NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.216 of 1987 ) ) GENERAL DIVISION BETWEEN: PARKES RURAL DISTRIBUTIONS PTY LIMITED Applicant AND: RICHARD JOHN BALFOUR - Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 16 JULY 1987 " MINUTES OF ORDER THE COURT ORDERS THAT: l. The application seeking relief under s.15 of the Administrative Decisions (Judicial Review) Act be dismissed. 2. The applicant pay to the respondent his costs of the | application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. tetera Weape ene rg eee ae a eo | NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.216 of 1987 wee ww GENERAL DIVISION BETWEEN: PARKES RURAL DISTRIBUTIONS PTY LIMITED Applicant AND: RICHARD JOHN BALFOUR Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 16 JULY 1987 EXTEMPORE REASONS FOR JUDGMENT There is before the Court an application which was, by leave, filed on 14 July seeking relief under s.15 of the Administrative Decisions (Judicial Review) Act 1977 in connection with an Application under that Act which is sought to be filed if an extension of time is granted. The application for an extension of time was filed on 20 May 1987, and to that document was attached the form of Application which it was desired to file if an extension were granted. ee Te ate That application for extension came before Burchett J on 29 May 1987. By arrangement, the matter was mentioned in chambers before his Honour on 2 June 1987, when 24 August 1987 was appointed for the hearing of the extension of time. In the meantime, as I have said, an application has been made for an interim order under s.15 and this application was debated this morning. The relief which is sought is an order restraining the respondent, Richard John Balfour, from proceeding with prosecutions against the applicant, Parkes Rural Distributions Pty Limited -- which are identified by the numbers 5005D, 5006D, 5007D, 5009D and 5011D -- at the Local Court, 302 Castlereagh Street, Sydney. Those prosecutions are currently intended to be listed for hearing next Monday, 20 July 1987; a period until 21 August 1987 having been reserved for the hearing. There is a very considerable history to the present matter. The various prosecutions arise out of the Petroleum Products Subsidy Act 1965 (NSW). Section 8 deals with certificates given under that Act in relation to payments due to registered distributors of eligible petroleum products. Section 8(iii) provides that where an authorised officer is satisfied that an amount paid to a person under the Act was not payable to that person, or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State. ans Se es eee te It appears that the applicant was a registered distributor of eligible petroleum products in the years 1981 and 1982. On 2 February 1982 Mr Glasson, an authorised officer under the Act, issued a certificate under s.8(iii) certifying that a sum of $152,317.70 was repayable by Parkes Rural Distributions to the State of New South Wales. Parkes Rural Distributions sought review of that certificate under the Administrative Decisions (Judicial Review) Act; and proceedings were taken in this Court, which proceedings went on appeal to the High Court of Australia. In a decision reported at 115 CLR 234, given on 20 August 1984, the High Court held that a certificate under s.8(iii) was not a "decision under an enactment", so as to be within the jurisdiction of this Court. Shortly after that decision was given, namely on 13 November 1984, the present respondent, Richard John Balfour; who was also an authorised officer under the Petroleum Products Subsidy Act, issued a second certificate under s.8(iii). This certificate was for a lesser amount, namely $134,065.27. At the time it was said by the Australian Government Solicitor, in correspondence with the solicitors for the present applicant, that 1t was intended that this second certificate would be in substitution for the earlier certificate. 1 oor y we Nd The present applicant commenced proceedings in the Supreme Court of New South Wales, attacking the validity of both certificates. These proceedings came before Hunt J in July 1985. In a judgment delivered on 10 July 1985, Hunt J dismissed the application made to him. He held that the earlier of the two certificates was invalid, because of the failure of Mr Glasson, prior to issuing the certificate, to hear the affected person, namely Parkes Rural Distributions Pty Limited. His Honour dealt with a number of grounds by reference to which it was said that the second certificate was invalid. He rejected an argument that it was not possible under the State Act for an authorised officer to issue a second, or an amended, certificate. He also dealt with a submission that the second certificate was out of time because of the effect of cl.E2(6) of the Scheme adopted pursuant to the Commonwealth Act; that is, the State Grants (Petroleum Products) Act 1965. That legislation provides for the adoption by the Minister of a Scheme, and it appears that such a Scheme has been adopted referable to New South Wales. Clause E2 deals with certificates for payments, and it follows fairly closely s.8 of the State Act. However, it contains sub-clause (6), which reads as follows: "(6) After the expiration of a period of two years from the date a claim is made, no adjustment shall be made or certified under this clause to the amount certified as payable in connexion with the claim except an adjustment for the recovery of an overpayment arising out of fraud in relation to the claim or to payment under the claim." It was submitted to Hunt J,'on behalf of Mr Glasson and Mr Balfour, that cl.E2(6) was of no relevance toa challenge to a certificate given under s.8(i1i) of the State Act. His Honour rejected that submission and considered the application of cl.E2(6) to the case before him. In particular, he considered the gualification at the end of the clause dealing with an overpayment arising out of fraud. It was apparently put to his Honour that the issue of fraud was justiciable in the proceedings before him. His Honour rejected that submission and held that the issue of fraud was one for determination by the certifying officer, subject only to the usual supervision effected by the courts through the medium of judicial review. Tt was apparently also submitted that there was no sufficient evidence to enable Mr Balfour to come to a conclusion that there existed fraud, but his Honour rejected that submission. In his judgment he expressed the view, and I guote: "There was 1n my view an abundance of evidence available to the second defendant." That is on the issue of fraud. Notwithstanding these findings, Hunt J held that the second certificate under s.8(iii) was invalid. The reason for his so finding was that at the time of its issue, no certificate had been granted under cl.A4 of the Commonwealth Scheme. Clause A4(1) provides that, subject to sub-cls.(2) and (3) of the clause, "the place or date of a sale shall for oe ween ae ee a -—4re 3 og woeers pees a the purposes of this scheme be the place or the date of sale specified in the prime document of the sale". For practical purposes, the words "prime document" may be regarded as referring to the relevant invoice. Sub-cl.(3) provides that: "(3) An authorised officer shall - (a) 1£ upon investigation of a sale he is satisfied that the actual place or date of the sale was not the place or date specified in the prime document; or (b) if no place or date for the sale is specified in the prime document, give a certificate stating the place at which and the date on which in his opinion the sale took place, and the sale shall be regarded as having taken place for the purposes of this scheme at the place and on the date stated in the certificate." As I follow his reasoning, the view that was taken by Hunt J was that, unless and until there was a relevant certificate under cl.A4(3) so as to displace the provisions of cl1.A4(1), an authorised officer could not under s.8(iii) make a certificate which was inconsistent with the prime document. Consequently, his Honour held that the second certificate was invalid. However, a few days before the hearing before his Honour -- namely, on 25 June 1985 -~ a certificate under cl.A4 had in fact been issued. It is this certificate which is sought to be impugned in the principal proceedings in this Court. Hunt J took the view that it would be futile to grant relief in respect of the second s.8(iii) certificate on this ground, because it would be open to the respondent, Mr Balfour, immediately to issue a third s.8(iii) certificate which was valid. wore s. meee we eer eee Ron pnt seen pats poses enanal Before Hunt J considerable attention was paid to the ussue of natural justice. It was submitted that, 1n reaching the conclusions set out in the second s.8(iii) certificate, Mr Balfour had denied the applicant natural justice. His Honour devoted a lengthy section of his judgment to an analysis of the evidence on these matters. For the most part, he held that there had been no failure to offer an appropriate hearing. However, there were some invoices in relation to which it was conceded that the attention of the applicant had not been drawn. But for one circumstance, as I understand the judgment, Hunt J would have held that this failure vitiated the certificate. However, the one circumstance was that it was conceded on behalf of the applicant that it would not have been able to put any additional information before Mr Balfour in relation to the matters in respect of which there had been that failure. Conseguently, Hunt J held that there was an absence of prejudice and, consequently, that the certificate was not void because of the failure to afford natural justice to the then plaintiff. As I have said, the application before Hunt J was dismissed. An appeal was taken by Parkes Rural Distribution Pty Limited to the Court of Appeal, which appeal was dismissed on 24 November 1986. Apparently not all of the grounds relied upon before Hunt J were reargued before the Court of Appeal, but the matter of natural justice was reargued; as also was the question of whether the issue of fraud was one for the ed oper officer or for the court. The Court of Appeal agreed with the views on both these matters which have been expressed by Hunt J. oe ee ee Parallel to the civil proceedings there have been criminal proceedings. As I understand the history of the Matter, 16 informations were laid by Mr Balfour, or other meee woe officers, against Parkes Rural Distributions Pty Limited in December 1982 and in January 1983. These informations all alleged offences under s.15(2) of the Petroleum Products Subsidy Act. I gather that most of the informations were based upon para.(a), whereby it is made an offence for a person to obtain a payment under the Act that, to the i knowledge of that person, is not payable. There were apparently also some informations based on para.(c), but they i are not material to the present proceedings. The events, the subject of all of the informations, took place in July and August 1981. It appears from a summary of the criminal proceedings, which are set out in a judgment of Yeldham J in the Supreme Court, dated 19 February 1987, that the hearing of the first information commenced on 17 August 1982. As at the present time, as I understand the position, evidence has been taken in 11 of the 16 cases; each of which has been heard separately. Apparently in some three or four of the cases the informations have been dismissed, and there have been convictions in the remainder. There appear to have been appeals in respect of each of the cases where there have been convictions, not all of which have yet been completed. The very extensive delay which has occurred in the resolution of these prosecutions seems to have been caused partly by the contemporaneous civil proceedings, regarding the validity of the certificates, and partly because of Listing problems, caused by the unavailability of magistrates in the Local Court. The current position is that the period commencing next Monday has been set aside, apparently in the expectation that it will be sufficient to allow the remaining five matters to be heard and determined. As I understand the position, although the present applicant will continue to seek a separate hearing of each information, as is of course its entitlement, it has not in the past raised, and does not expect in the future to raise, any objection to the hearing of a subsequent information by a magistrate who has already dealt with an earlier information. One can only say that it would be a matter of some dismay 1f the allotted period were not sufficient to deal with these five cases. I say this because it 1S now s1x years since the period during which the alleged offences occurred; and the information which has been given by the clerk of the Local Court to the parties is that, if the matters are not completed during this period, there will have to be an adjournment until May 1988. It would be most unfortunate for prosecutions, on matters such as these, to be so long delayed in being finalised. I have reached the view that the present application should be refused and for a number of reasons. The first reason is that the Court has yet to determine the application spate a ope cape coe 10. for extension of time in which to seek review under the Administrative Decisions (Judicial Review) Act. The time limited by that Act for the filing of an application is 28 days. There is a wide discretion in the Court to extend the time, and it is not necessary for me to canvass the relevant principles or to express any concluded view about the prospects of the extension being granted. I merely say that I think that I must regard it as doubtful whether an extension will be granted in this case. I say this because the grounds of review, which are set out in the draft Application, seem to traverse largely, if not entirely, grounds which were argued before Hunt J in respect of the s.8(iii) certificate and, in particular, the questions of natural justice and whether or not the certificate was out of time; this latter issue itself involving a question of whether there was material on which there could be a finding of fraud. The findings made by Hunt J were unsuccessfully attacked in the Court of Appeal. And nothing has been put before me today to indicate that there would be considerations in this Court which would be additional to those considered in the earlier litigation. It must be a serious question, for the judge determining the application for extension of time, whether this is not simply an attempt to re-litigate matters already well considered. ae ee, oe tee oer serene eer apes aT . pcm ie ae gee ee wore ew ee Sarno 1l. The second reason for my view is that, in any event, the issues which would have to be determined, on the hearing of an application under the Administrative Decisions (Judicial Review) Act, would be quite different from the issues which would have to be determined by the magistrate. Judicial review involves consideration of grounds of attack upon the making of an administrative decision. The relevant administrative decision was that of Mr Balfour: to make his certificate of 25 June 1985. The focus would be on events surrounding the issue of that certificate, including the guestion whether he gave natural justice, and including also the relationship between his certificate and the two certificates granted under s.8(i1i) of the State Act. The issue before the magistrate, or each of the magistrates if there be more than one, who deals with the pending prosecutions 1s guite different: namely, whether or not there has been an offence under s.15(2)(a) of the State Act. The relevant events will primarily, if not entirely, be events which occurred in and around July 1981. It was conceded by counsel, in the argument before me, that the certificate given by Mr Balfour would not be a relevant document before the magistrate. Indeed, Mr McDevitt said that 1n a previous prosecution he had strongly objected to the tender of that certificate; it seems to me rightly. I have been informed by counsel for the respondent that it is not intended that Mr Balfour's certificate be tendered in the pending proceedings. I think that the position is that the Stead aonb heeenceiedeaiedcnat? ieeliial a "tev 12. validity of the certificate, given by Mr Balfour, is relevant only to the recoverability of the money. Consequently, I see no problem about the magistrate dealing with the question of guilt or innocence on the presently pending charges. My third reason is that the circumstances are such that the Court's discretion ought to be exercised against granting the relief which has been sought. Three matters should be mentioned in connection with discretion. First, the delay in bringing the principal proceedings under the Administrative Decisions (Judicial Review) Act is considerable, namely, 23 months. It is not as if the applicant was unaware of the existence of that Act, as is demonstrated by its unsuccessful attempt to use that Act in relation to the certificate granted by Mr Glasson. Nor is it as if the applicant was unaware of the significance of matters of natural justice and the guestion whether fraud is a justiciable issue in the Court, as distinct from being a matter for the certifier. These were both matters referred to in the proceedings before Hunt J, and on appeal from him. Secondly, the history which I have already set out shows that the date for hearing the application for extension was selected, by agreement, at a time when the date of resumption of the criminal proceedings was already known. I have no doubt whatever that if Burchett J had been told on 2 June 1987 that there were proceedings pending in the Local Court to commence on 20 June 1987, and that it was desired that an order be obtained to restrain those proceedings, he ree pee mt ore pe rw ere 13. would have taken some steps to have the application for extension of time dealt with before that date. Apparently, nothing was said to him about that matter and, in the belief that there was no particular urgency, his Honour set down the extension application for 24 August. I am told by counsel for the respondent that the particular date was in fact chosen as being convenient to the parties because it was after the completion of the period set aside in the Local Court and before the date of a pending District Court appeal in respect of one of the convictions arising out of the prosecutions. In other words, 1t was chosen upon the assumption that the criminal proceedings would continue. Finally, I am disturbed about the lateness of this current application. It is a matter of grave concern that the Court should be asked to take the step of restraining another court from proceeding with the hearing of matters, for which it has set aside four to five weeks, only two working days before that period commences. The scarcity of dates in the Local Court is notorious. It is shown once again by the history of these matters. A magistrate has been made available to hear these matters and, if I were at this stage to restrain him or her from so doing, it seems extremely likely that some or all of the period which has been set aside would not effectively be used. By contrast, if that application had been made a month or so ago and been successful, it may well have been possible for the dates to have been made available to other parties. wey rete weco op ee we ones spears riences, VA we ee aye po ee : 14. All of these matters are reasons why, as a matter of discretion, the present application should be refused. The order I make is that the present application be refused and that the applicant pay the respondent's costs of the application. I certify this and the thirteen (13) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. associate: danne- forbcd . Date: 5 August 1987 Counsel for the Applicant: Mr A A McDevitt Solicitors for the Applicant: Robert Hall & Co Counsel for the Respondent: Mr P § Hastings Solicitor for the Respondent: Australian Government Solicitor Date(s) of hearing: 16 July 1987 -wen og roe, oo te t )