Bidjara Aboriginal Housing and Land Co Ltd v Sharma
[2004] FCA 994
•30 JULY 2004
FEDERAL COURT OF AUSTRALIA
Bidjara Aboriginal Housing & Land Co Ltd v Sharma
[2004] FCA 994
PRACTICE AND PROCEDURE – pleadings – leave to amend originating application – judicial discretion – leave granted on several previous occasions – lapse of previous leave due to inaction of application – leave sought to amend generally and join respondents – whether necessary parties
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Appropriation Act (No 1)2003-2004 (Cth)
Financial Management and Accountability Act 1997 (Cth)Australian Tape Manufacturers Association Ltd v Commonwealth of Australia (1990) 94 ALR 641 (HC)
Castlemaine Perkins Limited v Queen Street Hotels Pty Ltd [1968] Qd R 501
Phillips v Phillips (1878) 4 QBD 127
Davy v Garrett (1877) 7 Ch D 473
Wootton v Sievier [1913] 3 KB 499 (CA)BIDJARA ABORIGINAL HOUSING & LAND COMPANY LIMITED v CHANDRA SHARMA, ABORIGINAL AND TORRES STRAIT ISLANDER SERVICES AND ROD ALFREDSON
Q113 OF 2003COOPER J
BRISBANE
30 JULY 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q113 OF 2003
BETWEEN:
BIDJARA ABORIGINAL HOUSING & LAND COMPANY LIMITED
APPLICANTAND:
CHANDRA SHARMA
FIRST RESPONDENTABORIGINAL AND TORRES STRAIT ISLANDER SERVICES
SECOND RESPONDENTROD ALFREDSON
THIRD RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
30 JULY 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The applicant is granted leave to adduce evidence relating to the acquisition and operation of the premises at 51 Wills Street, Charleville, Queensland on the hearing of the substantial application.
2. Otherwise, the notice of motion filed 19 April 2004 is dismissed.
3.The applicant to pay the costs of the respondents to the notice of motion, including reserved costs, to be taxed if not agreed.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q113 OF 2003
BETWEEN:
BIDJARA ABORIGINAL HOUSING & LAND COMPANY LIMITED
APPLICANTAND:
CHANDRA SHARMA
FIRST RESPONDENTABORIGINAL AND TORRES STRAIT ISLANDER SERVICES
SECOND RESPONDENTROD ALFREDSON
THIRD RESPONDENT
JUDGE:
COOPER J
DATE:
30 JULY 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 24 July 2003, the applicant filed an application for an order of review. The decisions in respect of which judicial review was sought are identified in pars A and B of the application. The respondents to the application were Chandra Sharma, the first respondent, the Aboriginal and Torres Strait Islanders Services (‘ATSIS’), the second respondent, and Rod Alfredson, the third respondent.
It was alleged that the first or second respondent made a decision on or about 14 July 2003 (‘the first decision’), that the second respondent would offer a grant to the applicant subject to certain particulars set out in par A(a) of the application. It was alleged that the third respondent made a decision on or about 23 May 2003 (‘the second decision’), that the applicant produce for inspection the documents identified in par B(a) of the application. Finally, it was alleged that the third respondent made a decision on or about 16 July 2003 (‘the third decision’), that the applicant produce to the persons authorised by the third respondent the documents specified in par B(b) of the application.
On 20 August 2003, the respondents filed a notice of objection to competency of the Court entertaining the application on the grounds that the decision in par A(a) was not a decision made under an enactment and thus not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’), and that 28 days from the decision pleaded in par B(a) had expired and was thus not reviewable under the ADJR Act.
On 22 December 2003, the respondents sought further and better particulars of the grounds relied upon by the applicant as entitling it to the relief claimed. On 4 February 2004, the applicant filed a document which purported to be the relevant particulars.
On 19 February 2004, the Court ordered that the applicant file and serve an amended application which was properly particularised. It also gave leave to file and serve an amended application joining Wayne Gibbons as a fourth respondent without prejudice to his right to apply to be dismissed as a party. The applicant failed to file and serve an amended pleading within the time specified in the order and failed to serve Mr Gibbons. In consequence, the leave to join him as a party lapsed.
On 9 March 2004, the Court ordered that within seven days the applicant file and serve an amended application which was properly particularised, and again gave leave to file and serve an amended application within seven days joining Mr Gibbons as a fourth respondent without prejudice to his right to apply to be dismissed as a party to the proceedings. The applicant again failed to file and serve an amended pleading within the time specified in the order.
On 19 March 2004, the applicant filed a document which purported to be an amended application for review which sought to include the Commonwealth of Australia as part of the second respondent, add Mr Gibbons as a fourth respondent and the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) as a fifth respondent. The applicant did not have the leave of the Court to join the additional parties; nor did it have leave to amend the application to seek review of a decision alleged to be constituted by a failure to make a decision on or about 16 July 2003 not to withdraw the decision of 23 May 2003.
On 19 April 2004, pursuant to an order of the Court made on 6 April 2004, the applicant filed a notice of motion wherein it sought, among others, the following orders:
‘1.The applicant have [sic] may further amend the application for an order for review in terms of the application Exhibit “FJ1” as set out in the affidavit of Guillaume Francois Jongkind in support of this motion.
2.The applicant may add the following parties to the application for an order for review:
a.the Commonwealth
b.the Minister for Immigration and Multicultural and Indigenous Affairs
c.Mr Wayne Gibbons; and,
d.the Aboriginal and Torres Strait Islander Commission.’
The leave to amend is resisted by the respondents. Each of the proposed respondents, other than the Commonwealth of Australia in lieu of ATSIS, opposes the joinder sought.
The applicant seeks to join the Minister and the Commonwealth collectively, with ATSIS as the second respondent. It also seeks to join Mr Gibbons as the fourth respondent and ATSIC as the fifth respondent.
In the proposed amended application the applicant wishes to plead that the first, second, fourth and/or fifth respondents made the first decision. It wishes to substitute an alleged failure or refusal, on or about 16 July 2003, to withdraw the notice to produce given on 23 May 2003 as the second decision, in lieu of the second decision originally pleaded in par B(a) of the application. It also wishes to add reasons in pars 1 and 2 as to why it is aggrieved with the three decisions and to add proposed pars 1(b1), (b2), (b3), (e), 2(a)(iv), (v), (vi), 2(b), 3, 3(d), 4(d), particulars (i) to (v) inclusive, 5, 6 and 7 and add new prayers for relief in paras 5, 6, 6A and 7, and amend prayers 1, 3 and 11 to include the proposed fifth respondent.
The first decision is contained in a letter dated 14 July 2003 from Mr Sharma to the applicant. Mr Sharma is the regional manager of the ATSIS Roma Regional Office in Queensland. In an affidavit filed on 5 April 2004, he deposes that he was the maker of the decision conveyed in his letter of 14 July 2003 to the applicant.
The applicant contends that the Minister is ‘the person ultimately responsible for’ the first decision, and was, on the material, involved in making decisions in the process which led to the decision of 14 July 2003.
Mr Alfredson is the Director of Evaluation and Audit in the Office of Evaluation and Audit created by s 75 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘the ATSIC Act’). The functions of the office are set out in s 76 of that Act. They include the carrying out of evaluations and audits when requested by the Minister as provided for in s 76. Mr Alfredson deposes that he received a Ministerial request by letter dated 20 March 2003 to conduct an audit of a number of corporations which included the applicant.
Section 78A of the ATSIC Act gives the Director of Evaluation and Audit powers in relation to the production and examination of documents relating to the body the subject of evaluation or audit, for the purpose of such evaluation or audit.
On 23 May 2003, Mr Alfredson, in his capacity as director in a letter of that date to the applicant pursuant to s 78A(5)(c) of the ATSIC Act, required the applicant ‘to produce documents in your possession or to which you have access that detail transactions for the “self-generated” accounts identified by KPMG’. There ensued a series of letters between the applicant and Mr Alfredson, which included a letter from the applicant dated 14 July 2003 requesting that Mr Alfredson withdraw his direction to the Acting Regional Manager of ATSIS to include in the Acting Regional Manager’s letter of offer of an ATSIS grant, the condition that full disclosure of all accounts be made to the Office of Evaluation and Audit by 31 July 2003. On 14 July 2003, Mr Alfredson replied to the applicant’s letter and stated that he had not given any direction to the Acting Regional Manager of the ATSIS Roma Regional Office.
On 16 July 2003, Mr Alfredson gave a further notice pursuant to s 78A in the following terms:
‘43 ... Again, take notice that I require you to produce to the persons authorised by me all books of account and other financial records of the company for the years 1999/2000, 2000/2001, 2001/2002 and 2002/2003, including those documents which deal with grant/loan income. In particular I require you to produce the following documents to conduct the evaluation and audit:
§MYOB records which deal with grant/loan income;
§Cheque requisitions which deal with grant/loan income;
§Cheques and bank statements for the “self-generated” accounts which deal with grant/loan income; and
§Any other documents or information that concerns those grants, loans, and/or grant/loan income.
Take further notice that any person who fails to comply with such a requirement is guilty of an offence under subsection 78A(6) of the Aboriginal and Torres Strait Islander Commission Act 1989.
If you do not provide access to these documents within 7 days of the date hereof I will have no choice but to bring proceedings to enforce my right of access to these documents to the appropriate authorities for investigation and other action they deem necessary.’
(original emphasis)The applicant filed these proceedings on 24 July 2003.
The applicant contends that the Minister is a necessary party in respect of the second and third decisions, because he made the request of Mr Alfredson to conduct the audit of the applicant. It also contends that Mr Gibbons, as the Chief Executive Officer of ATSIC and ATSIS, ought to be joined as a party because he agreed with a proposal of Mr Alfredson made in a minute dated 21 March 2003 to engage KPMG for the reasons stated in the minute to carry out the audit of the companies the subject of the Minister’s request. It is further contended that a letter written by the Chairman of ATSIC to Mr Gibbons meant that Mr Gibbons was the person who made the decision to audit the applicant. The letter read as follows:
‘Mr Wayne Gibbons
ATSIC Chief Executive OfficerDear Mr Gibbons
At today’s Workshop, Commissioners asked me to seek urgent clarification on the following:
·The Board of Commissioners’ decision on the policy on self-generating funds;
·Your response to the letter from the Commission concerning actions resulting from Ms Caroline Joske’s correspondence to Minister Ruddock.
·The policy framework for funding Commissioners’ legal costs; and
·The current status of the defunding protocol for organisations.
I look forward to your response on the above matters.
Yours sincerely
GEOFF CLARK
25 July 2003’The applicant now wishes to contend that it was beyond the power of ATSIS to make the decision contained in the letter of Mr Sharma dated 14 July 2003, on the ground that the attempt to empower ATSIS to make grants and loans being a function of ATSIC under s 14 of the ATSIC Act was beyond the powers of the Commonwealth of Australia. That plea is sought to be raised in new pars 6 and 7 of the proposed amended application. Those paragraphs provide:
‘6.Further, the persons who made the First Decision did not have jurisdiction to make the First Decision in that they were not authorised by the enactment in pursuance of which it was purported to be made pursuant to section 5(j) of the Administrative Decisions (Judicial Review) Act 1977, in that they were making a decision which was outside of the powers of ATSIS and or was not authorised by the ATSIC Act or any enactment of the Commonwealth and or was contrary to the ATSIC Act in that the decision was purported to be made by ATSIS and not ATSIC in that:
(a)Functions of ATSIC, in particular, those under section s7, 14 and 15 of the ATSIC Act, were purportedly transferred to ATSIS an executive agency of the Commonwealth as from 1 July 2003 to ATSIS, an executive agency of the Commonwealth to perform tasks then performed by ATSIC under sections 14, 15, 16, and 17 of the ATSIC Act.
(b)The ATSIC Act contains no provision for taking away from ATSIC and conferring on ATSIS a function conferred by the Act on ATSIC.
(c)Further, they were functions imposed upon ATSIC by statute which could not otherwise be lawfully delegated to any other body or agency.
(d)ATSIS and its officers therefore have no power to carry out any of ATSIC’s functions.
(e)Accordingly, none of the First, Second, Fourth and Fifth Respondents had the power to make the First Decision
(f)Further, no lawful decision at all has been made by ATSIC.
(g)the First Decision was made by ATSIS which did not have the power to make it.
7.Further, the purported transfer of functions under section 7, 14, 15 16 and 17 of the ATSIC Act from ATSIC to ATSIS was unlawful and outside the powers of the Commonwealth in that:
(a)The Applicant repeats sub-paragraphs (a) to (d) of paragraph 6, above.
(b)Funds appropriated to ATSIS under the Appropriation Act (No 1) 2003-2004 could not be expended for the purposes of sections 14, 15, 16, and 17 of the ATSIC Act.
(c)ATSIS and its officers therefore have no power to carry out any of ATSIC’s functions.’
The applicant submits that for the purpose of advancing this claim the Commonwealth of Australia and ATSIC are necessary and proper parties.
Before proceeding further it is worthwhile to record that a party is a necessary party for the purposes of O 6 r 8 of the Federal Court Rules if it is required to ensure that all matters in dispute in the cause can be effectually and completely determined and adjudicated upon. That does not mean a party can be added simply because it is just and convenient to do so: Australian Tape Manufacturers Association Ltd v Commonwealth of Australia (1990) 94 ALR 641 (HC) at 644-645.
The application filed on 24 July 2003 seeks to invoke the jurisdiction of this Court under s 5 of the ADJR Act. That jurisdiction relates to decisions to which the ADJR Act applies. Such a decision is defined in s 3 of the ADJR Act:
‘decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d)a decision included in any of the classes of decisions set out in Schedule 1.
Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.’
An ‘enactment’ for the purposes of the ADJR Act is defined as:
‘enactment means:
(a) an Act, other than:
(i)the Commonwealth Places (Application of Laws) Act 1970; or
(ii)the Northern Territory (Self-Government) Act 1978; or
(iii)an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b)an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c)an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca)an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb)an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
(d)any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
Note: Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).’
(original emphasis)There is no suggestion in the present proceedings that pars (ca) and (cb) have relevant operation to the matters in issue. Accordingly, the proceedings to properly invoke the jurisdiction of the Court must identify a decision of an administrative character and the enactment under which it was made, proposed to be made or required to be made. Neither the existing application nor the proposed amended application indicates the relevant enactment under which the first decision was made or required to be made although it is clear from par 2 that it is alleged that the second and third decisions were purported to be made under s 78A(5)(c) of the ATSIC Act.
The material filed by ATSIC in opposing its joinder as a party contains a copy of the Agreement entered into between the Commonwealth of Australia (represented by ATSIS) and ATSIC, which agreement came into effect on 1 July 2003.
The background to the agreement is set out in the recitals which state:
‘A.By notice in the Gazette of 30 May 2003, Aboriginal and Torres Strait Islander Services was established as an executive agency as from 1 July 2003.
B.ATSIS has been given a number of functions including, delivering programs for Aboriginal and Torres Strait Islanders and providing policy advice and advocacy support to ATSIC.
C.ATSIC was established by Section 6 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the Act).
D.Some of the functions that ATSIC has to date carried out will from 1 July be performed by ATSIS and ATSIS will act as agent for ATSIC in relation to certain other functions of ATSIC.
E.Certain employees of ATSIC will also be transferred to ATSIS pursuant to s.72 of the Public Service Act 1999.
F.In order to enable these arrangements to be put into place smoothly and co-operatively, the parties have agreed to enter into this agreement which will set out both transitional arrangements and interim arrangements for the long term co-operation of both parties in relation to their functions.’
The agreement was to operate during the period 1 July 2003 to 31 October 2003.
Clauses 2, 3 and 4 of the agreement provided:
‘2 PURPOSE OF AGREEMENT
The purpose of this Agreement is to provide for the respective responsibilities of both ATSIC and ATSIS in relation to the matters set out in the Agreement both during the Transition Period and thereafter.
3 ACKNOWLEDGEMENT
The parties acknowledge that as from the Commencement Date ATSIS will carry out the functions given to ATSIS by the Order and that the performance of those functions will not form part of the Agreement.
4 PERIOD OF THE AGREEMENT
The Agreement will continue until such time as the Minister determines otherwise or the Parliament passes legislation which deals otherwise with the matters the subject of the Agreement.’
(original emphasis)
The Order referred to in clause 3 is the Order in Council establishing ATSIS published in the Gazette on 30 May 2003.
Clause 5 of that agreement provided:
‘5 AGENCY APPOINTMENT AND AUTHORISATION OF ATSIS
5.1.1 ATSIC hereby:
a)grants to ATSIS an authorisation under s.7(1A) of the Act to perform any functions that are to be performed under s.7(1)(a) of the Act by ATSIS under the Agreement; and
b)appoints ATSIS as its agent under s.10(2)(f) of the Act to act on its behalf in relation to other functions and powers that ATSIS is to perform on ATSIC’s behalf in accordance with the Agreement.
5.1.2The functions and powers which ATSIS performs under the Agreement pursuant to an authorisation or appointment as agent in accordance with clause 5.1.1 will be performed by Specified Employees.’
‘Specified employees’ is a term defined under the Transition Agreement. It means:
‘Specified Employees means those employees of ATSIS whom ATSIS nominates as the employees who will carry out the functions and powers which ATSIC has authorised ATSIS to perform under s.s.7(1A) of the Act or appointed ATSIS as its agent to carry out under s.10(2)(f) of the Act.’
The functions of ATSIS specified in the Gazette published 31 May 2003 included:
‘(i)to design and deliver programmes for Aboriginal and Torres Strait Islander persons;
. . .
(iii)to undertake research and develop and provide policy advice and advocacy support to the Aboriginal and Torres Strait islander Commission.
. . .
(vi)to undertake such other relevant tasks as the Minister may require from time to time.’
(original emphasis)
By s 14 of Appropriation Act (No 1)2003-2004 (Cth) (‘the Appropriation Act) the Consolidated Revenue Fund was appropriated as necessary for the purposes of that Act. Section 8 of the Appropriation Act provides:
‘8 Administered items - basic appropriation
(1)For an administered item for an outcome of an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the lesser of:
(a)the amount specified in the item; and
(b)the amount determined by the Finance Minister in relation to the item, having regard to the expenses incurred by the entity in the current year in relation to the item.
(2)An amount issued out of the Consolidated Revenue Fund for an administered item for an outcome of an entity may only be applied for expenditure for the purpose of carrying out activities for the purpose of contributing to achieving that outcome.
Note:The acquisition of new administered assets will usually be funded from an administered assets and liabilities item (in another Appropriation Act)’
(original emphasis)
An ‘administered item’ is defined in s 3 of the Appropriation Act as:
‘administered item means an amount set out in Schedule 1 opposite an outcome of an entity under the heading “Administered Expenses.”’
(original emphasis)Schedule 1 to the Appropriation Act is entitled ‘Services for which money is appropriated’. An entity specified in the Schedule is ATSIS. The stated outcome is ‘effective delivery of policy advocacy support and programme services to Aboriginal and Torres Strait Islander peoples.’ The ‘Administered Expenses’ were stated as $967,410,000.
The funds appropriated under the Appropriation Act for the purposes of ATSIS are administered under the provisions of the Financial Management and Accountability Act 1997 (Cth) (“the FMA Act”). For that purpose, the Chief Executive Officer of ATSIS, pursuant to s 53 of the FMA by written instrument dated 1 July 2003 entitled ‘Chief Executive Officer Delegations for Administered (Program) Items’, made delegations under the FMA Act, Regulations and Orders for Administered (Program) Items. Those delegations included delegation PD3, which provided:
| Delegation | Category | Item | Description | Delegate | Financial Limit | Other limits | FMA Act ref | CEI Ref |
| PD3 | Spending | Approve or | To approve or decline the making of a grant of: · money to an individual, unincorporated body or body corporate. · money to State and Territory governments and their authorities, and local government bodies. | Executive | Within the limits of the appropriate cost centre approved allocation | Funding of individuals and unincorporated bodies is subject to the specific program requirements as contained in the relevant Program guidelines | s44 | 2.11 |
The first decision, as appears from its terms, was a decision of the first respondent Mr Sharma to approve or decline the making of a grant of public money. It was made by him pursuant to a delegation under s 53 of the FMA. It was a decision taken in the management of the affairs of ATSIS in accordance with s 44(1) of the FMA. As noted earlier in these reasons, Mr Sharma acknowledges that he was the relevant decision maker in respect of the first decision.
The applicant wishes to amend its application to add as respondents the Minister for Immigration and Multicultural and Indigenous Affairs and the Commonwealth globally with ATSIS as the second defendant, Mr Gibbons the Chief Executive Officer of ATSIC and ATSIS at the relevant time as fourth respondent, and ATSIC as fifth respondent, on the grounds that they together with the first respondent made the first decision. That would require consequential amendments to pars (A) and 1(a), (b), (c), (d), 3, and new paras 1(b1), (b2), (b3), (e), and 5 of the application.
There are no facts pleaded which would identify any of the proposed additional parties as having made the first decision under any enactment in circumstances which would give rise to an entitlement to have judicial review of that decision under the ADJR Act. Nor are any of the proposed additional respondents necessary parties to enable the Court to properly hear and determine the application against the first respondent as the relevant decision maker. Joinder of these parties on the basis contended for is refused.
The relevant decision maker in respect of the second decision was the third respondent, Mr Alfredson, acting in his capacity as Director of Evaluation and Audit in the Office of Evaluation and Audit. The decision was made under s 78A(5)(c) of the ATSIC Act. Likewise, Mr Alfredson was the relevant decision maker in respect of the third decision and was acting pursuant to s 78A(5)(c) of the ATSIC Act when he made this decision. The applicant does not seek to amend par (B) or pars 2(a) or (b) or par 3 or par 4 of the application to allege that anyone else made the second and third decisions.
The then Minister for Immigration and Multicultural and Indigenous Affairs was not the relevant decision maker in respect of any of the decisions made on 23 May and 16 July 2003 of which judicial review is sought. Neither is the Minister a necessary party for the purposes of an application to seek review of those decisions. Any decision made by the then Minister was one made under s 76 of the ATSIC Act and contained in the letter of request dated 20 March 2003 from the then Minister to Mr Alfredson as Director of Evaluation and Audit. These proceedings do not seek judicial review of that decision of the then Minister so as to require his joinder.
Mr Gibbons, the Chief Executive Officer of ATSIC and ATSIS at the relevant time, was not the relevant decision maker in respect of the second and third decisions. Mr Gibbons is not a necessary party for the purposes of an application to seek judicial review of the second and third decisions. The applicant does not seek to plead and particularise any administrative decision of Mr Gibbons made under an enactment that constitutes a decision to which the ADJR Act applies. To say that Mr Gibbons agreed with a proposal of Mr Alfredson that KPMG carry out the audit of the companies the subject of the Minister’s request under s 76 of the ATSIC Act does not identify sufficiently, or at all, a reviewable decision of Mr Gibbons. Nor does the letter from the Chairman of ATSIC to Mr Gibbons dated 25 July 2003.
The application to join the Minister and Mr Gibbons on the basis contended for relating to the second and third decisions and generally is refused.
Finally, it was submitted that the Commonwealth of Australia and ATSIC were necessary respondents having regard to the issues raised in the proposed amendments, being pars 6 and 7 set out above. I will deal with this submission when dealing with the proposed amendments.
As the relief sought is opposed in part on the inadequacy or absence of particulars in many of the proposed amendments, it is worthwhile to record the role played by particulars in a pleading. The function of particulars is to limit the generality of the allegations in the pleading and thus define the issues to be tried and to put an opposing party on notice of the facts which will be put against it and the case it will have to meet: Castlemaine Perkins Limited v Queen Street Hotels Pty Ltd [1968] Qd R 501 at 507; Phillips v Phillips (1878) 4 QBD 127 at 139. The respondents have a right to have the case against them presented in an intelligible manner: Davy v Garrett (1877) 7 Ch D 473; Castlemaine Perkins at 513. Where misconduct is alleged against a party, the facts must be stated with particularity: Wootton v Sievier [1913] 3 KB 499 (CA) at 503; Castlemaine Perkins at 511-512. A pleading which does not comply with these requirements is liable to be struck out as vexatious or frivolous or an abuse of process or because it tends to prejudice, embarrass, or delay a fair hearing of the application: Castlemaine Perkins at 507; see also O 11 r 16 of the Federal Court Rules.
I turn now to the proposed amendments which are not merely consequential on the joinder of additional parties.
The interest of the applicant to bring these proceedings as an organisation affected by the decisions is not in issue. Consequently, the amendments sought to the application to insert grounds going to establish an interest are unnecessary and are argumentative in their terms. As the amendment is unnecessary, no leave will be granted to make the amendments sought.
The proposed pars 1(b1) and 2(a)(iv) seek to add as new grounds a failure of the decision maker to take into account a relevant consideration (s 5(2)(b) of the ADJR Act). The relevant circumstance alleged is Resolution No 2571 of ATSIC which it is said was to the effect that self generated income was not subject to evaluation and audit under the ATSIC Act. A copy of Resolution No 2571 was exhibited to the applicant’s affidavit in support of this application. It stated:
‘APPOINTMENT OF SUB-COMMITTEE TO ADOPT 2000/01
FINANCIAL STATEMENTSThe Commission pursuant to Sections 7 and 10 of the Aboriginal and Torres Strait Islander Commission Act 1989:
(a)APPROVED the establishment of a sub-committee and AUTHORISED the sub-committee to adopt the 2000/01 Financial Statements on behalf of the Board; and
(b)DETERMINED that the sub-committee consist of the Chairman, the Deputy Chairman and the Chairman of the Audit Committee.’
(original emphasis)
The resolution in terms has nothing to do with the matters in issue. It does not contain a statement to the effect alleged. To allow the amendment would be futile and would be to allow an embarrassing pleading to come into existence. Leave to amend to include these paragraphs is refused.
The proposed pars 1(b2) and 2(a)(v) seek to add as a new ground that the decision maker failed to take into account a relevant circumstance, namely a letter from Mr Clark to Mr Gibbons dated 28 July 2003 to the effect that self generated income was not subject to evaluation and audit under the ATSIC Act. The affidavit in support states that the copy of the relevant letter is exhibit ‘FJ2’ to the affidavit. Exhibit ‘FJ2’ is a copy of a media release of ATSIC dated 6 August 2003 containing a statement of Mr Gibbons with respect to a decision of the Bidjara group of companies to suspend the operations of all companies within the group consequent upon the appointment by ATSIC of a receiver/manager to one company within the group. The media release makes no reference to a letter of Mr Clark, nor does it contain the contents of such a letter. In any event the letter, if it exists, came into existence after the dates upon which the first, second and third decisions were made. The letter dated 25 July 2003 from Mr Clark to Mr Gibbons set out earlier in these reasons does not contain any statement of the type alleged. There is no basis demonstrated as to why leave to amend to add these two paragraphs should be granted and leave is refused.
The proposed pars 1(b3) and 2(a)(vi) allege that the relevant decision maker failed to take into account a relevant consideration, namely the general terms and conditions relating to grants of ATSIC which it is alleged provide that grant funds do not include income generated by the activity or interest accrued during the period of the grant. A set of General Terms and Conditions relating to grants is exhibited to the affidavit in support as exhibit ‘FJ7’. It is not the General Terms and Conditions relating to grants of ATSIC. Rather, the document relates to grants by ATSIS in respect of grants to be made in the financial year 2003-2004 and was to take effect from 1 July 2003. The ATSIS conditions do not provide that Grant Funds do not include income generated by the activity or interest accrued during the period of the grant. Rather, such provisions as touch on the topic provide to the contrary. Thus it is stated that:
‘6. GRANT BUDGET
6.1You must perform the Approved Activity within the limits imposed by the Objective and the Approved Grant Budget, which is attached to the Letter of Offer. The Approved Grant Budget is subject to the Budgeting Guidelines specified in Attachment 1 of the Letter of Offer.
6.2Unless we give prior written approval for a different use, all income generated (including interest derived from the deposit of Grant Funds) while carrying out the Approved Activity must be used towards the Objective of the Approved Activity.
(emphasis added)
. . .
19. MONITORING OF RECORDS AND ASSETS
19.1We may from time to time during normal business hours and at such other times as are agreed:
a.enter your premises and places of business;
b.inspect and copy your books of account, financial institution records, and any other financial and non-financial records relating to a Grant made by us or our predecessors; and
c.inspect any assets acquired with funds provided by us or our predecessors.
19.2You must, as required by us for the purpose of inspecting such assets or copying such accounts or records:
a.make available all information, documentation and data, in any medium required by us:
i.at your registered office; or,
ii.with our consent, at your principal place of business or other place;
b.provide any assistance we require, in particular, make personnel available who will provide access to:
i.your computer records; and
ii.copies of documentation, including computer discs or other forms of electronic data.
20. PERIODIC FINANCIAL REPORTING
20.1You must provide us with periodic financial information as specified in Attachment 1 of the Letter of Offer, and prepared as set out in Grant Condition 20.3. If requested by us, these must be prepared by a qualified accountant.
20.2You may prepare financial information on an accrual or a cash basis.
20.3Financial Information must include, together with relevant supporting documentation:
a.a Statement of Financial Performance or a receipts and payments statement for the year-to-date compared with the Approved Grant Budget. All bank interest and income generated by the activity must be included.
(emphasis added)
b.a schedule of Grant Assets purchased during the year compared with the approved budget; and
c.where the financial statement has been prepared on a cash basis, total debtors and creditors.
20.4Financial Information must be accompanied by your certification, stating that:
a.you have not been a related body corporate during the period of the grant;
b.the grant Funds have been used for the Approved Activity as outlined in the Letter of Offer;
c.the unexpended portion of the Grant Funds (if any) is available for use within the next reporting period;
d.the financial information is presented fairly in accordance with ATSIC’s financial reporting framework detailed in Grant Condition 20.3;
e.all Grant Conditions and statutory obligations such as under the tax system have been complied with; and
f.where an Assets with a replacement value of over $2,000 has been acquired with the Grant Funds:
i.adequate insurance cover has been arranged with an approved insurer; and
ii.the Asset has been included on an asset register.
(emphasis added)
24. REVIEWS
24.1We may from time to time:
a.review, or engage the ATSIC Office of Evaluation and Audit to audit, your financial and operations performance in relation to a Grant and other grants from us and our predecessors; and
b.exercise our powers to monitor your records and assets for the purpose of any review.
24.2You must co-operate with us in responding to issues raised in such reviews or audits.’
No basis has been made out for the grant of leave to amend in the terms proposed in pars 1(b3) and 2(a)(vi). Accordingly, leave to do so is refused.
The proposed par 2(e), if one excludes the proposed additional respondents, seeks to allege that Mr Sharma the first respondent, and Mr Alfredson the third respondent, and the statutory agency ATSIS the second respondent by some unspecified person, at the time of making the relevant decision, acted with an improper purpose. That alleged purpose was:
‘(i)to cause detriment to the office of ATSIC Commissioner Ray Robinson or to Mr. Ray Robinson personally;
(ii)to obtain information that could be utilised by the Fourth Respondent in causing detriment to the office of ATSIC Commissioner Ray Robinson or Mr. Ray Robinson personally;
(iii)to obtain information that could be provided to the Federal Police and other investigative authorities who were undertaking investigations in relation to the affairs of Mr. Ray Robinson.
(iv)to obtain information generally as to the affairs of the Applicant to which they were not entitled.’
Acting with such an intention is said to be:
(i)an exercise of a power for a purpose other than a purpose for which the power was conferred (s 5(2)(c) of the ADJR Act);
(ii)an exercise of discretionary power in bad faith (s 5(2)(d) of the ADJR Act);
(iii)an exercise of a personal discretionary power at the direction or behest of another person (s5(2)(e) of the ADJR Act);
(iv)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g) of the ADJR Act); and
(v)an exercise of a power in a way that constitutes the abuse of the power other than in the ways set out in (i) to (iv) inclusive above (s5(2)(j) of the ADJR Act).
This allegation was not raised in the original application and there is a failure to explain its earlier omission. There is no factual material filed to support the allegation and there are no particulars given linking the alleged ‘contraventions’ of the specified sections of the ADJR Act with all or any of the sub-paragraphs (e)(i) to (iv) inclusive. For example, it is not pleaded at whose direction or behest Mr Sharma or Mr Alfredson made either the first or second and third decisions in ‘contravention’ of s 5(2)(e) of the ADJR Act and whether it is alleged that Mr Sharma or Mr Alfredson had all or any of the improper purposes specified in the proposed par 2(e) or whether the improper purpose was held by the person, whoever that person may be, at whose behest or direction the decision was made.
Paragraph 2(e) raises allegations of bad faith which are required to be fully and properly particularised: Wootton v Sievier at 503; Castlemaine Perkins at 511-512. It is impossible to define the case sought to be made out by the proposed amendment and it is not properly particularised. Further, no factual material is produced to support such a case. Leave to amend in the form proposed is refused.
The applicant seeks in the proposed par 2(b)(iv) to allege that the making of the second and third decision was an abuse of power on the part of the third respondent because he ‘was aware that the request made to the third respondent pursuant to s 76(1)(f) and s 76(1)(i) of the ATSIC Act for his office to exercise its powers was not a proper request.’ To make the decisions with that knowledge is alleged to constituted a ‘contravention’ of s 5(2)(c), (d), (e), (g), and (j) of the ADJR Act. The substance of each of these paragraphs of the ADJR Act is set out in par [55] above. There are no particulars of the facts and circumstances which it is said rendered the request an improper request, nor the factual circumstances by which it is alleged that the third respondent became aware of the disqualifying facts and circumstances which rendered the request an improper one. Nor are the circumstances in par (iv) in any meaningful way related to the paragraphs of s 5(2) of the ADJR Act pleaded. Thus, for example, there are no particulars of how is it alleged the third respondent acted at the direction or at the behest of another person to act upon a request which he knew to be an improper request (s 5(2)(e) of the ADJR Act).
The proposed par 2(b)(iv) is a bald assertion of bad faith and improper conduct not supported by facts or particulars. It would be impossible for the third respondent to know the case which is to be made against him and to meet that case on the hearing of the application. The proposed amendment does not satisfy the requirements of a properly particularised pleading discussed in par [46] above. Leave to amend in terms of the paragraph is refused.
The amendments proposed to par 3 have the effect of rendering that paragraph unintelligible. As originally drawn it related only to the second and third decisions and the jurisdiction of the third respondent to make those decisions. It was alleged that s 78A(5)(c) of the ATSIC Act did not authorise the third respondent to require production of the documents and information sought because that material contained information in respect of matters which were not grants, loans or guarantees made by ATSIC to the applicant. By attempting to include the first decision within the operation of the paragraph, and to use the generic term ‘respondents’, the pleader purports to make the first decision one made without jurisdiction by reference to the circumstances which it contends rendered the second and third decisions ones made without jurisdiction and to make the second and third decisions without jurisdiction because of the terms of the loan condition now sought to be pleaded in par 3(b). If the applicant is attempting to say that the first respondent had no jurisdiction to condition an offer of a grant on the provision of materials to the third respondent broader than he could obtain under the exercise of the power under s 78A(5)(c) of the ATSIC Act, and to particularise the relevant circumstances which would make such a decision one falling within s 5(1)(c) of the ADJR Act, these proposed amendments do not do so. If the applicant wishes to plead some other case with respect to the first decision, then that case is not intelligible from the terms of the proposed amendment.
The amendment proposed in par 3(d) relates to the second and third decisions. However, in what manner it is alleged that the circumstances pleaded in the proposed paragraph go to make the second and third decisions ones which the third respondent had no jurisdiction to make is unintelligible. The problem arises with the contention that ‘self generated’ accounts are ‘outside the scope’ of sections 76 to 78 of the ATSIC Act. Section 76 is concerned with the functions of the Office of Evaluation and Audit established within ATSIC by s 75 of the ATSIC Act. Section 77 relates to the establishment of the position of Director of Evaluation and Audit who is the head of the Office of Evaluation and Audit. Sections 77A to 77J inclusive deal with a range of matters touching upon the term of appointment of the director, the conditions of appointment, acting appointments, resignation or termination, and the absence of personal liability of the director in relation to the discharge of his or her duties. Section 78 is concerned with regular evaluations and audits of programs conducted or funded under the ATSIC Act. The proposed amendment makes no attempt to show how these sections are relevant to the case that the third respondent did not have the jurisdiction to make the second and third decisions and therefore gave rise to the ground for review specified in s 5(1)(c) of the ADJR Act. The third respondent is not required to speculate as to the case mounted against him. Leave to amend par 3 in the way sought by the applicant is refused.
The attempt to include the first decision within par 4 of the application is embarrassing in a pleading sense. There is no suggestion that the first decision to offer a grant to the applicant on or about 14 July 2003 was a decision authorised by s 76 or s 78A(5)(c) of the ATSIC Act. It is unintelligible to contend, as is proposed in par 4(b), that the first decision was ‘more that (sic) an evaluation or audit concerning a grant under s 78A(5)’ and that thereby the decision is ‘outside the Act’. The ‘Act’ is not defined in the pleading and I presume that it is the ATSIC Act pleaded in the second line of the paragraph. The first decision is not one which purports to be made under or in reliance upon s 76 or s 78A(5)(c) of the ATSIC Act, nor any other section of that enactment. If the paragraph is restricted to the second and third decisions the proposed amendments add nothing to what is already pleaded in pars (a), (b) and (c), and therefore it is unnecessary.
The proposed par 4(d) is meaningless because of the inclusion of the words ‘contrary to s 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977’ and the inclusion of ‘PARTICULARS’ which appear, at least in respect of (i) and (ii), to relate to par 4(d). The term ‘self generated’ accounts as appears in par B at the commencement of the application deals with particular accounts identified by KPMG accountants which deal with grant/loan income: see par (B)(a) and (b)(iii) of the application. Paragraph (i) of the Particulars to par 4 seek to give the term ‘self generated accounts’ a meaning different to that used in the second and third decisions as pleaded and raise as an issue accounts which do not relate to grants or loans which is inconsistent with, and irrelevant to, the decisions pleaded in B(a) and (b)(iii). Paragraph (ii) of the ‘Particulars’ does not particularise which of the terms of the ATSIS standard terms and conditions of grant expressly provide that auditing and monitoring of grants does not cover income from grants or grant activities. If the ATSIS conditions are those exhibited to the affidavit in support of the application for amendment, then the statement is wrong. In any event, it is not demonstrable on the pleading how the ATSIS standard terms and conditions for grants are relevant to the second and third decisions. The matters sought to be pleaded in pars (iii) and (iv) of the Particulars to par 4 add nothing to what is already in pleaded in pars 2(d)(iii), 3(a) and 4(a) of the application and are unnecessary. The matters pleaded in par (v) are not shown to be relevant to the matters in issue. For the above reasons, leave to amend par 4 is refused.
The proposed amendment in par 5 intends to relate to all respondents, including those parties it had been sought to join as respondents, and to relate to all three decisions. If the allegation of acting beyond statutory power is limited to the decisions dealt with by pars 2, 3 and 4 of the application in its unamended form, the allegation only relates to the decisions made by the third respondent. If the act was beyond power as alleged, the proposed par 5 adds nothing to the applicant’s claim. If the act was within power, then no error of law was made and the applicant would fail in respect of the ground pleaded in pars 2, 3 and 4, and also under the proposed par 5. If the proposed par 5 was properly particularised as to the errors of law it is alleged were made by the third respondent, it would be repetitive of the matters pleaded in pars 2, 3 and 4. As the proposed par 5 is unnecessary and adds nothing to the applicant’s existing claims, leave to amend the application to add it as a new ground is refused.
The proposed new par 6 and par 7 of the application only relate to the first decision. There are a number of problems with the proposed amendments, not least of which are that it is not particularised and is internally inconsistent. It is also inconsistent with the agreement entered into between the Commonwealth of Australia by ATSIS and ATSIC, the relevant terms of which are set out earlier in these reasons. This is an agreement which the applicant does not seek to challenge.
For reasons set out earlier in relation to joinder of additional parties, the only statutory decision maker that the applicant can identify in relation to the first decision is the first respondent as an officer of ATSIS acting under delegation. The assertion that unspecified persons made the first decision without having jurisdiction to make it is embarrassing. Further, the enactment which the applicant contends the first decision was purportedly made under is not identified by the applicant. If the pleading means that that enactment was unlawful (having regard to the reference to ‘s 5(j) (sic) of the ADJR Act’), then the pleading does not say so and purports to say that the decision was beyond jurisdiction because it:
(i) was outside the powers of ATSIS;
(ii)was not authorised by the ATSIC Act or any enactment of the Commonwealth; and
(iii)was contrary to the ATSIC Act in that the decision purported to be made by ATSIS and not ATSIC.
What the paragraph does not say is that the statutory enactment under which the application says the first respondent purported to act did not authorise him to make the decision because that enactment was ineffective to do so having regard to all or any of the matters set forth in (i), (ii) and (iii) above.
Paragraph 6 then purports to say in par (a), without any particulars as to how it is alleged that it occurred, that the functions of ATSIC, in particular those under ss 7, 14 and 15 of the ATSIC Act were ‘purportedly transferred to ATSIS as and from 1 July 2003 to perform tasks then performed by ATSIC’. Paragraph 6(b), again without particulars, speaks of ‘taking away from ATSIC’ a function and conferring it on ATSIS. Paragraph 6(c) alleges that the functions ‘imposed upon ATSIC by statute’ were such that they could not lawfully be delegated to any body or agency. It is not clear whether or not it is intended that a distinction be drawn between the statutory functions of ATSIC contained in s 7 of the ATSIC Act and its statutory powers contained in pars 14, 15, 16 and 17, and whether the plea involves a challenge to the validity of s 7(1A) of the ATSIC Act. Paragraph 6(e) purports to say that ATSIC itself (the proposed fifth respondent) had no power to make the first decision (but no basis for its inability to do so is pleaded) and according to par 6(f), has not in fact made a lawful decision. Finally, par 6(g) alleges that the first decision was made by ATSIS which is inconsistent with the matters pleaded in the body of par 6 and par 6(e).
The failure to allege the statutory enactment under which the first respondent purported to act and to particularise the ways in which it failed to authorise him to make the decision which he did, or to particularise the circumstances which existed which operated to render that enactment legally ineffective to authorise the first respondent to act in the way that he did is fatal to the applicant’s claim to litigate the issues raised in par 6. The same situation applies with respect to par 7. The funds appropriated to ATSIS, as set out above in these reasons, were appropriated to its use for its purposes as specified in schedule 1 to the Appropriation Act. The funds were not appropriated for the purposes of ss 14, 15, 16 and 17 of the ATSIC Act. Further, it is not demonstrated that an ability to expend appropriated funds is relevant to the jurisdiction of the first respondent to make an offer of a grant by ATSIS to the applicant for the purposes of the discharge of the functions of ATSIS as contained in the Order in Council published in the Commonwealth Gazette on 30 May 2003.
The allegations contained in the proposed pars 6 and 7 are loose and contain no information as to the precise nature of the circumstances which operate to legally deny efficacy to the enactment under which the applicant alleges the first respondent acted; whatever that may have been. Further, they fail to address with precision the arrangements which in fact commenced to operate from 1 July 2003 and the effect of the written agreement made between ATSIC and the Commonwealth as to the relationship between ATSIC and ATSIS in respect of the matters covered by that agreement.
The proposed amendments in pars 6 and 7, if they had formed part of the application as filed, would have been liable to be struck out as embarrassing and tending to prejudice and delay the fair hearing of the application. In these circumstances, leave to amend in terms of pars 6 and 7 is refused.
The refusal of leave to amend to add pars 6 and 7 means that the Commonwealth of Australia and ATSIC are not, by virtue of these paragraphs, necessary parties who should be joined.
The applicant seeks to amend to plead a different decision to the second decision originally pleaded in the application as filed. It seeks to do so to avoid the consequences of commencing the proceedings in respect of the second decision after the expiration of the prescribed period for filing an application for review. The allegation now sought to be made is that the third respondent on 16 July 2003 determined not to withdraw the notice given pursuant to s 78A(5)(c) of the ATSIC Act on 23 May 2003 or alternatively that on 16 July 2003 he failed to determine to withdraw the earlier notice. No factual basis is made out that there was any request made to him to adopt such a course on that date. The only relevant factual circumstance occurring on 16 July 2003 was that the third respondent made the third decision and issued the further notice under s 78A(5)(c) of the ATSIC Act. No basis has been shown that the new decision contended for was or would be an administrative decision made under an enactment.
What the applicant seeks to do is to raise a false factual premise and then to raise the matters presently pleaded in pars 2, 3 and 4 of the application as grounds going to the review of such a premise. The third respondent is not required to answer such a case. To raise it is embarrassing and will only prejudice and delay a fair hearing. The application to amend in this respect is refused.
ATSIC is not a party to the proceedings and no case is pleaded against it entitling the applicant to the relief claimed against it in prayers 1, 3 and 11 of the proposed amended application. The prayers for relief claimed in the new prayers 5, 6, 6A and 7 relate to the proposed grounds in pars 6 and 7 which have not been allowed to proceed in the form proposed. Therefore the amendments proposed to the prayers for relief are refused.
The result of this application for leave to amend and add additional parties will be to leave the substantive application in the form in which it was filed on 24 July 2003 as particularised by the further and better particulars filed on 4 February 2004, which particulars I have previously held to be inadequate.
The applicant also seeks leave to adduce in evidence documentary or other evidence regarding the property of the applicant situated at 51 Wills Street, Charleville, Queensland. That leave is given. However, the documents exhibited to the affidavit in support of the application to amend, being ‘FJ2’, ‘FJ3’, ‘FJ5’, ‘FJ6’ and ‘FJ7’ are not shown to be relevant on the present state of the pleadings and accordingly leave to adduce these documents into evidence is refused.
As the applicant has failed in its application, other than in respect of evidence concerning the Wills Street property, the application should be dismissed with costs to follow the event.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.
Associate:
Dated: 30 July 2004
Counsel for the Applicant:
L Stephens with S Collins
Solicitor for the Applicant:
F Jongkind & Co
Counsel for the Respondent:
R Tracey QC with L De Ferrari
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
28 April 2004
Date of Judgment:
30 July 2004
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