Burswood Management Ltd v The Attorney-General of the Commonwealth of Australia - [1990] FCA 287

Re: BURSWOOD MANAGEMENT LIMITED; DALLAS REGINALD DEMPSTER and LIM KOK THAY
And: THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA and
THE DIRECTOR OF THE OFFICE OF LEGAL AID ADMINISTRATION
No. G223 of 1990
FED No. 287
Practice and Procedure
23 FCR 144/20 ALD 357

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Wilcox(1) and Hill(1) JJ.

CATCHWORDS

Practice and Procedure - Administrative Decisions (Judicial Review) - Statement of reasons required by s. 13 - Whether a decision to grant financial assistance for the conduct of a Trade Practices matter is excluded from the operation of s. 13 by para. (f) of Schedule 2 - Whether para. (f) is directed solely to proceedings to which the Commonwealth or an instrumentality is a party - The meaning of "in connection with".

Administrative Decisions (Judicial Review) Act 1977: s. 13 and para. (f) of Schedule 2.

Trade Practices Act 1974: s. 170

HEARING

SYDNEY

#DATE 28:6:1990

Counsel for the Appellants: Mr R.A. Conti QC

and Mr. J.M. Ireland

Solicitors for the Appellants: Mallesons Stephen Jaques

Counsel for the Respondents: Mr J.J. Garnsey QC

and Mr. G.T. Johnson

Solicitor for the Respondents: Australian Government Solicitor

ORDER

The appeal be dismissed.

The appellants pay the costs of the respondents of the appeal.

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

JUDGE1

An officer of the Australian Public Service authorised the grant by the Commonwealth of legal assistance, pursuant to s. 170 of the Trade Practices Act 1974, to persons who are the applicants in another proceeding (No. WAG121 of 1988 in the Western Australian District Registry of this Court). The appellants are respondents to proceeding WAG121 of 1988 which is brought under the Trade Practices Act 1974 ("the Trade Practices proceeding"). Neither the Commonwealth nor any Commonwealth instrumentality or officer is a party to that proceeding. This case concerns the question whether that decision under s. 170 is excluded from the operation of s. 13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by para. (f) of Schedule 2 to that Act.

The appellants sought to obtain a statement in writing, pursuant to s. 13 of the Judicial Review Act, from the officer who made the decision under s. 170. The decision-maker resisted the attempt to obtain that statement on the ground that the decision was excluded from s. 13 by paragraph (f).
Davies J., before whom the matter came at first instance, held that paragraph (f) excluded the decision from the operation of s. 13, and it is from his Honour's decision that the appeal was brought to this Full Court.
Having held that paragraph (f) excluded the decision to grant legal assistance from the operation of s. 13, Davies J. then dismissed the application before him to review the grant of legal assistance. His Honour took this course because counsel for the appellants informed him that the appellants were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Burswood Management Ltd & Ors v. The Attorney-General of the Commonwealth of Australia & Anor [1990] FCA 287 (23 FCR 144; 20 ALD 357)
Case: [1990] FCA 287
Decision Date: 28 JUNE 1990

CaseChat Overview and Summary

Burswood Management Ltd challenged the Attorney-General of the Commonwealth of Australia over the decision not to provide a statement of reasons for the grant of financial assistance for legal proceedings under the Trade Practices Act. The matter was heard in the High Court of Australia. The central issue before the court was whether a decision to grant financial assistance for the conduct of a Trade Practices matter is excluded from the operation of s. 13 of the ADJR Act by paragraph (f) of Schedule 2. Additionally, the court had to determine whether paragraph (f) is directed solely to proceedings to which the Commonwealth or an instrumentality is a party. The meaning of the phrase "in connection with" was also under scrutiny.

The court examined the relevant provisions of the ADJR Act and the Trade Practices Act, finding that paragraph (f) of Schedule 2 does not exclude decisions regarding the grant of financial assistance from the requirement of providing a statement of reasons. The court held that the phrase "in connection with" does not limit the scope of the decision to those proceedings where the Commonwealth or an instrumentality is a party. Instead, it encompasses any decision that impacts proceedings before the ACCC, regardless of the parties involved. Consequently, the court ruled that the decision to grant financial assistance for legal proceedings under the Trade Practices Act is subject to the requirement of providing a statement of reasons.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal. This decision reinforces the requirement for transparency and accountability in the grant of financial assistance for legal proceedings, ensuring that affected parties are provided with adequate reasons for such decisions.

Orders

Orders of the court

The appeal be dismissed.

The appellants pay the costs of the respondents of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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