Akers, K.M. v Minister of State for Immigration, Local Government & Ethnic Affairs
[1988] FCA 659
•27 SEPTEMBER 1988
Re: CENTURY METALS AND MINING NL and THE UNION OF CHRISTMAS ISLAND WORKERS
And: ROBERT J. YEOMANS; THE LIQUIDATOR OF THE PHOSPHATE MINING CORPORATION OF
CHRISTMAS ISLAND and THE MINISTER FOR ARTS AND TERRITORIES
No. WAG122 of 1988
Evidence
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Evidence - judicial Review - confidential report embodying impugned recommendations - objection to competency - question whether recommendations are "decisions" - call for production of report - production directed as on terms as to disclosure.
Phosphate Mining Corporation of Christmas Island (Winding Up) Ordinance 1987
Administrative Decisions (Judicial Review) Act 1977
HEARING
PERTH
#DATE 27:9:1988
Counsel for the Applicants: Mr R. Ellicott QC and Mr P. Foss
Solicitors for the Applicant: Mallesons Stephen Jaques
Counsel for the First Respondent: Mr A. Chernov QC and Mr D. Clyne
Solicitor for the First Respondent: Sly and Weigall
Counsel for the Second Respondent: Mr A. Chernov QC and Mr P. Macliver
Solicitors for the Second Respondent: Australian Government Solicitor
ORDER
The second respondent do produce to the Court and to counsel for the applicants a copy of the first respondent's report submitted to the second respondent under cover of a letter dated 23 June 1988.
Until further order counsel for the applicants are directed that they not make or permit to be made further copies of the report nor to disclose its contents or any part thereof to any other party (including their clients) without the leave of the Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 11 November 1987 the then Minister for Territories announced the closure of the Christmas Island Phosphate Mine and the appointment of a liquidator to the statutory corporation known as the "Phosphate Mining Corporation of Christmas Island". The liquidator was appointed pursuant to the provisions of the Phosphate Mining Corporation of Christmas Island (Winding Up) Ordinance 1987. He was by s.14 of the Ordinance empowered, inter alia, to sell or otherwise dispose of the property of the corporation. In that regard he advertised inviting proposals "from organisations interested in purchasing the assets of PMCI and recommencing mining operations on Christmas Island". He contends that the question of who should recommence mining operations was not part of his brief as liquidator, but the result of a request from the Minister that he assess and make recommendations concerning proposals from parties interested in that operation.
While the liquidator had, under his Ordinance, dispositive powers over the assets of the corporation,it is said that they did not include the right to mine the land. One proposal for the recommencement of mining operations came from the first applicant. Another came from Elders Resources Limited.
In the event the liquidator furnished a report and recommendations to the Minister on or about 23 June 1988. After receiving that report the Minister wrote to the liquidator requesting that he commence in principal negotiations with Elders Resources Limited on arrangements based on the Elders' proposal. He was also asked to negotiate a comprehensive agreement covering "the assets, of both the Commonwealth and the Phosphate Mining Corporation of Christmas Island, which will be required for further mining".
The applicants have instituted these proceedings under the Administrative Decisions (Judicial Review) Act 1977 and seek "judicial review" of the various decisions of the first and second respondents, including the decision of the first respondent:
"(a) to assess and make recommendations in relation to
proposals to recommence phosphate mining on Christmas Island.
(b) to choose the proposal of Elders Resources Limited.
(c) to recommend the proposal of Elders Resources Limited to the Second Respondent."
Review is also sought of decisions of the second respondent which include:
(a) To request the First Respondent to assess and make
recommendations in relation to the recommencement of phosphate mining in Christmas Island.
(b) To accept the recommendation of Elders Resources
Limited by the First Respondent.
(c) To request the First Respondent to enter
negotiations with Elders Resources Limited.
The respondents have each filed a notice of objection to competency, raising in broad terms the question whether the impugned decisions were decisions at all for the purposes of the ADJR Act and if so, whether they were decisions made under an enactment. The hearing of the objection has proceeded largely on the basis of an agreed statement of facts and certain other documents tendered without objection.
However in the course of the hearing of the objection, counsel for the applicants has called for the production of the first respondent's report. Counsel for the respondents objects to produce it on the basis that its content is not relevant to the characterisation of the impugned decisions and that it is, in any event, confidential and includes sensitive matter going to the various proposals that were tendered.
The questions raised on the objection as to competency require me to determine with some precision the decisions said to have been made, whether they are decisions in the relevant sense and whether it can be said that they were made under enactments. As I understand the thrust of the respondents' argument so far, they say that in making the recommendations to the Minister the liquidator acted in a role that was outside the statutory framework of his powers and duties as liquidator. Plainly the relationship between the recommendatory role and the decision that the liquidator has to make in relation to the disposal of assets, are linked and it may be a matter for debate before me whether the two functions, if there are two functions, can or have merged at some point.
For the moment it seems to me that it may be important for the Court to see the precise expression of and basis for the liquidator's recommendation. That does not mean it will be necessary for the whole report to be used or disclosed, but the parties should have an opportunity to put argument on the relevance of its content to the matter now in issue.
I propose therefore to direct that the respondents produce the report to the Court and to counsel for the applicants on the basis that it remain confidential to them. The question of the use of any particular parts of the report in evidence can be argued in the course of addresses and I will rule upon that as part of my decision on the question of competency. I propose therefore to direct in the following terms:-
1. The second respondent do produce to the Court and to counsel for the applicants a copy of the first respondent's report submitted to the second respondent under cover of a letter dated 23 June 1988.
2. Counsel for the applicants are directed until further order that they not make or permit to be made further copies of the report nor to disclose its contents or any part thereof to any other party including their clients without the leave of the court.
It may be necessary for indirect reference to be made to the contents of the report in argument on the hearing of this objection. Should a more detailed reference be required, then the question of whether that portion of the argument should be held in confidence can be dealt with.
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