Buffier, B. v Bowen, L.F
[1987] FCA 226
•12 MAY 1987
Re: BRIAN LESLIE JOSEPH BUFFIER
And: LIONEL FROST BOWEN
No. ACT G7 of 1987
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY GENERAL DIVISION
Neaves J.
CATCHWORDS
Administrative Law - judicial review - Consent by Attorney-General to the institution of proceedings for the summary prosecution of criminal offences - Application for order of review - Objection to competency - Whether giving of consent a decision of an administrative character.
Administrative Law - Judicial review - Application for order of review in respect of consent to institution of proceedings for the summary prosecution of criminal offences - No entitlement to statement of reasons under s.13 of Administrative Decisions (Judicial Review) Act 1977 (Cth) - Application for order for discovery - Exercise of discretion.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5, 13, Sch.2(e)
Companies Ordinance 1962 (A.C.T.), s.381(4)
Federal Court Rules, Order 15
HEARING
CANBERRA
#DATE 12:5:1987
Counsel for the applicant: Mr R.C. Refshauge
Solicitors for the applicant: Macphillamy Cummins and Gibson
Counsel for the respondent: Mr I. Nash
Solicitor for the respondent: Australian Government Solicitor
ORDER
The objection to the competency of the application filed herein on behalf of the applicant be dismissed.
The application that the respondent, pursuant to Order 15 of the Federal Court Rules, file and serve on the applicant a list, verified by affidavit, of documents relating to the matters in issue between the applicant and the respondent be dismissed.
The applicant file and serve any further affidavits on which he intends to rely not later than 22 May 1987.
The respondent file and serve any affidavits on which he intends to rely not later than 5 June 1987.
The applicant file and serve any affidavits in reply not later than 12 June 1987.
The parties have liberty to approach the District Registrar with a view to fixing a date for the hearing of the application.
The costs of the objection to competency and of the application for an order for discovery be reserved.
The parties have liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The Companies Ordinance 1962 (A.C.T.) ("the Companies Ordinance"), by s.381(4), provided that, notwithstanding anything in any other law of the Territory, proceedings for the summary prosecution of an offence against the Ordinance might be brought within the period of three years after the commission of the offence or, with the written consent of the Minister, at any later time. By virtue of s.10(2) of, and Part 1 of the Second Schedule to, the Seat of Government (Administration) Ordinance 1930 (A.C.T.) the Companies Ordinance was administered by the Attorney-General. The power to consent to the institution of such proceedings survived the repeal of the Companies Ordinance by the Companies Act 1981 (Cth) - see s.3(3) of that Act, ss.3(e) and 29(2) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) and s.27 of the Companies (Transitional Provisions) Act 1981 (Cth).
On 16 September 1986, Lionel Frost Bowen ("the respondent"), the Attorney-General, consented to the institution of proceedings for the summary prosecution of Brian Leslie Joseph Buffier ("the applicant") for certain offences against the Companies Ordinance at a time later than three years after the commission of the alleged offences. The offences were alleged to have been committed between 3 August 1976 and 25 June 1980. Three of the offences alleged relate to -
. the failure of Kentucky Homes (Canberra) Pty. Limited to keep such accounting records as correctly recorded or explained its transactions and financial position (s.161A);
. the failure of the company within the period of two years immediately preceding its winding up to keep proper books of account (s.303(1));
. the making by the applicant of a false entry in the books of the company, namely an entry showing that a lease of certain land at Wanniassa in the Australian Capital Territory was an asset of the company (s.300(1)(c)(iv)).
The fourth offence is that the applicant was knowingly concerned in the failure of one Charles Peter Dunnet to act honestly and use reasonable diligence as a director of the company (s.124(c) of the Companies Ordinance and s.5 of the Crimes Act 1914 (Cth)).
Proceedings for the summary prosecution of those offences were subsequently instituted. A copy of the document evidencing the Attorney-General's consent to the prosecution of those offences was received by the applicant on 12 January 1987.
On 9 February 1987, the applicant commenced proceedings in this Court for an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of the decision to consent to the institution of the proceedings for the summary prosecution of the offences. The grounds stated in the application are that the respondent denied the applicant natural justice and that he failed to take into account relevant considerations. The particulars given of the first of those grounds are that the respondent did not afford the applicant an opportunity to be heard before making the decision and that the respondent did not inform the applicant that he was considering or intending to make the decision. The considerations which are said to have been relevant and which the respondent failed to take into account are -
(a) that the applicant had lost considerable monies from the liquidation of Kentucky Homes (Canberra) Pty. Limited;
(b) the delay (or, more accurately, the lapse of time) since the alleged commission of the offences; and
(c) the delay (or lapse of time) since the provision to the Corporate Affairs Commission of the Australian Capital Territory of the report of the liquidation of Kentucky Homes (Canberra) Pty. Limited.
At all material times the applicant was an officer of Kentucky Homes (Canberra) Pty. Limited and, as such, is said to have committed the offences charged.
The respondent objects to the competency of the application on the ground that the decision which the applicant seeks to have reviewed is not a decision of an administrative character. It is not contended that the respondent did not make a decision or that that decision is other than a decision made under an enactment.
In support of the objection to competency, it is submitted on behalf of the respondent that the power to consent to the initiation of a prosecution, whether conferred on the Attorney-General or some other Minister, is a wide prerogative power which is immune from review at common law. Counsel referred to Gouriet v. Union of Post Office Workers (1978) AC 435 at p 487; Barton v. The Queen (1980) 147 CLR 75 at pp 89-91, 94 and Clyne v. Attorney-General (1984) 55 ALR 624 at pp 632-3.
It is further submitted that the power conferred by s.381(4) of the Companies Ordinance is a power to, as it is put, "trigger the judicial process". The provision confers, so the argument runs, a wide, unfettered discretion which is comparable to the discretion of the Attorney-General to commence judicial proceedings by ex officio indictment. The fact that the power is a power to consent to the institution of proceedings rather than a power to institute proceedings is said to be of no significance when considering whether the courts would, at common law, review the exercise of the discretion so conferred. Indeed, the "consent" cases are said to be a fortiori.
Because of the nature and width of the discretion conferred by s.381(4) and the circumstance that the exercise of the power does not, of itself, determine or affect legal rights or liabilities, the Attorney-General, in giving his consent to the institution of the criminal proceedings, is not, so it is said, exercising an administrative power. The decision is, in consequence, not a decision of an administrative character within the meaning of that expression in the Judicial Review Act. As an integral part of this submission, it is put that the Judicial Review Act is to be construed as not intending to change the substantive law and, consequently, as not intending to bring within the purview of the review procedures there provided any decision which was not reviewable at common law. As one facet of this argument it is suggested that, as the giving of consent does not, of itself, determine or affect the rights or liabilities of the applicant, he is not properly described as a person aggrieved by the decision.
To support the proposition that the decision is not a decision of an administrative character, counsel for the respondent relied on Cody v. Joseph Pease (Pty.) Ltd. (1945) St R Qd 81 at p 91 and Nicol v. Attorney-General for Victoria (1982) VR 353.
In the first of those cases, a Full Court of the
Supreme Court of Queensland had before it motions to make absolute orders nisi to quash convictions under ss.4, 5 and 7 of the Black Marketing Act 1942 (Cth). Section 4(1) of that Act provided that any person who did any act or thing, or was guilty of any omission or conduct, which constituted black marketing as defined was guilty of the offence of black marketing. For the purposes of the Act, black marketing meant engaging in conduct that was proscribed by or under regulations made under the National Security Act 1939 (Cth). Section 4(4) provided:
"The offence of black marketing shall not be prosecuted without the written consent of the Attorney-General after report from the Minister administering the Regulations in relation to which the offence was committed and advice from a Committee appointed by the Attorney-General and consisting of a representative of the Department administered by that Minister, a representative of the Attorney-General's Department and a representative of the branch of the Department of Trade and Customs known as the Prices Branch."
The Court considered, and rejected, an argument that s.4 was invalid as conferring judicial power upon a body which was not a court contrary to s.71 of the Constitution. Dealing with that argument, Mansfield J. said at p.91:
"In my opinion the correct view to take is that the consent of the Attorney-General under s.4, subsec.4, of the Black Marketing Act is a decision approving the invocation of the judicial power and for the purpose of initiating a controversy, and therefore is an act preliminary to the exercise of judicial power by a judicial tribunal.
By his consent the Attorney-General does not decide any controversy, nor does he give any binding or authoritative decision which determines questions of rights and liabilities. His consent may affect the liability of a person after a controversy has been decided by an appropriate judicial tribunal, but his consent does not in any way determine a right or liability. The Attorney-General's act is, in my opinion, an executive act authorised by Parliament as incidental to its legislative power. See also Re Coorey ((1945) 62 NSW WN 167). It follows, therefore, that s.4, subsec.4, is not ultra vires the Constitution."
In Nicol v. Attorney-General for Victoria (supra) the Supreme Court of Victoria had before it an application under the Administrative Law Act 1978 (Vic.) to review a decision made under s.381(2) of the Companies Act 1961 (Vic.), a provision corresponding to s.381(4) of the Companies Ordinance, consenting to the institution of proceedings under the Act notwithstanding that more than three years had elapsed since the offences were alleged to have been committed.
Section 3 of the Administrative Law Act 1978 (Vic.), so far as material, provided:
"Any person affected by a decision of a tribunal may make application .... to the Supreme Court or a judge thereof for an order calling on the tribunal or the members thereof .... to show cause why the same should not be reviewed."
Section 2 of the Act defined both "Decision" and "Tribunal". Those definitions, so far as relevant, were in the following terms:
"'Decision' means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.
'Tribunal' means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."
The Court unanimously held that the granting of consent was not reviewable under the Administrative Law Act 1978 (Vic.) on two grounds, one that the granting of consent was not a "decision" within the meaning of the relevant statutory definition and, two, that the Attorney-General was not, in giving his consent, a "tribunal" within the meaning of that expression in the Act.
In my view, neither the passage in the judgment of Mansfield J. set out above nor the decision of the Supreme Court of Victoria in Nicol v. Attorney-General for Victoria (supra) provide any support for the respondent's submission. In the passage cited, Mansfield J. was concerned only to deny that the provision requiring consent to the institution of the proceedings involved an exercise of the judicial power of the Commonwealth. The decision in Nicol v. Attorney-General for Victoria (supra) turned on the provisions contained in the Administrative Law Act 1978 (Vic.) which delimited the kinds of decisions that could be the subject of review under the Act. The language of the provisions the Supreme Court was there considering differs significantly from the provisions of the Judicial Review Act here relevant.
The decision of the Attorney-General to consent to the institution of proceedings against the applicant is clearly a decision made under an enactment within the meaning of that concept in the definition of "decision to which this Act applies" in s.3(1) of the Judicial Review Act. It is equally, in my view, a decision of an administrative character. It is a decision taken in the exercise of the responsibilities which fall upon the Attorney-General as the Minister to whom the administration of the Companies Ordinance is committed. Consent is a necessary condition to the commencement and continuation of the proceedings against the applicant and, in my opinion, the decision answers the description of a decision taken in the course of the administration of the Companies Ordinance. As such, it is reviewable under the Judicial Review Act. I am also satisfied that the applicant is properly described as a person aggrieved by the decision.
The objection to competency is dismissed.
I turn then to the application made on behalf of the applicant that the respondent, pursuant to Order 15 of the Federal Court Rules, give discovery by filing and serving on the applicant a list, verified by affidavit, of documents relating to the matters in issue between the applicant and the respondent. That application is opposed by the respondent.
In support of the application counsel for the applicant referred to the discussion by a Full Court of this Court in Federal Commissioner of Taxation v. Nestle Australia Ltd. (1986) 69 ALR 445 at pp 452-4 of the availability of the process of discovery in proceedings under the Judicial Review Act. Counsel also drew attention to the circumstance that the applicant was not entitled to seek a statement under s.13 of the Judicial Review Act by reason of the exclusion by par.(e) of Schedule 2 to that Act from the classes of decisions to which s.13 applies of decisions relating to the administration of criminal justice.
In Reid v. Nairn (1985) 17 A Crim R 29, Fisher J., after citing passages from W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 FLR 175 and Lloyd v. Costigan (1983) 62 ALR 284 at pp 292-3, said at p 33:
"It seems to me that the right to discovery is not necessarily denied to an applicant for review of a decision under the Act. However, it is certainly not always available, particularly when the applicant is entitled to obtain reasons under s.13 for the decision. If reasons are not obtainable, the power to order discovery under the Rules of Court should be exercised sparingly, particularly in relation to decisions relating to the administration of criminal justice. It should never be available to an applicant who is engaged in a fishing expedition, that is to say, attempting to find out if he has a case in support of which he has no evidence and knows nothing. As I have already said, that was, on the then evidence, exactly the situation of the applicant in this matter at the time he first asked the court to order discovery. He sought discovery in an attempt merely to substantiate his suspicions (RHM Foods Ltd. v. Bovril Ltd.
(1982) 1 All ER 673) and obtain evidence to support his allegations."
The grounds upon which the order of review is sought and the particulars given of those grounds have already been identified. The first ground alleges a denial of natural justice in that the applicant was not informed that the matter of giving consent was under consideration and was not afforded an opportunity to be heard before the decision was made. In his affidavit sworn on 6 February 1987 and filed in support of the application, the applicant deposes (par.4) that at no time was he contacted by the respondent or anyone acting on his behalf concerning the giving of consent and that he was not asked to make any comment or submission on whether the consent should be given or not. As I understand it, this is conceded by the respondent. The question in issue between the parties is one of construction of the relevant statutory provisions. No documents in the possession of the respondent relating to the giving of the consent are relevant to this issue and no basis has, therefore, been shown why the order sought should be made so far as that issue is concerned.
The second ground relied on is that the respondent failed to take into account relevant considerations. The material at present before the Court to support this ground of the application is sparse indeed. In so far as the applicant seeks to support this ground by asserting that the respondent failed to take into account that the applicant had lost considerable monies from the liquidation of Kentucky Homes (Canberra) Pty. Limited, the material consists solely of pars 5 and 6 of the applicant's affidavit sworn on 6 February 1987. Those paragraphs read as follows:
"5. As a result of the liquidation of Kentucky Homes (Canberra) Pty. Limited I suffered personal financial loss of approximately $44,000.00. I have never been asked to provide information as to that amount to the Respondent nor to any person on his behalf.
6. To the best of my knowledge information and belief, neither the liquidator of Kentucky Homes (Canberra) Pty. Limited nor any officer of the Corporate Affairs Commission of the Australian Capital Territory are aware of that amount of loss I suffered."
The applicant can succeed on this ground only if he can establish that the respondent failed to take into account a consideration which he was bound to take into account in deciding whether to give his consent: see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299 per Mason J. at p 308 and the cases there cited. Where, as in the case of s.381(4) of the Companies Ordinance, the discretion conferred is in its terms unconfined, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the statute: ibid., p.309.
Counsel for the applicant foreshadowed an argument that a consideration of the subject matter, scope and purpose of the Companies Ordinance required an implication to be made that, in a case where prosecution proceedings have not been commenced within the three year period prescribed, the circumstance that the alleged offender, being a director of the company, has already suffered a financial detriment by reason of the liquidation of the company in relation to the affairs of which the offences are alleged to have been committed must be taken into account. In view of the circumstances referred to in pars 5 and 6 of the affidavit that the respondent was unlikely to have been aware of the material on which the applicant relied to establish that he suffered financial detriment as a result of the liquidation of the company and that such material would not have been readily available to him, the submission rather assumed the complexion of asserting that the respondent was not only bound to take the detriment to the applicant into account but was bound, before making a decision, to make enquiries to see whether any such detriment had been suffered.
I say nothing about the ultimate success or otherwise of those submissions - that is a matter for further argument. However, it must be said, as counsel for the applicant recognised, that substantial difficulties lie in the way of the applicant. Added to this is the quite unsatisfactory nature of the material put before the Court on behalf of the applicant. Paragraph 5 of the applicant's affidavit does not depose to any facts from which a conclusion could be drawn, either by the decision-maker or by the Court, that he suffered financial loss as a result of the liquidation of the company. That paragraph is not admissible in its present form and there is no other material on the point.
The other contention of the applicant may be summarised by saying that the respondent failed to take into account the time that elapsed between the date when the Corporate Affairs Commission was in possession of all the evidence relating to the offences and the date when the consent was given. Again, the only evidence put before the Court by the applicant to support his claim that the respondent failed to take such lapse of time into account is a document described as a report to creditors dated 19 August 1983 by the liquidator of Kentucky Homes (Canberra) Pty. Limited. The applicant refers to the following statements which appear in that report under the heading "Investigations":
"A detailed investigation into the affairs of the company was undertaken and a comprehensive report has been lodged with the A.C.T. Corporate Affairs Commission and the A.C.T. Supreme Court.
The issues raised in the report are under examination by the A.C.T. Corporate Affairs Commission and further action by the Commission is anticipated on a number of the issues investigated."
The applicant, therefore, says that the comprehensive report referred to was in the hands of the A.C.T. Corporate Affairs Commission prior to 29 August 1983 and he seeks to draw the inference that that report contained all of the evidence necessary to institute the proceedings. In the light of the reference to the issues being further examined, it may not be appropriate to draw that inference but, in any event, the statements provide no foundation for an argument that the respondent failed to have regard to the lapse of time which had occurred, whatever its length may have been.
Having regard to these considerations, I am of the opinion that the applicant has failed to show a sufficient basis upon which an order for discovery should now be made. The application for such an order is, therefore, dismissed. The application may be renewed if the further conduct of the matter demonstrates that justice requires that such an order be made.
It is appropriate to give directions for the further hearing of the matter. I direct that the applicant file and serve any further affidavits on which he intends to rely not later than 22 May 1987, that the respondent file and serve any affidavits on which he intends to rely not later than 5 June 1987 and that the applicant file and serve any affidavits in reply not later than 12 June 1987. The parties are to be at liberty to approach the District Registrar with a view to fixing a date for the hearing of the application. Liberty to apply is reserved. I also reserve the costs of the objection to competency and of the application for discovery.
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