Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy

[1992] FCA 351

JUDGMENT No. ...3.s..1.../ .?L,.

FEDERAL COURT OF AUSTRALIA	1	No. QG 118 of 1991
QUEENSmD DISTRICT	1
GENERAL DIVISION	1

BETWEEN:

MICHAEL RUSSELL MARK BROADBENT

FIRST APPLICANT

m:

MONTCHEL PTY. LTD.

SECOND APPLICANT

m:

CIVIL AVIATION AUTHORITY

RESPONDENT

MINUTES OF ORDERS

01 JUN 1992

JUDGE MAKING ORDER:	Drummond J	FEDERAL COURT OF
DATE OF ORDER:	14 May, 1992	AUSTR4LIA PRINCIPAL
WERE MADE:	Brisbane	REGISTRY
THE COURT ORDERS THAT:

1. Those of the further and better particulars filed by the applicants on 27 March, 1992 which are the subject of the respondent's application for striking out will be struck out, but subject to Mr. Mogg first filing and serving by 28 May, 1992 an affidavit deposing to his not being aware of statements made by officers of the respondent prior to the time he made the decision of 28 March, 1991, which statements are referred to in the particulars.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1. The respondent's application to strike out the particulars will stand as dismissed unless the affidavit of Mr. Mogg is flled by 28 May, 1992.

3 .        The costs of today are reserved to 11 June, 1992.

1. The matter is adjourned for further directions to Thursday, 11 June, 1992 at 9.45 a.m..

FEDERAL COURT OF AUSTRALIA	1	NO. QG 118 of 1991
QUERNSTsAND DISTRICT	)
GENERAL DIVISION	)

BETWEEN:

MICHAEL RUSSELL MAM BROADBENT

FIRST APPLICANT

AND:

MONTCHEL PTY. LTD.

SECOND APPLICANT

AND:

CIVIL AVIATION AUTHORITY

RESPONDENT

Coram:	Drummond J
Date:	14 May, 1992

Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

By an application filed on 9 September, 1991 the

applicants seek to have reviewed a decision by the respondent

chief pilot of the second applicant. The grounds in the	rejecting the first applicant's application for approval as
application for review include allegations of a breach of the rules of natural justice and improper exercise of power.
Further and better particulars have been delivered which expand on those contained in the application. It is clear from those particulars that a case of extensive bias is sought to be made out. I say a case of extensive bias, however, it needs to be acknowledged that it is common ground between the parties that the decision maker, Mr. Mogg, is an of flcer of the respondent, so that, and this again is common ground, it is the decision of Mr. Mogg rejecting the
.	application of the first applicant that has to be shown to be bad before the applicants can succeed.

The case is attended by some unusual features insofar as what is particularised is a series of allegations that, among other things, a number of officers of the respondent other than Mr Mogg have from time to time made statements which can be said to show, if they are established, bias against the first applicant. The names of these officers are listed in paragraph 6(a) of the applicants' further and better particulars filed 27 March, 1992. It is somewhat unusual that there are allegations that so many officers of the respondent (who, I understand from what I was told from the bar table, are officers located in the same region as Mr.

Mogg) exhibited bias against the first applicant.

The case is also somewhat surprising insofar as there is an allegation that the respondent's own chairman expressed some concern about the way the first applicant's application was dealt with. That is briefly noted in paragraph 3(a)(xvi) of the particulars.

The core objection taken by the respondent to the particulars, insofar as they rely upon statements made by officials of the respondent, other than Mr. Mogg, which statements exhibit what might be said to be bias against the first applicant, is that there is no allegation that any of

. those statements by other officials was, within the knowledge of Mr. Mogg, prior to the time he made his decision.

That is a substantial objection. However, because of the unusual features of the case that I have referred to, namely the range of officials who are alleged to have made biased statements against the first applicant, and the allegation that the respondent's own chairman appears to have expressed some concern at the way the first applicant was treated, I propose to make the following orders:

1.   Those of the further and better particulars filed by the applicants on 27 March, 1992 which are the subject of the respondent's application

subject to Mr. Mogg first filing and serving by for striking out will be struck out, but

28 May, 1992 an affidavit deposing to his not being aware of statements made by officers of the respondent prior to the time he made the decision of 28 March, 1991, which statements are referred to in the particulars.

2.    The respondent's application to strike out the particulars will stand as dismissed unless the affidavit of Mr. Mogg is filed by 28 May, 1992.

I certify that this and the three
preceding pages are a true copy
of the reasons for judgment

herein of the Honourable

Mr. Justice Drummond.

Associate: P?" Date : 14 May, 1992