which the respondent Gareth Evans made, that certain directions should be given by a Joint Authority constituted under the Petroleum (Submerged Lands) Act 1967 to a Designated Authority, in exercise of functions conferred on the Joint Authority in that behalf by s.10A of the Petroleum (Submerged Lands) (Royalty) Act 1967. The directions were with respect to the manner in which the Designated Authority should 2. exercise certain functions and powers under s.9 of the Petroleum (Submerged Lands) (Royalty) Act 1967. The applicant Robert Clive Fordham was at relevant times the Designated Authority. If the powers were exercised in accordance with the directions, a particular amount would in consequence be the value at the well-head, for the purposes of the Petroleum (Submerged Lands) (Royalty) Act 1967, of petroleum recovered or to be recovered by the other two respondents within a particular area. Oil Basins Limited (OBL) claims to be entitled to payment by those respondents of a percentage of the gross value of hydrocarbons recovered and to be recovered by those respondents in that area. The claim rests upon the provisions of a contract. OBL claims the entitlement as an assignee of rights conferred by the contract. OBL makes several alternative contentions as to the means of ascertaining, upon the proper construction of the contract and in the events which have happened, the value of hydrocarbons recovered for the purposes of calculating its entitlement. According to one of those contentions, that value is that which is the value at the well-head, for the purposes of the Petroleum (Submerged Lands) (Royalty) Act 1967, of petroleum recovered or to be recovered by the respondents BHP Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc. And it is not suggested that such a contention is untenable. Section 12 of the Administrative Decisions (Judicial Review) Act 1977 provides: "(1) A person interested ina decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or 3. ina failure to make a decision, being a decision, conduct of failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application. (2) The Court may, in its discretion - (a) grant the application either unconditionally or subject to such conditions as it thinks fit; or (b) refuse the application." The applicants consented to the order sought by OBL. The respondent Gareth Evans did not oppose the making of the order. But Mr. Hayne Q.C., who appeared with Mr. Judd for the respondents BHP Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc., submitted that OBL ought not to be made a party. They contended that OBL was not a "person interested in" the decision which is the subject of the application for review, within the meaning of s.12. It was submitted that an interest which derived, not immediately from an effect of the decision on the person claiming to be interested, but from an effect mediated through a causal chain of several links, did not satisfy the statutory requirement. Here, it was said, such a chain was evident : by reason of voluntary acts on the part of OBL and the two respondents for which Mr. Hayne appeared, a contractual right to a royalty was to be measured by reference to an amount, the ascertainment of which, for purposes in which OBL had no concern, would be influenced by the decision in respect of which the order of review was sought. Much the same could be said about the causal chain linking the decision in respect of which an order of review was sought in Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 and the economic interest, of the applicant for the order, which was prejudiced by the decision. As in the present case, voluntary acts creating contractual relations between the applicant and a person immediately affected by the decision the subject of the application had resulted in the applicant's having an interest in that decision, which determined whether or not customs duty was payable by that other person upon the importation of the goods which were the subject of the contract for sale to the applicant by the other person. It was said by Ellicott J. in that case, and by the members of the Full Court of this Court in Riceqrowers Co-operative Mills Ltd. v. nerman (1981) 38 A.L.R. 535 at 539-540, 544 that not only he who has "a legal interest at stake in the making of the decision", but also he who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public is a "person who is aggrieved by" that decision, within the meaning of that expression in 5.5(1) of the Administrative Decisions (Judicial Review) Act 1977. Mr. Hayne distinguished those pronouncements by the submission that the expression "person interested in a decision" in 5.12(1) defined a substantially more restricted class - those whose legal interests were affected by the decision - than the expression "person who is aggrieved by a decision" in s.5(1). As Young C.J. pointed out in Australian Conservation Foundation v. Environment Protection Appeal Board £19831] V.R. 385 at 393, the expression "person interested" has been used in many 5. statutes. The subject matter of the interest has a substantial influence on determination of the meaning to be assigned to the expression in any particular statutory context. (Cf. In re Roehampton Swimming Pool Ltd. £1968] 1 W.L.R. 1693 at 1696-1699.) In respect of the expression "person who is aggrieved by a decision", Ellicott J. observed (36 A.L.R. at 79): "I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended". The same considerations suggest the same conclusion concerning the phrase "person interested in a decision" in s.12(1). The phrase "person interested" had at one time a place in statements, both curial and legislative, concerning those "prerogative writ procedures" to which Ellicott J. referred. In particular, the phrase was formerly used to designate those to whom notice of an order nisi for mandamus should be given, and those who should be heard to show cause on the return of the order nisi : see Short and Mellor's Crown Practice (lst ed.) pp. 38, 40, 525; In re Shire of East Loddon; ex parte Cheyne (1898) 24 V.L.R. 703 at 705. It does not appear that only a person whose legal interest would be affected by the result of the proceeding was allowed to show cause : see Reg. v. The Mayor of Exeter (1868) L.R. 4 Q.B. 110 at 112. It is sufficient for present purposes to say that in my opinion a person whose legal rights against another may be affected by a decision is a person interested inthe decision, within 5.12(1), if the possibility is a real, and not a_ remote, fanciful possibility. OBL is such a person, in my opinion. To go 6. so far is to go no further, in enlargement of the class comprehended by the phrase "person interested in a decision", than Ellicott J. went in enlargement of the class comprehended by the expression "person who is aggrieved by a decision". Indeed, it is to go not so far, for Ellicott J. and the members of the Fuil Court in Riceqrowers Co-operative Mills Ltd. v. Bannerman, supra declared that the latter expression comprehended any person who can show a grievance which will be suffered as a result of the decision beyond that which he or she has as an ordinary member of the public. It might be thought that the draftsman of s.12(1) would not have wished to offer, to every person able to show a grievance which will be suffered as a result of the decision or as a result of the quashing or setting aside of the decision, beyond that which an ordinary member of the public will have, an opportunity to be made a party to proceedings for review of the decision. The question whether or not the draftsman did confer the opportunity on a class so0 widely defined need not be answered on this occasion, I think. The structure and verbiage of sub-section 12(2) makes it clear that membership of the class defined in sub-section 12(1) confers no right to joinder in a proceeding for an order of review under the Act, but merely a right to have exercised the Court's discretionary judgment whether to make the applicant under 5.12 a party. The Act contains no statement of any criterion by reference to which the discretion is to be guided. The applicant's interest in the decision, by reason of which he or she gained entitlement to make the application under s.12, will no doubt afford also a consideration in favour of granting the 7. application. But the weight of that consideration may be great or small, according to the nature of the interest. When in 1960 the contract was made which adopted for the purposes of the calculation of royalty the value of hydrocarbons "on which royalty to the State is based", the party to which the contract provided that royalty should be paid had no reason to suppose that it would be able to take part in any curial proceeding the result of which would, or might, influence that value on which royalty to the State should be based. When in 1972 OBL completed the transactions by reference to which it makes its present claim to royalty from the respondents 8.H.P. Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc., OBL had no reason to make such a supposition. The applicant in Tooheys Ltd. v. Minister For Business and Consumer Affairs, supra could hardly have avoided bearing the burden of whatever customs duty the goods it wished to buy would bear. But no practical necessity which the evidence discloses required the adoption by the parties to the contract of 1960 of a value for the purposes of exactions by "the State" as the value for their contractual purposes. For those reasons OBL's claim to an exercise in its favour of the power to make it a party is not strong, in my opinion. Further, it is not apparent that the addition of OBL as a party would result in the Court's having the benefit of submissions or evidence which none of the other parties would advance or adduce. On the other hand, parties on both sides of the record, being in one case an Australian body politic and in the other cases representatives of executive governments within Australia, have expressed no opposition to joinder of OBL. Two of those parties have expressed their consent. The amount of money which OBL might gain or lose on the outcome of this proceeding is very great. There 1s no other person seeking to be joined as a party, nor does it presently appear that any other may seek to be joined. The respondents for which Mr. Hayne appears sought to show by evidence that OBL had engaged in conduct inconsistent with the assertion OBL now makes that it has an interest in the subject matter of this proceeding. I do not consider that the evidence adduced to that end does establish the inconsistency alleged. Evidence was also adduced on behalf of those respondents to establish that OBL had breached an undertaking that it would not make disclosure of certain information in the manner in which such a disclosure was in fact made by OBL after the suggested undertaking had been given. If the breach suggested were committed, as to which it is unnecessary that I make a finding, that circumstance would not influence me to a different conclusion about the application for joinder. In all the circumstances I am persuaded to accede, but doubtfully, to the application that OBL be joined as a party. I certify that this and the seven preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. le ae * ed Associate Dated: 6 May, 1987 VG628 of 1986 Counsel for the Applicant Solicitor for the Applicant Solicitor for the first named Respondent Counsel for the second named and third named Respondents Solicitors for the second named and third named Respondent Counsel for the Applicant to be joined as a party Solicitors for the Applicant to be joined as a party Date of Hearing Mr. H.C. Berkely Q.C., Mr. B.J. Shaw 0.C. and Mr. M.A. Adams Victorian Government Solicitor Australian Government Solicitor Mr. K.M. Hayne Q.C. and Mr. J.E. Judd Middletons, Oswald Burt Mr. R. Merkel Q.C. and Mr. J.G. Santamaria Arthur Robinson and Hedderwicks 23 April, 1987