Dunstan v von Doussa [2008] FCA 97

FEDERAL COURT OF AUSTRALIA

Dunstan v von Doussa [2008] FCA 97

PRACTICE AND PROCEDURE – Administrative Decisions (Judicial Review) Act 1977 (Cth), s 18 – Attorney-General's right to intervene in proceedings – joinder of Attorney-General as party to proceeding Administrative Decisions (Judicial Review) Act 1977, s 18(Cth) Adams v Adams [1971] P 188 approved Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 cited Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 cited Eastman v Miles (2004) 181 FLR 418 cited Finch v Goldstein (1981) 55 FLR 257 cited R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 cited Toy Centre Agencies Pty Ltd v Spencer (1983) 67 FLR 458 approved COLIN GEORGE DUNSTAN v JOHN VON DOUSSA, DEBBIE MORTIMER, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA ACD 38 OF 2007

FLICK J

22 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 38 OF 2007

BETWEEN: COLIN GEORGE DUNSTAN

Applicant

AND: JOHN VON DOUSSA

First Respondent

DEBBIE MORTIMER

Second Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Third Respondent

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Fourth Respondent

JUDGE: FLICK J

DATE: 22 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Applicant in these proceedings, Mr Colin Dunstan, made a complaint to the Human Rights and Equal Opportunity Commission against (inter alia) Professor David Hambly. That complaint was made by way of letters dated 14 and 30 September and 19 October 2005. Further information was provided to HREOC on 18 January 2006. The complaint, in summary form, alleged that Professor Hambly had victimised Mr Dunstan under the Sex Discrimination Act 1984 (Cth). 2 Professor Hambly was informed by the Commission of the making of the complaint by way of letter dated 31 March 2006. 3 On 25 June 2007 the Commission advised those acting for Professor Hambly, the ACT Government Solicitor, that a delegate of the President of the Commission, the Honourable Dennis Mahoney, had decided to terminate the complaint. The delegate had decided to do so on the basis that there was "no reasonable prospect of the complaint being resolved through conciliation." Reasons for the decision were annexed to that letter. 4 On 11 July 2007 Mr Dunstan wrote to the President, the Honourable John von Doussa, expressing "dismay" at an absence of response to correspondence forwarded in April and June 2007. The July 2007 letter made a series of applications, being: 1. an application for the revocation of the termination "of that part of my complaints identified in the 'Notice of Termination' dated 25 June 2007 and signed by the Honourable Dennis Mahoney AO QC, Delegate of the President"; 2. an application that the President "hold a single inquiry and conduct a single conciliation, in relation to my complaints of victimisation, set out in submissions on and after 15 September 2005"; and 3. an application that "your previous delegation of my complaints of victimisation that you have made to Debbie Mortimer SC be expanded so as to delegate the entirety of my complaints described in "(ii)" above, to Debbie Mortimer SC". 5 On 26 July 2007 the President of the Commission wrote to Mr Dunstan advising him that he had decided not to revoke the termination. That letter was in some detail and set forth observations as to both Mr Dunstan's failure to respond to requests for information made by Mr Mahoney and observations as to the President's power of revocation conferred by s 46PH(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 6 On 10 September 2007 Mr Dunstan commenced proceedings in this Court, invoking the jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Respondents to that Application are the President of HREOC, John von Doussa, as First Respondent; Ms Debbie Mortimer, as Second Respondent; and the Commission, as Third Respondent. 7 The Applicant is unrepresented. 8 The Application, in summary form, seeks to review the failure of the Second Respondent (a delegate of the Commission) to resolve complaints made by the Applicant and seeks to review the decision of the President of the Commission made on 26 July 2007. The Application has now been listed for hearing on 28 March 2008. 9 In advance of that hearing two issues remain outstanding, namely: (a) an oral application made in court by the Attorney-General of the Commonwealth seeking to intervene in the proceedings pursuant to either s 18 of the 1977 Act and/or O 6, r 8 of the Federal Court Rules 1979 (Cth); and (b) a Notice of Motion filed on behalf of Professor Hambly seeking that he be joined as a party to the proceedings pursuant to O 6, r 8(1) of the Federal Court Rules 1979 (Cth). Leave was granted on 16 October 2007 to amend the Notice of Motion as filed to also invoke s 12 of the 1977 Act. 10 Submissions in respect to both applications were heard on 17 December 2007. On that occasion it was concluded that the Attorney-General did have a right to intervene but that there was uncertainty as to the fate of Professor Hambly's application. Judgment was reserved and it was then indicated to the parties that reasons would be published "shortly." 11 The matter was further mentioned on 8 February 2008. On that occasion, counsel appearing for Professor Hambly, Mr Walker, was informed that his application for joinder would most likely be refused. Counsel was then given a choice: either to have the application for joinder resolved and reasons provided or to stand over the Motion until the hearing on 28 March 2008. Professor Hambly would then be in a position to know whether there were either legal or factual issues left unaddressed by the Attorney-General, being issues in respect to which the Professor wished to contribute. Perhaps not surprisingly, counsel opted to have the fate of his Motion deferred until the hearing on 28 March 2008. 12 Although Professor Hambly's Motion thus remains outstanding, reasons should now be provided — albeit belatedly — for the order made on 17 December for the joinder of the Attorney-General. Although that order mysteriously refers in terms to the joinder of the Attorney-General as a "collateral" Respondent, its intended effect was that the Attorney-General had properly exercised his right to intervene conferred by s 18(1). 13 Section 18 of the 1977 Act provides as follows: Intervention by Attorney-General (1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding before the Federal Court or the Federal Magistrates Court under this Act. (2) Where the Attorney‑General intervenes in a proceeding in pursuance of this section, the court may, in the proceeding, make such order as to costs against the Commonwealth as the court thinks fit. (3) Where the Attorney‑General intervenes in a proceeding in pursuance of this section, he or she shall be deemed to be a party to the proceeding. This provision has close similarities with both s 78A of the Judiciary Act 1903 (Cth) and s 30A of the Administrative Appeals Tribunal Act 1975 (Cth). 14 Although the Attorney-General initially sought "leave to intervene", it is considered that s 18(1) of the 1977 Act confers a right to intervene in proceedings. The right to intervene has been invoked by the Attorney-General upon prior occasions: eg Finch v Goldstein (1981) 55 FLR 257 at 270, 36 ALR 287 at 298. The right conferred by s 78A of the Judiciary Act, it may be noted, is a right frequently exercised by the Attorney-General in Constitutional cases before the High Court of Australia: see Campbell, Intervention in Constitutional Cases (1998) 9 Pub L Rev 255 at 256. Where the Attorney-General seeks to intervene in proceedings in this Court, he is deemed to be a party to the proceeding pursuant to s 18(3): see Eastman v Miles [2004] ACTSC 32 at [92], 181 FLR 418 at 445–6 per Gray J. 15 Even had leave been required, leave would have been granted. The basis upon which the Attorney-General sought to intervene was to avoid the prospect of the First, Second and Third Respondents having to "defend" their own conduct or decisions made: cf R v Australian Broadcasting Tribunal, Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289. 16 The circumstances in which the Attorney-General may exercise the right conferred by s 18(1) to intervene "on behalf of the Commonwealth" are not, however, confined to those in which named respondents may otherwise be placed in the position of having to defend their own decisions or conduct. The ultimate objective of the Administrative Decisions (Judicial Review) Act 1977 (Cth), it will be recalled: …is to ensure that decisions of public servants and others which affect the rights, prospects and property of citizens, are made after giving careful consideration to the questions involved in the particular case, so that it is more likely that the decision will be right and justice done to the persons affected by it: Toy Centre Agencies Pty Ltd v Spencer (1983) 67 FLR 458 at 466 per Lockhart J. The manner in which the 1977 Act may impact upon the Commonwealth is thus diverse. Equally diverse are the circumstances in which the Attorney-General may seek to intervene to represent the interests of the Commonwealth. It would thus be far from prudent to attempt to define or categorise in advance those interests of the Commonwealth which would permit the Attorney-General to exercise his right of intervention. 17 Even in the absence of provisions such as s 18 of the 1977 Act and s 78A of the Judiciary Act, the Attorney-General has what has been described as "a right of intervention in a private suit whenever it may affect the prerogatives of the Crown": Adams v Adams [1971] P 188 at 197. Sir Jocelyn Simon P there held at 197–8: In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states … and he certainly has in such circumstances a locus standi at the invitation of the court… I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court…. See also: Auckland Area Health Board v Attorney-General, [1993] 1 NZLR 235; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 400–2 per Hutley JA (Reynolds and Glass JJA agreeing). Such decisions remain of assistance in providing instances as to those circumstances in which Courts have recognised the right of an Attorney-General to intervene as a party to proceedings. 18 There are, however, in many situations differences between private litigation concerning private parties and proceedings invoking the jurisdiction of this Court conferred by the 1977 Act. Proceedings seeking judicial review pursuant to that Act advance on behalf of applicants their own private interests; the manner in which a respondent is administering Commonwealth legislation affecting those applicants, however, may well give rise to, and frequently do give rise to, issues of more widespread interest. Those differences may only serve to emphasise the importance of the Attorney-General having the ability to intervene "on behalf of the Commonwealth." The right of intervention conferred by s 18(1) obviously should not be confined to those situations in which an Attorney-General has a right of intervention in private litigation. Section 18 confers a right to intervene and is a right which should be construed and applied in the statutory context in which it appears and in a manner which promotes the objects and purposes of the 1977 Act. 19 For the purposes of the present proceedings, it has been assumed that s 18(1) confers what may accurately be described as a "right" or an entitlement to intervene. Such a right or entitlement is consistent with the language employed in both those cases dealing with the intervention of an Attorney General in private litigation and the language employed when considering such comparable provisions as s 78A of the Judiciary Act. It has not been necessary to consider the position which would arise where there was no identifiable interest of the Commonwealth which was sought to be agitated by the Attorney-General. Indeed, it would be difficult to envisage the Attorney-General seeking to intervene in such cases. 20 One matter which will require attention at some future date is s 18(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Should Mr Dunstan's Application be rejected, that being a matter in respect to which no view can presently be expressed, s 18(2) is at least open to the construction that the Attorney-General may not be entitled to seek an order for costs. But that is a matter which is merely noted at present and may become the subject of further submissions, if considered appropriate, in due course. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.