Carter v Aboriginal and Torres Strait Islander Commission

[2006] FCA 921

FEDERAL COURT OF AUSTRALIA

Carter v Aboriginal and Torres Strait Islander Commission

[2006] FCA 921

ADMINISTRATIVE LAW – judicial review – loan advanced by statutory authority for purchase of house and land – secured by mortgage – repayments not maintained – power of sale under mortgage exercised by Aboriginal and Torres Strait Islander Commission – whether Commission authorised to exercise power of sale – judicial review of decisions and conduct of Commission  and Australian Government Solicitor – no tenable grounds for review – all matters relevant to defence of recovery proceedings - application dismissed

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Aboriginal Development Commission Act 1980 (Cth) s 8(c), s 25
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Anti Corruption Commission Act 1988 (WA) s 13
Freedom of Information Act 1892 (Cth)
Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth)
Transfer of Land Act 1893 (WA) s 106

JENNIFER CARTER v ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION, AUSTRALIAN GOVERNMENT SOLICITOR and COMMONWEALTH OF AUSTRALIA
WAD 130 of 2005

FRENCH J
20 JULY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 130 OF 2005

BETWEEN:

JENNIFER CARTER
Applicant

AND:

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
First Respondent

AUSTRALIAN GOVERNMENT SOLICITOR
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

20 JULY 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondents’ costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 130 OF 2005

BETWEEN:

JENNIFER CARTER
Applicant

AND:

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
First Respondent

AUSTRALIAN GOVERNMENT SOLICITOR
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	FRENCH J
DATE:	20 JULY 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. Mrs Jennifer Carter and her husband, Neil Carter, purchased a house and land in Boulder in 1989 with money advanced by the Aboriginal Development Commission (ADC).  In 1990 the Aboriginal and Torres Strait Islander Commission (ATSIC) succeeded to the assets and liabilities of the ADC. 

2. The money advanced to Mrs Carter and her husband was secured by a mortgage.  She and her husband separated in 1992.  Subsequently she failed to maintain the repayments.   Recovery action was instituted by ATSIC which stood in the shoes of the ADC as mortgagee.  This began a very long saga in the course of which Mrs Carter was given more than one opportunity to repay moneys and arrears of payments due under the mortgage by rescheduled instalments.  In 1997 she signed an agreement and consented to judgment, including an order for possession of the property.  ATSIC undertook not to enforce the judgment while she maintained repayments at an agreed rate.  In the event Mrs Carter did not maintain the repayments and, after a number of deferments, ATSIC took possession of the property and sold it, on 6 February 2002, in the exercise of its powers as mortgagee.

3. Mrs Carter instituted proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in June 2005. She raised a number of contentions against ATSIC and the Australian Government Solicitor (AGS) based upon want of authority to bring the District Court proceedings, lack of service upon her of a consent judgment and a number of other matters. For the reasons that follow, quite apart from questions of the time that has elapsed since the decision and conduct complained of, I am satisfied that none of her contentions have any merit. They were matters of a kind that could have been raised by way of defence to the action in the District Court although I am satisfied that such an exercise would have been futile. It is also very doubtful that the decisions she challenges were administrative decisions under an enactment for the purposes of the ADJR Act. The application will be dismissed with costs.

   Factual and procedural background

4. On 24 July 1989 Jennifer Carter and her husband, Neil Carter, purchased a house and land at 140 Moran Street, Boulder and became the joint registered proprietors of the land.  The purchase was financed by a loan of $78,800 from the ADC, a body corporate established by the Aboriginal Development Commission Act 1980 (Cth) (the ADC Act). The loan was secured by a registered mortgage over the land. Its terms required repayment of the principal and interest by monthly instalments of $410 over a term of 32 years.

5. The ADC loan was made in the exercise of statutory powers conferred by the ADC Act. The functions of the ADC as set out in s 8 of that Act included:

   ‘(c)to assist Aboriginals to obtain finance for housing and for other personal needs, and to provide such finance.’

6. In 1989 the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the ATSIC Act) was enacted. The new Commission, ATSIC, was established (s 6). Under s 207 of the ATSIC Act the assets and liabilities of the ADC became assets and liabilities of ATSIC. That transfer came into effect on or about 5 March 1990.

7. In 1992 Mr and Mrs Carter separated.  Mr Carter went to Fitzroy Crossing to live.  Mrs Carter remained at 140 Moran Street, Boulder and continued to meet the repayments which had then become due to ATSIC in lieu of the ADC.  In 1993 she asked ATSIC to reduce her repayments because she was only earning low wages.  That request was refused.  She fell into arrears and in February 1994 ATSIC instructed the Australian Government Solicitor (AGS) to institute proceedings to recover the outstanding arrears of the housing loan. 

8. On 24 February 1994 a letter of demand was sent to Mr and Mrs Carter by AGS.  The letter said, inter alia:

   ‘I am instructed that you have failed to pay the monthly instalments of $460 due in respect of ATSIC’s housing loan which to 23 February 1994 is in arrears to the amount of $3,860.’

   AGS threatened in the letter that, unless payment was received or satisfactory arrangements made within seven days, further action would be taken which might result in ATSIC selling the property to repay the debt.

9. On 8 June 1994, notice of default under the mortgage was issued to Mr and Mrs Carter.  By that time the moneys due under the mortgage amounted to $81,483.26.  Mr and Mrs Carter were given seven days after service of the notice to comply with it.  Further notices of default dated 19 December 1994 were sent to them on 20 December 1994.  By that time the amount under demand was $84,124.85.  Senior counsel, acting on behalf of Mrs Carter, negotiated arrangements with her to repay the debt to ATSIC by instalments.  In February 1995, AGS was instructed by ATSIC to take no further action in respect of the debt.

10. In March 1995 ATSIC informed AGS that Mr and Mrs Carter were not meeting the arrangements that had been made for repayment.  The AGS was instructed to commence proceedings for recovery of the debt.  A writ of summons was filed in the District Court of Western Australia on 18 May 1995 claiming $84,965.60 from Mr and Mrs Carter together with interest, possession of the property and costs.  The writ was served on Mrs Carter on 17 July 1995.  However, on 16 October 1995 the proceedings were discontinued following her compliance with arrangements for repayment of the debt to ATSIC.

11. In February 1996, ATSIC again instructed AGS to commence proceedings against the Carters for recovery of money due under the mortgage.  A letter of demand was sent to Mr and Mrs Carter on 22 February 1996.  Under the prior arrangements made by Mrs Carter, arrears on the housing loan were to be repaid by instalments of $250 a fortnight.  The payments had not been regularly maintained and the arrears, as at 14 February 1996, amounted to $7,025.  AGS told the Carters that ATSIC wished to review the arrangement and asked them to complete and return a statement of financial circumstances by 28 February 1996 along with a fresh proposal for payment.  Further action to recover the debt was deferred pending receipt of further payments from Mrs Carter.

12. On 6 September 1996 ATSIC instructed AGS that Mrs Carter was no longer maintaining the arrangements for the repayment of the debt.  AGS were instructed to recommence legal action.  Notices of default under the mortgage were issued on behalf of ATSIC and sent to Mr and Mrs Carter by certified mail on 11 September 1996.  These notices demanded payment of the whole of the principal sum, interest and moneys secured by the mortgage which, at 11 September 1996, amounted to $85,769.77.  The actual arrears at that time totalled $7,590.

13. ATSIC instructed AGS on 7 November 1996 to commence fresh proceedings against the Carters in the District Court.  On 20 November 1996 ATSIC gave information about the loan liability of Mr and Mrs Carter.  At that time the discharge balance on the loan amounted to $86,712.23.  Proceedings were instituted on 3 December 1996 for recovery of that amount.  ATSIC also claimed interest, possession of the property and costs. 

14. There followed extensive correspondence between AGS and Mr Ian Viner QC, who was assisting Mrs Carter in negotiations in an endeavour to settle the dispute.  The upshot of those negotiations was that Mrs Carter agreed to pay $140 per week to ATSIC in reduction of the secured debt and the sum of $50 per week in reduction of arrears of mortgage repayments.  She agreed to consent to judgment.  This appears from a letter dated 13 March 1997 from Mr Viner QC to AGS.  On 13 June 1997 Mrs Carter signed an agreement with ATSIC in which she consented to judgment being entered in terms of a minute of consent orders which was annexed to the agreement.  ATSIC agreed, that while it continued to receive payments from her in accordance with the agreement, it would not execute on the judgment obtained in the District Court action.  The agreement provided that should any weekly payment not be received by ATSIC in accordance with its provisions ATSIC would be entitled, without notice to Mrs Carter, to proceed to execute on the judgment.  In her affidavit Mrs Carter said she was ‘required to sign’ the agreement.  She said she was then ‘forced to sign’ a minute of consent orders prepared by AGS.  She said that she was ‘… not given any warnings about signing the Minute of Consent Order until straight after I signed the agreement’.

15. Whatever gloss Mrs Carter sought to put on the signing of the agreement and the minute of consent orders by use of the words such as ‘required’ and ‘forced’, I reject the proposition that she entered into the agreement on other than a voluntary basis.  She had the benefit of the services of senior counsel and as appears from her own written submissions and affidavit material she is well educated and highly literate.  The minute of consent orders provided for judgment to be entered for ATSIC against her only, in the sum of $86,704.23 together with interest at the rate of 7 per cent per annum from 20 November 1996 to the date of judgment.  It also provided that she would, within 28 days after service on her of the judgment, give ATSIC possession of the land at 140 Moran Road, Boulder.  She was to pay ATSIC’s costs of the action fixed at $745.  Judgment was entered in those terms when the consent document was filed on 7 July 1997.  The judgment as extracted was misdated 19 June 1997. 

16. From 28 February 1997 until 5 November 1999, according to Mrs Carter, she paid a total of $15,000 in repayments at $190 per week.  However, on 24 March 1999 ATSIC wrote to AGS advising that Mrs Carter had defaulted with her loan repayments and asking that AGS write to her advising that unless she recommenced repayments or made acceptable alternative arrangements, ATSIC might have no alternative but to proceed under the agreement.  According to the letter Mrs Carter stopped making regular repayments on 27 November 1998 and her arrears amounted to $3,100. 

17. On 1 April 1999 AGS wrote to Mrs Carter saying that it had been instructed by ATSIC that she had failed to meet the terms of the agreement and was in arrears to the extent of $3,100.  The letter went on:

    ‘The Commission now wishes to execute the judgment and I enclose by way of service a copy of the judgment.

    As per paragraph 2 of the judgment, I hereby give you 28 days notice of the Commission’s intention to take possession of the above property.’

18. A writ of possession issued out of the District Court on 11 August 1999.  However, after further representation from Mr Viner QC ATSIC agreed to allow Mrs Carter an opportunity to make arrangements for refinancing.  By a letter dated 2 November 1999 Mr Viner QC advised AGS that the National Australia Bank  (the NAB) was prepared to provide finance to Mrs Carter to pay ATSIC out.  On 4 November 1999 AGS instructed the Sheriff’s office to suspend action until further notice. 

19. On 7 December 1999 the NAB approved Mrs Carter’s application for a loan of $92,000 for the purchase of the property.  The approval was valid for three months.  It was expressed, in a letter from the NAB, to be subject to Mrs Carter’s acceptance of the NAB’s normal banking terms and conditions which would be advised in due course.  Prior to settlement she was required to provide a copy of a transfer of the land and a Property Insurance Policy. 

20. According to Mrs Carter, legal documents were posted to Neil Carter to sign so that the property could be transferred into her name alone.  However there was a delay in that process because of cyclones in the Kimberley area in early 2000.  Major flooding isolated Fitzroy Crossing for several weeks.  In the meantime AGS wrote to Mr Viner QC on 13 December 1999 and 25 January 2000.  It asked for the Carters to return a Borrowers’ Authority which it supplied to enable ATSIC to obtain the relevant documents required to be produced at settlement.  The letter of 25 January 2000 asked when the Borrowers’ Authority would be returned.  There was no response to either of these letters.  On 7 March 2000 AGS received instructions from ATSIC to take legal action to recover the debt due to ATSIC in full and to proceed with execution of the writ of possession.  It wrote to Mr Viner QC on that date advising him accordingly and asking that he inform Mrs Carter that she would be required to vacate the premises by 15 March 2000. 

21. Mr Viner QC made further representations to the effect that the property would be transferred into Mrs Carter’s name alone pursuant to proposed consent orders in the Family Court.  ATSIC again agreed to defer taking possession of the property.  AGS were advised by Mr Viner QC on 25 July 2000 that orders had been made in the Family Court to enable the property to be transferred into Mrs Carter’s name alone.  He did not expect there to be any undue delay in the completion of the refinancing. 

22. The writ of possession issued out of the District Court on 11 August 1999 expired on 10 August 2000.  On 18 August 2000 AGS again received instructions from ATSIC to take possession of the property.  It wrote to Mr Viner QC on 21 August 2000 advising of ATSIC’s instructions to apply for the issue of a fresh writ of possession.  Mr Viner QC was advised that ATSIC had not been provided with a definite date by which settlement was likely to take place.  A fresh writ of possession was issued out of the District Court on 7 September 2000.  The writ was sent by AGS to the District Court Bailiff on 11 September 2000 and on 5 October 2000 AGS was advised by the Sheriff’s office that the property had been repossessed.  The amount of the debt was shown on the writ as $90,957.78.  Interest to 19 September 2000 was $20,683.84.  This made up a total of $114,899.56. 

23. On 10 October 2000 Mr Viner QC advised AGS that Mrs Carter’s financial arrangements were finally in place.  He enclosed a further letter of approval of finance from the NAB bearing that date.  Again, the approval was valid for a period of three months.  It required, among other things, satisfaction of certain conditions.  These included the provision of the copy of a transfer of the land, a Property Insurance Policy and a personal guarantee and indemnity to be given by Mr Viner QC.  Evidence was also required that Credit Reference Association of Australia defaults had been cleared and that her personal credit file had been amended accordingly. 

24. On 11 October 2000 AGS wrote back to Mr Viner QC.  The outstanding amount at that time was said to be $98,253.08 including fees and other disbursements.  AGS confirmed that ATSIC had taken possession of the property and would proceed to sell it should they not receive information satisfying them that it was being refinanced with the NAB by 24 October 2000. 

25. On 19 October 2000 AGS wrote to Mr Viner QC noting that Mrs Carter had resumed occupancy of the house and asserted that she was trespassing.  AGS asked if Mr Viner QC could advise of the position in relation to the refinancing of the property. 

26. There were further delays and no evidence was provided of refinancing or of a settlement date.  AGS then received instructions from ATSIC to proceed to repossess and sell the property.  AGS wrote to Mr Viner QC on 21 December 2000 advising him.  However, following further representations from Mr Viner QC, ATSIC again agreed to defer repossession until 8 January 2001. 

27. On 22 January 2001 Mr James of Brown James and Associates, Real Estate Agents, informed AGS that he had taken possession of the property but that Mrs Carter would return. AGS confirmed that ATSIC’s instructions were to proceed to sell the property and take whatever action was necessary to keep Mrs Carter away from it. Mr James returned to retake possession on 2 February 2001. However, on 7 February 2001 he advised AGS that Mrs Carter had returned to the property. AGS then asked police in Kalgoorlie to remove Mrs Carter. On 7 February 2001, Mrs Carter was charged with being on premises without lawful excuse, contrary to s 66(13) of the Police Act 1892 (WA). She was released on bail on condition that she not enter the property although arrangements were made for her to collect her personal belongings on 8 and 16 February 2001.

28. The property was listed for sale in March 2001.  It was valued at $110,000 by RC Lunt & Associates.  On 29 April 2001 Mrs Carter wrote to the Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs (the Minister) asking him to intervene in the sale of the property on the basis that the writ of possession was invalid.  The Minister, after AGS had provided advice to ATSIC which was communicated to the Minister, advised Mrs Carter on 11 June 2001 that her concerns had been investigated.  He told her that he had been advised that the actions which ATSIC took were in accordance with the provisions of the mortgage.  Mrs Carter wrote to Chief Judge Hammond of the District Court on 2 July 2001 alleging that the writ of possession was invalid.  There were subsequent proceedings in the Court of Petty Sessions in relation to the charge against Mrs Carter.  She was convicted on 13 September 2001 and placed on probation. 

29. On 17 September 2001 Mrs Carter told AGS that she had lodged an official complaint with the Anti Corruption Commission about the way in which the writ of possession against the property was obtained.  She made reference in her letter to AGS to the filing of documents in the Perth District Court without any authorising signature and without supporting documents from ATSIC.  She also made reference to the bailiff ‘altering figures’. 

30. On 29 November 2001 the Anti Corruption Commission advised Mrs Carter that it had examined her allegations to determine whether investigative or other action was warranted.  The Commission told her that the information she had provided had been considered at its last meeting.  As the allegation did not fall within s 13 of the Anti Corruption Commission Act 1988 (WA) it was not within the jurisdiction of the Commission.  No further action would be taken and the Commission would close its file on the matter.

1. ATSIC accepted an offer of $105,000 on 14 December 2001.  Settlement took place on 6 February 2002.  ATSIC received the sum of $82,473.34 from the proceeds.  The difference between that sum and the purchase price was taken up with the selling agent’s commission, shire rates, water rates and other fees and charges. 

2. In April 2003 Mrs Carter was granted access by ATSIC to her housing loan files under the Freedom of Information Act 1982 (Cth).

3. In September 2004 ATSIC instructed AGS to commence enforcement proceedings against Mrs Carter for payment of the balance of the outstanding judgment debt in the District Court proceedings.  The amount involved was $31,619.20 as at 18 August 2004.  AGS filed a Chamber Summons in the District Court on 25 November 2004 for an order that Mrs Carter be orally examined.  An order was made on 9 December 2004 for her oral examination.  However Mrs Carter did not attend the hearing on 3 February 2005.  The oral examination was re-listed for 19 April 2005. 

4. In the meantime ATSIC was abolished by the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) with effect from 24 March 2005. On 19 April 2005 Mrs Carter’s oral examination was re-listed in the District Court for 28 June 2005 by order of Commissioner Keene.

5. On 2 June 2005 Mrs Carter instituted proceedings in this Court to review decisions and conduct of AGS and ATSIC in relation to the sale of the property.  The hearing in the District Court proceedings listed for 28 June 2005 was adjourned as the order for Mrs Carter’s attendance had not been served.  By letter dated 28 July 2005 AGS advised the District Court that it had instructions to seek the suspension of further action pending clarification of the correct entity to be substituted as plaintiff in the District Court following the abolition of ATSIC. 

6. On 3 November 2005 a Registrar in the District Court ordered that the plaintiff in those proceedings be changed to Indigenous Business Australia (IBA).  AGS were instructed by IBA to proceed with enforcement action to recover the outstanding debt from Mrs Carter. 

7. The present proceedings were heard on 6 June 2006. 

   The application for review

8. The application for review filed by Mrs Carter on 2 June 2005, as amended on 12 October 2005, named ATSIC as first respondent, AGS as second respondent and the Commonwealth of Australia as third respondent.  Because of the abolition of ATSIC no claim is, or can be, pursued against it.  In her application Mrs Carter purports to seek a review of ‘the decision’ of AGS in giving instructions on 2 January 2001 to Brown James & Associates Real Estate Agent in Kalgoorlie to sell her property ‘… unlawfully and on fraudulent grounds without the authorization of the ATSIC Board of Commissioners (pursuant to Section 21(2) and 45(1)(a) of the ATSIC Act 1989); and with no evidence of Judgment’.  She seeks review of the conduct of the Commonwealth apparently on the basis that ATSIC was not authorised to give instructions to AGS to repossess her property. 

9. Mrs Carter also claims to seek review of the decision ‘… in which money was offered to myself and Neil Carter under Part V of the former Aboriginal Development Commission Act 1980, which is evident the money should never have been repaid’ (sic).

10. She says she is aggrieved by the decision of AGS and the conduct of ATSIC because AGS increased her mortgage finance ‘fraudulently, without evidence and supporting material, and then refused to accept a bank loan of $92,000 from me to re-finance my property, thus enabling [AGS] to execute my property’.  She asserts her belief that ATSIC was fully aware of the ‘fraudulent decision made by [AGS]’. 

11. Mrs Carter added a general allegation that ATSIC and AGS had ‘seriously breached the Aboriginal & Torres Strait Islander Commission Act 1989 on numerous occasions, and failed to take into account ATSIC’s Home Loan Policy approved annually by the ATSIC Board of Commissioners’.

12. The grounds of the application comprised an unparticularised listing of the grounds available under the ADJR Act.

13. By way of relief Mrs Carter claimed an order that she be reimbursed for all costs associated with the loss of her property and an order for the Commonwealth and AGS to pay damages and compensation for humiliation suffered by her as a result of the loss of the property.  Other orders of an ancillary character were also sought. 

    The contentions and their merits

14. Mrs Carter’s argument was encapsulated in a ‘Statement of Claim’ filed 29 May 2006.  She repeated the contention in the statement of claim that AGS did not have ‘written authorization’ from ATSIC to give instructions to a real estate agent in Kalgoorlie to sell her property nor to give instructions to the Kalgoorlie police to remove her from her property.  She claimed in the statement of claim that she had been treated unfairly by ATSIC and AGS ever since a case concerned with the winding up of a body known as the Murnkurni Women’s Aboriginal Corporation.  Mrs Carter said that, at the time that an application for the winding up of that corporation was pending in the Federal Court, she was an ATSIC Regional Councillor.  She made a reference to an alleged failure by AGS to ‘… declare in court a $13,000 they received from ATSIC, for legal costs, when in fact legal costs was supposed to be recovered from the sale of the building owned by Murnkurni’ (sic).  She said that this sum was later returned to ATSIC after she raised the matter at an ATSIC Regional  Council meeting.  She claimed that soon after this court case AGS gave legal advice to ATSIC to suspend her as an ATSIC Regional Councillor.  She asserted her belief that the sale of the property at 140 Moran Street, Boulder stemmed from the Murnkurni court case.  She said there was no evidence that ATSIC’s Board of Commissioners made the decision to sell the property. 

15. Mrs Carter claimed that ATSIC staff did not have power to make decisions on behalf of the Board of Commissioners unless there was a delegation process authorised by the Board.  Her core claim appears to be that ATSIC and AGS were not authorised to make the decision to sell her property. 

16. In oral argument at the hearing, Mrs Carter advanced a submission that the money provided to her by the ADC was a grant instead of a loan. This, of course, was entirely inconsistent with her execution of a mortgage agreement under which she assumed an obligation to repay the moneys. It was also a matter which, if there were any substance in it, could have been raised in the District Court. In this context it may be noted that s 25 of the ADC Act provided:

    ‘(1)     Moneys of the General Fund may be applied in making loans, on such terms and conditions as the Commission determines, to Aboriginals, and their spouses, for the following purposes:

    (a)the erection or purchase of dwellings or the purchase of land on which dwellings are to be erected or situated; …’

    ATSIC also had power to make grants of moneys to Aboriginal bodies on such terms and conditions as were determined by ATSIC.  Plainly, however, the advance made to Mrs Carter and her husband was by way of a loan.

17. Next Mrs Carter referred to s 21 of the Act.  That section imposed restrictions on the rights of individuals or bodies who had been financed in the acquisition of interest in land by ATSIC so that such individual or body could not dispose of the interest without ATSIC’s written consent.  Mrs Carter seemed to think that this provision imposed some restriction on the power of ATSIC to dispose of her property.  This was not the case. 

18. She then addressed the question of the authority of staff members of the ADC and/or ATSIC to enforce the mortgage without a specific delegation from their respective Commissions.  However, both the ADC and ATSIC could take recovery action through their employees without the requirement of any specific delegation.  The right to pursue recovery was conferred as between ATSIC and the Carters by the terms of the mortgage itself.

19. Mrs Carter next raised a point about the provisions of the Transfer of Land Act 1893 (WA) and the requirement in s 106 for a notice of default to be served on the mortgagor. Whatever point she was trying to make in that case, was a point which could have been taken in the District Court. Mrs Carter also raised a question about the service of the judgment on her.

20. Counsel for the respondents contended that none of the decisions or conduct the subject of the application was a decision or conduct leading up to the making of a decision under an enactment. On that basis it was said that the Court did not have jurisdiction under the ADJR Act to review the decisions and conduct complained of. I am inclined to agree with that proposition. However, even if the Court did have jurisdiction, none of the submissions made by Mrs Carter are tenable. None of them has any merit in law. If they did, it was open for Mrs Carter to raise them by way of defence to the recovery proceedings in the District Court. What she in fact did, was to sign an agreement to compromise the action and to consent to judgment.

21. Behind the complex history, the simple reality is that Mr and Mrs Carter were advanced moneys for the purchase of a home.  They were advanced those moneys on condition that they repay them in accordance with the terms of a mortgage which secured the advance.  They did not comply with the terms of the mortgage.  Mrs Carter did not honour the terms of an agreement which she subsequently entered into in order to prevent repossession of her property.  The judgment to which she consented pursuant to that agreement was subsequently executed.  No basis has been shown for the grant of any relief in her favour.

    Conclusion

22. For the preceding reasons, I am satisfied that the application is entirely without merit.  It is the end of a long saga in the course of which Mrs Carter has been given more than one opportunity to comply with her obligations.  The application will be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:            20 July 2006

Mrs Carter appeared in person
Counsel for the Second and Third Respondents:	Mr PR Macliver
Solicitor for the Second and Third Respondents:	Australian Government Solicitor
Date of Hearing:	6 June 2006
Date of Judgment:	20 July 2006