Century Metals & Mining Nl v Yeomans, R.J. , the Liquidator of the Phosphate Mining Corporation of Christmas Island & Min. for Arts & Territories

[1988] FCA 679

~UDGMENT

C A T C H W O R D S

EVIDENCE - Judicial Review - confidential report embodying impugned recommendations - objection to competency - question whether recommendations are "decisions" - call for production of report - production directed as on terms as to disclosure.

Phosphate Mining Corporation of Christmas Island (Winding Up)

Ordinance 1987

Administrative Decisions (Judicial Review) Act 1977

FRENCH J.

PERTH

27 SEPTEMBER 1988
IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	)
GENERAL DIVISION	) NO. WAG 122 of 1988

B E T W E E N :	CENTURY	METALS	MI ING	AND
First Applicant
and

THE UNION OF CHRISTMAS ISLAND

WORKERS

Second Applicant

and

ROBERT J YEOMANS, THE LIQUIDATOR
OF THE PHOSPHATE MINING CORPORATION

OF CHRISTMAS ISLAND

First Respondent

and

THE MINISTER FOR ARTS AND

TERRITORIES

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.

DATE OF ORDER	27 SEPTEMBER 1988
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The second respondent do produce to the Court and to

counsel for the applicants copy a of the first

respondent's report submitted to the second respondent

under cover of a letter dated 23 June 1988.

'

L.

2 . Unt i l fu r ther o der counse l for the appl icants a re

d i r e c t e d t h a t t h e y n o t make or permi t to be made f u r t h e r

copies of the repor t nor to d isc lose i t s con ten t s o r any

pa r t t he reo f any t o the r pa r ty ( i nc lud ing t he i r

c l i en t s ) w i thou t t he l eave of the Court .

Note:  Settlement and entry of o r d e r s i s d e a l t w i t h i n

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF AUSTRALIA	1

WESTERN AUSTRALIAN 1

DISTRICT REGISTRY	1
GENERAL DIVISION	) No. WAG 122 of 1988

B E T W E E N :  CENTURY METALS AND MINING NL

First Applicant

and

THE UNION OF CHRISTMAS ISLAND

WORKERS

Second Applicant

and

ROBERT J YEOMANS, THE LIQUIDATOR
OF THE PHOSPHATE MINING CORPORATION

OF CHRISTMAS ISLAND

First Respondent

and

THE MINISTER FOR ARTS AND

TERRITORIES

Second Respondent

CORAM :  FRENCH J.
27 SEPTEMBER 1988

REASONS FOR RULING ON PRODUCTION OF REPORT

BY FIRST RESPONDENT TO SECOND RESPONDENT

On 11 November 1987 the then Minister for Territories

announced the closure of the Christmas Island Phosphate Mine and

the appointment of a liquidator to the statutory corporation known

as the "Phosphate Mining Corporation of Christmas Island". The

liquidator was appointed pursuant to the provisions of the

L .

Phosphate Mining Corporation	of	Christmas Island (winding Up)
Ordinance 1987.	He was by 8.14 of the Ordinance empowered,	inter

alia, to sell or otherwise dispose of the property of the

corporation. In that regard he advertised inviting proposals

"from organisations interested in purchasing the assets of PMCI

and recommencing mining operations on Christmas Island". He

contends that the question of who should recommence mining

operations was not part of his brief as liquidator, but the result of a request from the Minister that he assess and make

recommendations concerning proposals from parties interested	in
that operation.

While the liquidator had, under his Ordinance,

dispositive powers over the assets of the corporation,it is said

that they did not include the right to mine the land. One proposal for the recommencement of mining operations came from the

first applicant. Another came from Elders Resources Limited.

In the event the liquidator furnished a report and

recommendations to the Minister on or about 23 June 1988. After

receiving that report the Minister wrote to the liquidator

requesting that he commence in principal negotiations with Elders

Resources Limited on arrangements based on the Elders' proposal.

He was also asked to negotiate a comprehensive agreement covering

"the assets, of both the Commonwealth and the Phosphate Mining

Corporation of Christmas Island,	which	will	be required for
further mining".

The applicants have instituted these proceedings under

the Administrative Decisions (Judicial Review) Act 1977 and	seek
"judicial review" of the various decisions of the first	and second

respondents, including the decision of the first respondent:

"(a) to assess and make recommendations in relation to

proposals to recommence phosphate mining on

Christmas Island.

(b) to choose the proposal of Elders Resources Limited.

(c) to recommend the proposal of Elders Resources

Limited to the Second Respondent."

Review is also sought of decisions of the second respondent which include:

"(a) To request the First Respondent to assess and make

recommendations in relation to the recommencement

of phosphate mining in Christmas Island.

(b) To accept the recommendation of Elders Resources Limited by the First Respondent.

(c) To request the First Respondent enter to

negotiations with Elders Resources Limited.

The respondents have each filed a notice of objection to

competency, raising in broad terms the question whether the

impugned decisions were decisions at all for the purposes of the

ADJR Act and if so, whether they were decisions made under an

enactment. The hearing of the objection has proceeded largely on

the basis of an agreed statement of facts and certain other

documents tendered without objection.

However in the course of the hearing of the objection,

counsel for the applicants has called for the production of the

first respondent's report. Counsel for the respondents objects to

produce it on the basis that its content is not relevant to the

characterisation of the impugned decisions and that it is, in any event, confidential and includes sensitive matter going to the

various proposals that were tendered.

The questions raised on the objection as to competency

require me to determine with some precision the decisions said to

have been made,	whether they are decisions in	the relevant sense
and whether it can be	said that they were made under	enactments.

As I understand the thrust of the respondents' argument so far,

they say that in making the recommendations to the Minister the

liquidator acted in a role that was outside the statutory

framework of his powers and duties as liquidator. Plainly	the
relationship between the recommendatory role and the decision	that
the liquidator has to make in relation to the disposal	of assets,

are linked and it may be a matter for debate before me whether the

two functions, if there are	two functions, can or have merged	at
some point.

For the moment it seems to me that it may be important

for the Court to see the precise expression of and basis for the

liquidator's recommendation. That does not mean it will be

necessary for the whole report to be used or disclosed, but the

parties should have an opportunity to put argument on the

relevance of its content to the matter now in issue.

I propose therefore to direct that the respondents

produce the report to the Court and to counsel for the applicants on the basis that it remain confidential to them. The question of

the use of any particular parts of the report in evidence can be

argued in the course of addresses and I will rule upon that as

part of my decision on the question of competency. I propose

therefore to direct in the following terms:-

1. The second respondent do produce to the Court and to

counsel for the applicants copy a of the first

respondent's report submitted to the second respondent

under cover of a letter dated 23 June 1988.

2. Counsel for the applicants are directed until further

order that they not make or permit to be made further

copies of the report nor to disclose its contents or any part thereof to any other party including their clients

without the leave of the court.

It may be necessary for indirect reference to be made to the

contents of the report in argument on the hearing of this

objection. Should a more detailed reference	be required, then the
question of whether that portion of the argument should be held	in
confidence can be dealt with.

I certify that this and the preceding
four ( 4 ) pages are a true copy	of the

Reasons for Judgment of his Honour

Justice French.

Associate:

Date:  2 7 c/ . b S

Couns e1 f or the Applican Its: Mr R. Ellicott Q.C. and Mr P. Foss

Solicitors for the Applicants: Mallesons Stephen Jaques

Counsel for the First Respondent: Mr A. Chernov Q.C. and Mr D.

Clyne

Solicitors f o r the First Respondent: Sly and Weigall

Counsel for the Second Respondent:	Mr A.	Chernov p.c. and Mr P.
Macliver

Solicitors for	the	Second	Respondent:	Australian	Government
Solicitor

Date of Judgment:  2 1 September 1988