Aboriginal Development Commission v Minister of State for Aboriginal Affairs (G.L. Hand)

[1988] FCA 318

IN THE FEDERAL COURT	OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	1	No. G954 of 1988
)
GENERAL DIVISION	)

BETWEEN :  ABORIGINAL DEVELOPMENT
COMMISSION

First Applicant

Second Applicants

OSSIE BENJAHIN CRUSE

Third Applicant

-	MINISTER OF STATE FOR
GERARD LESLIE HAND, THE
ABORIGINAL AFFAIRS

AND :

First Respondent

AND :

-

I order that the first applicant pay the costs of the

CORAM :	DavieB J.
-	DATE :	7 June 1988
PLACE:	Sydney
second respondent6 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 flle 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 learnt 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 irn a principle of administrative law that

decirnionr challenged should be challenged promptly. It is

inappropriate in a case such as this to put off the question

whethor 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 a8 reasonably practical. If it cannot be

determined promptly, it ought not be determined at all.

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 war difficulty in interpreting the provisions of the

Aboriginal Development Commission Act 1980 (Cth) and an issue

arore ar to the validity and effect	of a direction given by the
ninirter under s.11 of that Act.	That direction required, inter

alia, that the Couirrion co-operate in steps that were being

taken which were designed ultimately to bring to an end the

Commisrion as it prerently exists and to bring into existence a

new body, the Aboriginal and Torres Strait Islander Commission.

In taking the rtepr that they did, it appears the Commission as

then conrtituted and the second and third applicants acted upon

legal advice and I have no reason to doubt that they acted
otherwire than in good faith by doing whpt they thought should	be
done in the boat 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 6.11 of the Act. As

to the meaning and effect of that section,	I did not adopt
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	5.11 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 recond 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 Ir JuLtice Davies.