s NOT FOR DISTRIBUTION —— v a : , 2 =.) WO, SIS Rage on) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G954 of 1988 er ee ee ee ee GENERAL DIVISION BETWEEN: ABORIGINAL DEVELOPMENT COMMISSION First Applicant LENA_ANNAI PASSI, JOHN EDWARD ATKINSON, ANDREW GEORGE THOMAS, MARIA JOYCE THOMPSON, HELEN DJIMBARRWALA WILLIAMS, BEHN WARD and PHILLIP YANNER Second Applicants OSSIE BENJAMIN CRUSE Third Applicant ig GERARD LESLIE HAND, THE MINISTER OF STATE FOR ABORIGINAL AFFAIRS First Respondent TERENCE JOSEPH O'SHANE, LOIS O' DONOGHUE CBE AM, HARLES NELSON PERKINS, GETANO BELFORD LUI JR, ESTHER CARROLL, PETER SHANE YU, ROBERT LEE and PATRICK LIONEL DODSON ig CORAM: Davies J. DATE: 7 June 1988 PLACE: Sydney REASONS FOR JUDGMENT EX TEMPORE I order that the first applicant pay the costs of the 2. second respondents to these proceedings and that it pay the costs of the first respondent up to, but excluding, Friday, 20 May 1988. I grant leave to the first respondent to file notice of discontinuance. There is now no applicant actually present in Court. The second and third applicants were members of the Aboriginal Development Commission at the time when these proceedings were first initiated by the Commission and they were joined when it was realized that they were necessary parties to the relief that the first applicant sought. The Court has had some communication from at least one of the applicants. The third applicant, Ossie Benjamin Cruse, has phoned the registry to say that he is unable to attend this morning as he is not in Sydney and does not have the finance to come here; but he asked the registry for an adjournment of the proceedings so that he could obtain legal aid and pursue the claim. In my opinion, it would be inappropriate to adjourn the proceedings. It is a principle of administrative law that decisions challenged should be challenged promptly. It is inappropriate in a case such as this to put off the question whether or not the second and third applicants were properly dismissed as members of the Commission and whether the second respondents were lawfully appointed members in their place. That question, if it is to be determined by the Court, should be determined as soon as reasonably practical. If it cannot be determined promptly, it ought not be determined at all. 3. In the discretion of the Court and having regard to the nature of the issue, I would not put off the consideration of that issue and I would not adjourn these proceedings as requested by Mr Cruse. It follows that, there being no one present before the Court this morning who seeks to pursue the application, the application must be dismissed. Miss Henderson, who appears on behalf of the Minister, has sought an order that the second and third applicants pay the costs of the first respondent of the proceedings. In my opinion, this is not an appropriate case in which to award such costs. There was difficulty in interpreting the provisions of the Aboriginal Development Commission Act 1980 (Cth) and an issue arose as to the validity and effect of a direction given by the Minister under s.11 of that Act. That direction required, inter alia, that the Commission co-operate in steps that were being taken which were designed ultimately to bring to an end the Commission as it presently exists and to bring into existence a new body, the Aboriginal and Torres Strait Islander Commission. In taking the steps that they did, it appears the Commission as then constituted and the second and third applicants acted upon legal advice and I have no reason to doubt that they acted otherwise than in good faith by doing what they thought should be done in the best interests of the Aboriginal community. The problem, therefore, arose out of some imprecision in words of the direction, particularly the word "co-operate" and some doubt as to the meaning and effect of s.11 of the Act. As to the meaning and effect of that section, I did not adopt 4. everything that was put to me on behalf of the Minister, nor did I adopt everything that was put to me on behalf of the applicants. I upheld the validity of the direction given but, nevertheless, pointed out that that direction was subject to the specific provision appearing in sub-s.(2) of s.11 of the Act, namely, that the power of the Minister to give directions does not extend so as to empower him to give directions as to the content of any advice, information or recommendation that may be given by the Commission. It seems to me that the issue arose from the question whether the direction was intended to be so limited in its effect and as to whether or not it had a wider operation. It follows that the proceedings arose not from fault on the part of the second and third applicants or the Commission as it was the constituted, but at least in part from a doubt as to the meaning and effect of a direction given by the Minister. In these circumstances, it is appropriate that the Minister and the second and third applicants should each abide his own costs of the proceedings. For those reasons I refuse the order as to costs sought by Miss Henderson. I dismiss the application. I certify that this and the 3 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Jugtice Davies. Associate; fo Que y Date: Tone 1983 .