Barron v Cth Department of Health and Ageing
[2003] FMCA 534
•28 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARRON v CTH DEPARTMENT OF HEALTH & AGEING | [2003] FMCA 534 |
| ADMINISTRATIVE LAW – Application for review under Administrative Decisions (Judicial Review) Act 1977 – compensation claim – whether decision made under an enactment – whether Estimates Memorandum and Finance Circulars issued under an enactment – documents simply provide advice and have no legislative basis – summary dismissal where no decision under an enactment before the Court. |
Administrative Decisions (Judicial Review) Act 1977, ss.3, 3(1), 3A, 5
National Health Act (Cth) 1953
Financial Management and Accountability Act (Cth) 1997, s.33
Airlines Agreement Act (Cth) 1981
Federal Magistrate Court Rules 2001, O.13
Chittick v Ackland (1985) 53 ALR 143
Evans v Friemman (1981) 35 ALR 428
Ansett Industries v Secretary Department of Aviation (1986) 70 ALR 743
Taylor v Ansett Transport Industries (1987) 18 FCR 342
| Applicant: | IAN WILLIAM BARRON |
| Respondent: | COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING |
| File No: | WZ71 of 2003 |
| Delivered on: | 28 November 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 7 July 2003 |
| Date of Last Submission: | 18 August 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr M. McPhee |
| Solicitors for the Applicant: | Michell Sillar & McPhee |
| Solicitor for the Respondent: | Mr T. Carey |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 17 April 2003 be dismissed.
The Applicant pay the Respondent’s costs (including reserved costs if any) pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 71 of 2003
| IAN WILLIAM BARRON |
Applicant
And
| COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed 17 April 2003 Ian William Barron (the Applicant) has made a claim purportedly arising out of the Administrative Decisions (Judicial Review) Act 1977. In his application the Applicant refers to a decision of the Commonwealth Department of Health and Ageing (the Respondent) dated 16 March 2003 not to award the Applicant compensation under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme (the decision).
In seeking to set aside the decision the Applicant refers to the following grounds:-
(a)The Decision by the Respondent involved an error of law; namely that the Respondent decided that Compensation for Detriment Caused by Defective Administration (CDDA) Scheme had no application, when as a matter of law the Scheme did apply, it being a Scheme to provide compensation for Applicants injuriously affected by erroneous or defective administration of the relevant legislation, in this case, the National Health Act (Cth) 1953 and the regulations made thereunder in relation to the decision of August 2001 to approve or not to approve the proposed relocation of the pharmacy known as Sargents Chemist Inglewood;
(b)In the alternative, the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, the error being that the Respondent decided that the Health Insurance Commission (HIC) officers were responsible and the Australian Community Pharmacy Authority not responsible notwithstanding that the delegation by the secretary of its power to approve recommendations under the National Health Act Cth 1953 to the HIC.”
In his application apart from seeking a review of the decision the Applicant in the alternative seeks an order declaring that he is entitled to compensation under the CDDA scheme and a direction as to the entitlement and manner of assessment of compensation.
The Applicant has supported his application with an affidavit sworn
17 April 2003. It is useful to refer to that affidavit as it provides the background material to this claim. Annexure A to the affidavit provides the following:
“2.On 27 November 2002 my accountant, Christopher Higham lodged on my behalf a Claim for CDDA compensation with the Respondent.
3.I was advised in writing by a letter dated 16 March 2003 which was received by me on 21 March 2003 that my application for compensation was refused. Attached hereto and marked “IB1” is a copy of that letter.
4.The background to my application is as follows:
(a)“Sargents Chemist Inglewood” relocated its business from Unit 2, 898 Beaufort Street, Inglewood to Unit 1, 898 Beaufort Street, Inglewood on 22 August 2001.
(b)This relocation is inconsistent with the rules which must be adhered to by the Australian Community Pharmacy Authority (“ACPA”) in determining whether or not to recommend an application for approval to relocate the pharmacy. In particular, pursuant to Section 90 of the National Health Act (Cth) 1953 approval for relocation by a pharmacist must be obtained. A recommendation to approve an application for relocation for a period of two (2) years.
(c)In my belief, the decision by the Australian Community Authority to recommend that the said relocation be approved is not in accordance with the relevant rules, namely the Pharmaceutical Benefits Determination (PB 8 2000) made pursuant to section 99(L)(1) of the National Health Act (Cth) 1953 because:
(i) The premises from which the applicant relocate were not in continuous use for two years; and or alternatively
(ii) The move was within two kilometres from the previous location of the subject pharmacy.
(d)As a direct result of this decision I suffered loss and damage and applied for compensation due to the losses that have been incurred by me as a result of the approval given to Sargents Chemist Inglewood to relocate.
5.I have been advised by letter the basis for refusing my application was the Health Insurance Commission is an authority that falls within the Commonwealth Authorities and Companies Act 1997, and the HIC provided erroneous advice to the ACPA Secretary and the ACPA was not an authority falling within the CDDA Scheme.
6.It is my submission the ACPA is not an authority that operates under the Commonwealth Authorities and Companies Act 1997; and that the CDDA scheme does apply to my application.
7.I verily believe that the basis for refusing compensation to me was incorrect. In particular, HIC referred the application to the ACPA who considered the same and wrongly recommended the application be approved. The HIC (acting as the delegate of the Secretary upon powers delegated to the Secretary) then considered the recommendation and approved the application pursuant to section 90(3B) of the National Health Act. The recommendation to approve the relocation was an error, and as a result, the approval was an error.
8.I also made an application to the Commonwealth Ombudsman to review the decision of the ACPA and they refused to investigate the same on the basis that I had already made enquiries with the ACPA itself.
9.In these circumstances I respectfully request that the decision to refuse the compensation be reviewed and orders be granted in terms of the application filed herein.”
On 15 May 2003 the Court made orders after a video link hearing that the Respondent should file and serve any application for summary dismissal together with an outline of submissions and list of authorities on or before 29 May 2003. The Applicant was ordered to file and serve an outline of submissions in reply together with a list of authorities on or before 19 June 2003 and the application for summary dismissal otherwise listed for hearing by audio link on 7 July 2003.
In the Response filed 29 May 2003 the Respondent sought an order that the application be dismissed and that the Applicant pay the Respondent’s costs of the application. The basis of the orders sought were stated to be as follows:-
“The application is brought pursuant to the Administrative Decisions (Judicial Review) Act, in respect of a decision not to award the Applicant compensation under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme. The CDDA Scheme is not a statutory scheme, and therefore any decision in respect of an application for compensation under the Scheme is not a ‘decision under an enactment’ which is a pre-requisite for any application under the Administrative Decisions (Judicial) Review Act.”
The Respondent relied upon an Affidavit of Narelle Kendra Smith sworn 29 May 2003. In her affidavit Ms Smith annexes correspondence she had received from Mr Guy Verney of the Department of Finance Administration which addresses the origins and operations of the compensation scheme with an enclosed copy of an Estimates Memorandum 1995/42. Ms Smith deposes as follows:-
“4.The current guidelines for the operation of the Compensation Scheme are set out in Attachment B to Finance Circular 2001/01 issued by the Department of Finance and Administration (which Finance Circular is mentioned by Mr Verney in his letter). Annexed and marked “NKS2” is a copy of that document. On the basis of my enquiries, I believe that there is no other set of rules or guidelines, and in particular, none in any statute or delegated legislation, governing the operation of the Compensation Scheme.”
The Estimates Memorandum 1995/42 annexed to the affidavit of Ms Smith provides the following under the heading ‘Background’ –
“On 23 October 1995, in response to the Minister for Finance’s Cabinet Submission titled “Types of Gratuitous Payments no longer to be made as Act of Grace Payments, Cabinet Agreed, inter alia, to the establishment of a scheme for “Compensation for detriment caused by defective administration” to be administered by each Minister for the agencies under his or her control, which would be funded through the appropriations for each agency, as and when required. Requests for payments for this purpose were previously considered in the act of grace context by the Minister for Finance, this Department, or in the case of compensatory payments recommended by Ombudsman, by Departmental Secretaries. In taking its decision, Cabinet also acknowledged that future requests for compensation for the effects of defective administration would no longer be considered under the act of grace arrangements.”
It is also relevant in my view to refer to the following paragraph under the heading ‘The Mechanics of Funding’ which appear in the Memorandum. Paragraph 12 under that heading provides the following:-
“Accordingly, on the first occasion that approval is given by the decision-maker in an agency to a payment under the scheme, this will probably require the agency to seek the creation of an Appropriation Act item and may require recourse to the Advance to the Minister for Finance (AMF) to allow the payment or payments to occur in reasonable time. However, as the issue of AMF is subject to availability and satisfying the criteria set down by Parliament, approval to the issue of AMF must be obtained prior to giving any commitment to an intended recipient.”
Attachment B to the Finance Circular 2001/01 referred to in paragraph 4 of Ms Smith’s affidavit provides the following useful extracts:-
“What is the CDDA scheme?
3.CDDA is administrative scheme, established in October 1995, to enable Commonwealth agencies to compensate persons who have been adversely affected by the ‘defective’ actions or inaction of such agencies, but who have no other avenues to seek redress.
4.These guidelines encompass the Government approved framework (ie definitions, criteria and limitations) for CDDA as originally set out in Estimates Memorandum (EM) 1995/42. As such, these guidelines repeal and replace EM 1995/42 with effect from the date of the covering Finance Circular 2001/01.
5.These guidelines describe the CDDA scheme and set out the steps that a decision maker should take in considering whether to compensate a claimant. Factors described in the guidelines to be taken into account when making a decision are not checklists and each case must be determined on its own merits. Care should be taken to ensure that the principles of natural justice are applied to CDDA matters to ensure that claimants are treated equitably.”
In the same document under the heading ‘Funding and Reporting’ the following paragraph appears:-
“54.In general, CDDA payments should be funded through Departmental Appropriations and reported under an appropriate agency outcome. However, if any part of a CDDA payment can be settled under statutory entitlement provisions, then it should be paid from the relevant Administered Appropriation and report under the associated outcome.”
When the matter came before the Court on 7 July 2003 the Court had before it the Respondent’s outline of submissions in support of an application for summary dismissal filed 29 May 2003, the Applicant’s outline of submissions in opposition to the application for summary dismissal together with a list of authorities filed 19 June 2003 and the Respondent’s submissions in response to the Applicant’s outline of submissions filed 3 July 2003.
Orders were made by the Court on 7 July 2003 requiring the Respondent to file and serve further submissions in writing in relation to the Finance Circular 2001/01. That arose from a suggestion by the Applicant’s solicitors that Attachment A of the Finance Circular had not been included previously in the papers before the Court. The Court made further orders on 7 July 2003 that the Applicant should file further submissions in relation to the Finance Circular and permitted the Respondent to file and serve a reply. The Court then ordered that the decision of the Court would be reserved and the issue determined upon the further submissions in writing combined with the oral submissions made to the Court on 7 July 2003. Subsequently the Respondent filed submissions dated 28 July 2003 in relation to the Finance Circular. The Applicant filed supplementary outline of submissions on 11 August 2003 with the Respondent’s submissions in reply filed 18 August 2003.
Respondent’s submissions
It was submitted by the Respondent that the Application should be dismissed summarily. It was submitted that the application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and it is a pre-requisite of any application pursuant to that Act that the decision sought to be reviewed must be made under an ‘enactment’.
Section 3 of the ADJR Act provides the following relevant definitions:
“Decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1.
‘Enactment’ means subject to section 3A:
(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self Government) Act 1978;
(b) …
(c) an instrument (including rules, regulations or by-laws) made under such Act or under such an Ordinance;
(d) …
and, for the purposes of paragraphs (a), (b) or (c) includes a part of an enactment.”
It is common ground that the classes of decisions set out in Schedule
1 do not apply to the present application.
In support of its application for summary dismissal the Respondent submitted that in general terms the type of ‘enactment’ pursuant to which a decision must have been made is an act or rules, regulations or by-laws made under an act. The CDDA scheme it was submitted is an administrative scheme established to enable the Commonwealth Agencies to compensate persons effected by ‘defective’ actions by Commonwealth Agencies and who have no other avenues to seek redress. As indicated earlier it was established in October 1995 by virtue of a Cabinet decision. The guidelines governing the operation of the Scheme are set out in the Attachment to the Finance Circular issued by the Department of Finance and Administration.
It was submitted that there was no legislative basis for the compensation scheme much less any decision on an application for compensation pursuant to that scheme and the court was otherwise referred to the details set out in the affidavit of Narelle Smith sworn
29 May 2003.
In brief terms it was therefore submitted that the Court has no jurisdiction to deal with a matter, there is no reasonable cause of action and/or the proceeding is frivolous and accordingly the application should be dismissed either for want of jurisdiction and/or pursuant to Order 13 Rule 11 of the Federal Magistrate Court Rules.
The main thrust of the Respondent’s submissions was that in the present case the decision communicated by letter dated 16 March 2003 whereby the Applicant’s claim for compensation pursuant to the Compensation for Detriment Caused by the Defective Administrative scheme is rejected is not a decision under any enactment as required by the ADJR Act. Whilst it was conceded during the course of oral submissions that any payment had to be the subject of an Appropriation Act it was submitted that that is not the same as a decision being made under that Act of a kind which would attract the court’s jurisdiction under the provisions under the ADJR Act.
Applicant’s submissions
The Applicant submitted the definition of ‘enactment’ in s.3 of the ADJR Act extends to include an ‘instrument’ pursuant to s.3(1)(c) of the Act. Reference was made to the decision of the Full Court of the Federal Court in Chittick v Ackland (1984) 53 ALR 143. In that case Mr Ackland had sought a review of two decisions made by Mr Chittick a manager of the Health Insurance Commission whereby Ms Ackland was suspended and then dismissed from service of the Commission. At page 153 of the Court’s decision in Lockhart and Morling JJ state the following:
“In our opinion for a document to answer the description of an instrument made under an Act or an Ordinance it must first be a document made “under” an Act or an Ordinance. The word “under”, in the context of the Judicial Review Act, means “in pursuance of” or “under the authority of”: see Evans v Friemann (1981) 35 ALR 428 per Fox J (at 436) and Australian National University v Burns. Supra, per Bowen CJ and Lockhart (at 31). Both their Honours pointed out in Burns case (at 31 the difficulty lies in applying the word “under” to particular circumstances. Further, for a document to be an instrument for the purposes of s 3(1) it must be a document under which decisions of an administrative character may be made”
…
We agree with the following passage from the judgment of Ellicot J in Burns v Australian National University (1982 40 ALR 707 (at 716-7) with which Bowen CJ and Lochhart J agreed on the appeal:-
‘The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to exercise will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where a particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made ‘under an enactment’ or otherwise.’
As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a king that it has the capacity to affect legal rights and obligations. It seems to us that if a document has such capacity it should be regarded as an instrument for the purposes of that Act.”
It was submitted that the word ‘under’ has been held to mean ‘in pursuance of’ or ‘under the authority of’ (see Evans v Friemann (1981) 35 ALR 428 at 436).
The Applicant submitted that the decisions answer the description of a decision of an administrative character made under an enactment within the meaning of the ADJR Act on the basis the document comprising the scheme namely the “Estimates Memorandum 1995/42” (including Attachments A and B updated by Finance Circular 2001/01) falls within a definition of an ‘instrument’ and accordingly is an ‘enactment’ pursuant to the Act.
In dealing with the issue of whether the document is made under an Act or Ordinance it was submitted that the power to award compensation under the CDDA scheme was made pursuant to or under the authority of the ‘Act of Grace’ which was power derived by s.33 of the Financial Management and Accountability Act (Cth) 1997. Accordingly it was submitted that the substantial basis upon which the power to award compensation under the scheme is established by the provisions of that legislation. It was further submitted that under the scheme authority for payments are created by an appropriation for each agency included in the Appropriation Bill (No.1) for each relevant year with the relevant agency being the Respondent in the present case.
It was further submitted that the terms of the decision in this application clearly have the capacity to effect the rights and obligations of a person making a claim under the CDDA scheme. The Respondent by setting out the terms and limitations of the scheme has brought into existence a document that is an instrument according to the Applicant’s submissions. A legal obligation has been affected by the obligations imposed on any claimant under the DDA to satisfy the Minister or official authorised by the Minister to approve payments under the Scheme for the reasons set out under the heading ‘General’ in Attachment A applicable to the claim. It was further submitted that the legal rights of any claim under the Scheme are affected by the permissive nature of the Scheme which allows the Minister or official authorised by the Minister not to award a payment in any particular case on the basis of the limitations set out in Attachment A.
Reference was made to the decision of Ansett Transport Industries v Secretary Department of Aviation (1986) 70 ALR 743. In the Ansett Transport Industries Limited case Lockhart J held that a decision of the Secretary of the Department of Aviation deciding that he is not satisfied that their services operated by the Airline were not predominantly used for the carriage of passengers was a decision of an administrative character within the meaning of s.3(1) of the ADJR Act. The two airlines agreement in that case was held to be an instrument within the meaning of that section because it had the capacity to effect legal rights and obligations. It was held the decision of the Respondent was therefore made “under an enactment” within the meaning of s.3(1)(c) of the ADJR Act. It should be noted however that in that case the two airlines agreement was made pursuant to a schedule to the Airlines Agreement Act 1981 (Cth).
It was submitted that the summary application should be dismissed and the application permitted to proceed.
Respondent’s further submissions in reply
By way of response to the Applicant’s submissions the Respondent both in writing and before the Court noted that the Applicant’s submissions had ignored the origins of the CDDA scheme which is not part of the act of grace powers. Reference was made to the October 1995 decision of Federal Cabinet that the effective new scheme would be administered by each Minister for the agencies under his or her control and not by the Minister for Finance under the act of grace regime. The Estimates Memorandum notes that devolution of Minister of Finance acts of grace powers to Agency Heads had been terminated. It was otherwise submitted that the estimates memorandum is not an instrument of a kind referred to in the definition of ‘enactment’ under s.3(1)(c) of the ADJR Act because it was not made under any Act but rather an order to give effect to the October 1995 Cabinet decision. It could not be said that the decision has been made under “the Appropriation Act” but rather the funding for the decision is provided by that Act. If the Court decides that there is no decision under an enactment then the Respondent submitted that it becomes a moot point as to whether a current decision affects legal rights and obligations of the Applicant.
When given an opportunity to make further submissions specifically in relation to the Finance Circular 2001/01 the Respondent submitted that the only relevance of that Circular is it now contains a repository for the guidelines for agencies on the operation of the CDDA scheme and not the Estimates Memorandum. Like the Estimates Memorandum it was submitted the Finance Circular is not an instrument of a kind referred to in a definition of ‘enactment’ under s.3(1)(c) of the ADJR Act because again it is not made ‘under any act’. The Circulars it was noted like the Estimates Memoranda simply provide advice regarding Commonwealth policy and can be amended without any need for legislative fiat nor parliamentary process. They have no legislative basis and it was noted have not been included in the Federal Registry of legislative instruments which is a recent exhaustive registry of all legislative instruments compiled as part of a review for the purposes of the Legislative Instruments Bill 2003.
By way of written supplementary submissions filed 11 August 2003 the Applicant sought to broaden the term ‘instrument’ and argued it is not confined to an instrument of legislative character and otherwise relied upon the cases to which reference has already been made namely, Chittick and Ansett Transport Industries. Inclusion of the instrument in the proposed register under the Legislative Instruments Bill did not make the current decision one which could not be reviewed under s.5 of the ADJR Act according to the Applicant’s further submissions.
Reasoning
In my view the submissions made for and on behalf of the Respondent are clearly correct. The history of the scheme under which compensation may be payable is clearly one that apart from the financial arrangements which are available as a consequence of the Appropriations Bill in each relevant year the scheme is not otherwise subject to any legislative framework or enactment. There is no legislation which provides the basis upon which a decision could be made, for example, by setting out criteria or powers vested in authorised officers to make the decision. There is clearly no decision which could be said to be made under any provision of any enactment. Whilst I accept that there is authority which would encourage the Court to adopt a broad meaning of ‘instrument’ within the meaning of s.3(1) of the ADJR Act I do not consider that the Full Court decision in Ansett Transport Industries applies in the present case. In that case the Court considered the two airlines agreement which has been specifically provided by way of a Schedule to the Airlines Agreement Act 1981.
Hence in my view the decision sought to be reviewed in the present case could not be said to be a decision “under an enactment”. Unlike the Ansett Airlines case to which I have referred and interestingly noting the further consideration of the matter in Taylor v Ansett Transport Industries (1987) 18 FCR 342, there is no legislation in the present case contemplating the making of a decision under a specific Act.
I do not regard the Finance Circular or Estimates Memorandum as being instruments of a kind which would fall within the definition of ‘enactment’ under s.3(1)(c) of the ADJR Act. Both documents are clearly not made under any act. I accept the submissions of the Respondent that those documents simply provide advice regarding Commonwealth policy and have no legislative basis.
In considering an application for summary dismissal I am mindful of the fact the courts are cautious when exercising the power of summary dismissal. Summary dismissal is a matter which should be approached with caution and used sparingly. In particular I note the judgment of Barwick CJ in General Steel Industries at p.129 as follows:-
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
Whilst the Applicant has advanced arguments in opposition to the summary dismissal claim that does not mean that there is therefore an arguable case. The fundamental flaw in the Application is that the decision sought to be reviewed cannot be described as an instrument of a kind referred to in the definition of ‘enactment’ pursuant to s.3(1)(c) of the ADJR Act. That fundamental flaw in my view leads the court to the conclusion that the Applicant does not have any arguable case. Applying the principles in relation to summary dismissal to which
I have referred the appropriate order of the court is that the application be dismissed.
It is clear to me that if there is no decision made under an enactment pursuant to s.3 of the ADJR Act then the Court does not have jurisdiction to consider the matter further. Hence the Court does not have jurisdiction and in the circumstances it is appropriate to proceed under Rule 13 of the Federal Magistrates Court Rules to dismiss the Application.
The orders of the Court will therefore be as follows subject to any further submissions on the issues of costs:
(1)The Application filed 17 April 2003 be dismissed.
(2)The Applicant pay the Respondent’s costs (including reserved costs if any) pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 November 2003
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