Christie v Australian Communications and Media Authority
[2018] FCCA 1796
•5 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHRISTIE v AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY | [2018] FCCA 1796 |
| Catchwords: ADMINISTRATIVE LAW – Radio communications licence transferred to applicant and co-licensee – dispute between co-licensees – respondent authority required to approve form on which application for transfer of licence is made – applicant did not sign, consent to or know of application or transfer – applicant seeks to renew licence and is informed of transfer – applicant objected to transfer – respondent authority gave reasons – licence re-transferred – applicant objected – respondent authority gave reasons for second transfer – applicant issues proceeding seeking judicial review of decision relating to second transfer of licence – application for extension of time in which to seek judicial review of decision relating to first transfer of licence. PRACTICE AND PROCEDURE – Extension of time application – applicable principles – applicant a person whose interests adversely affected by the decision – whether acceptable explanation for delay – proceeding commenced promptly after statement of reasons given relating to second transfer of licence but proposed proceeding significantly out of time in relation to first transfer – delays of similar periods not determinative of the refusal of relief – explanation not wholly satisfactory but not unacceptable – whether prejudice to third parties – third parties on notice that transfer was objected to – merits of substantive application – applicant’s interests adversely affected by decision – function of undertaking a fuller consideration of merits of substantive claim not appropriate to the exercise of discretion to grant an extension of time – applicant’s claim could not be considered to have no reasonable prospect of success – fraud in context of public law – whether arguable that fraudulent conduct induced or affected and thereby stultified the respondent’s decision – whether arguable that a respondent’s decision affected by failure to take into account relevant considerations – whether arguable respondent authority did not consider if a valid application had been placed before it STATUTORY INTERPRETATION – Licensee defined by applicable legislation to mean the person specified in the license – applicant and co-licensee specified in licence – only co-licensee signed transfer – respondent authorised to transfer licence where application for transfer signed by a licensee – whether signature of both co-licensees required for valid application – whether singular includes plural – whether application for transfer signed only by co-licensee was valid – extension of time granted. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2C, 18A, 23 Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 11, 13 |
| Cases cited: AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 Jackamarra v Krakouer (1998) 195 CLR 516 Johnson v Williams [2000] FCA 3; (2000) 58 ALD 1 at [24]-[25] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 |
| Other texts cited: Bennion on Statutory Interpretation, 7th Ed (2017) |
| Applicant: | JUSTIN CHRISTIE T/A SURFSIDE RADIO NETWORK |
| Respondent: | AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY |
| File Number: | MLG 387 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 July 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Goodwin |
| Solicitors for the Respondent: | The Australian Government Solicitor |
ORDERS
The time fixed by s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by rule 42.03 of the Federal Circuit Court Rules 2001 as times within which the applicant might apply for the relief sought be extended to 4.00pm on Friday, 31 August 2018.
Pursuant to r 12.02 of the Federal Circuit Court Rules 2001 a referral certificate be issued by the Registrar of the Court enabling the applicant an opportunity to obtain the assistance of Pro Bono counsel.
By 4.00pm on Friday, 31 August 2018, the applicant file and serve any application for judicial review in relation to the decision of the Australian Communications and Media Authority made on 26 August 2016 to transfer to Peter Tate, Transmitter licence No 410094.
Pursuant to s 34(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 27.01 of the Federal Circuit Court Rules 2001 the proceeding be referred to mediation.
By 4.00pm on Thursday, 12 July 2018, the parties file and serve submissions with respect to the costs of this application (not exceeding 3 pages, 1.5 spacing, 12 font).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 387 of 2018
| JUSTIN CHRISTIE T/A SURFSIDE RADIO NETWORK |
Applicant
And
| AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why an order has been made granting the applicant, Mr Christie, an extension of time in which to commence a proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) seeking review of a decision of the Australian Communications and Media Authority (Authority). The Authority’s decision, made on 26 August 2016, was to approve the transfer of Transmitter licence No 410094 (Licence) which was then co-owned by Mr Christie with Mr Michael Loughnan. Since that date the Authority again transferred the Licence on 21 June 2017.
Mr Christie’s fundamental complaint is that the transfer of the Licence was affected by Mr Loughnan without his knowledge or consent.
An understanding of why I have concluded that the extension of time should be granted requires consideration of the history of dealings in relation to the Licence. The matters set out below are drawn from the court book which was filed for the purposes of the application for an extension of time and the affidavits filed by Mr Christie. For the avoidance of doubt they do not represent any final findings of fact.
Background
First transfer of licence
On 19 October 2011, an application for the transfer of the Licence was lodged with the Authority. On the face of that application, the transferor of the Licence was Paul David Jacobs and the transferees were Messrs Loughnan and Christie whose trading name was described as Surfside Radio Network (Surfside). Mr Christie says that he is the sole proprietor of Surfside. The postal address of the transferees was stated as 9 Overton Road, Seaford. The form also included a reference to the ‘client number’ of the transferees (being No 20004935).
In addition, the application form required that the licensor provide details identifying the person who would be representing the organisation. The details provided in that section of the form had been completed and specified Mr Loughnan as the licensor’s representative. He was described in the form as being a technician. Mr Christie says that Mr Loughnan was engaged as a technician on a voluntary basis and that Mr Loughnan performed engineering services as a consultant. Mr Loughnan’s address together with various telephone numbers and an email address were also provided. The transfer application was signed by Messrs Jacobs and Loughnan, but not by Mr Christie.
By s 131AB of the Radiocommunications Act 1982 (Cth) (Act), the Authority was authorised to transfer an Apparatus licence[1] to a transferee. The Authority duly transferred the Licence then held by Mr Jacobs to Messrs Loughnan and Christie.
[1]‘Apparatus licence’ means an apparatus licence issued under Part 3.3 and includes a transmitter licence; see ss 5, 97(1)(a), 98.
Mr Christie adduced in evidence a copy of Apparatus Licence No 410094 which had been issued by the Authority on 23 January 2013. The Licence identified the licensees as Messrs Loughnan and Christie, Surfside, of 9 Overton Road, Seaford.
It appears that upon approval of the transfer of the licence, Surfside operated the radiocommunication transmitter and broadcast radio with a designated callsign 4Q116.
The Licence was valid for a certain term but open to renewal and was renewed from time to time. For present purposes, I note that:
(a)on 12 December 2011, the Authority issued a licence renewal notice which was addressed to Mr Christie alone. The renewal notice was addressed to him at 9 Overton Road, Seaford;
(b)on 10 January 2013, 12 January 2015 and again on 15 January 2016, the Authority issued a licence renewal notice which was addressed to Messrs Loughnan and Christie of Surfside at 9 Overton Road, Seaford; and
(c)the Licence fell due for renewal on 22 February 2017.
Second transfer of licence
On 12 August 2016, Mr Loughnan signed an application for the transfer of the Licence to Mr Peter Tate (who also signed the form on that date). In the first section of the transfer form which bore the heading Current licensee’s (seller) details, the form had been completed with: (a) the client No 20004935 (b) the name of the contact – Mr Loughnan; (c) the organisation and trading names – Surfside Radio Network; and (d) the postal address, residential address, telephone numbers and email address.
In the case of the postal address of Surfside and the residential address of the transferee, the form had been completed with the address, 8 Bates Avenue, Thomastown. As concerned mobile phone and email address, Mr Loughnan’s details were inserted.
A section of the approved form titled Proposed licensee’s (buyer) details had been completed and identified Mr Peter Tate as the proposed buyer and provided his address and contact details.
On the final page of the form was a section titled Proposed licensee’s (transferee’s) declaration, one part of which provided for the name of the current licensee to be inserted and which had been completed by naming “Michael Loughnan & Justin Christie” as licensee.
Below the final section of the form was a note which read:
HI GUYS
Please email bank info & BPay or Invoice which shows info for me to pay into. Please As Soon As Possible. Thanks for Prompt Attention
It is presently unclear why Mr Tate’s note referred to ‘Guys’ (plural) rather than to Mr Loughnan alone.
On 17 August 2016, the Authority received the application. On 26 August 2016, a delegate of the Authority approved this transfer.
On 16 February 2017, Mr Christie sent the Authority an email advising that he had not received a renewal notice and enquiring whether he could pay the fee for renewal of the Licence using the previous year’s notice. As a result of this enquiry Mr Christie discovered the Licence had been transferred to Mr Tate. A hand written notation at the foot of the email stated: “Can’t leap to conclusions – we need to investigate!” The author of that note is presently unknown.
On 20 February 2017, Mr Christie sent the Authority an email stating that he had been unaware of, and had not authorised, the transfer of the licence to Mr Tate. A telephone conversation between Mr Christie and an officer of the Authority followed. The following day, Mr Christie requested, and the Authority provided, a copy of the transfer. He also requested an explanation for why the transfer had been made.
On 22 February 2017, Mr Williamson, an officer of the Authority sent Mr Christie a redacted copy of the transfer, advised that it would treat the request for an explanation as a request for a statement of reasons pursuant to s 13 of the ADJR Act and suggested that he obtain legal advice. He was invited to lodge any complaint he wished to make with the Commonwealth Ombudsman. It is not clear if he did so.
In ensuing correspondence with the Authority, Mr Christie has consistently maintained that he did not know of, or authorise, the transfer of the Licence to Mr Tate.
It appears that Mr Christie and Mr Loughnan have had a dispute of some kind and that Mr Loughnan had no involvement in the operation of the Licence or broadcasting business of Surfside for some two years before the Licence was transferred to Mr Tate. Mr Christie has referred to the existence of a chain of emails with Mr Loughnan in the period 2014 – 2016 concerning this dispute. He deposed that Mr Loughnan made no attempt to inform him of the transfer of the Licence to Mr Tate at any time and that he only discovered the transfer had occurred after he made an enquiry of the Authority as to the need to pay the annual renewal fee on the Licence in early 2017.
Third transfer of licence
On 23 March 2017, Mr Tate lodged an application for the transfer of the licence to Celestial Industries Pty Ltd (Celestial). The application for the transfer of the licence was signed on behalf of Celestial by Mr Jeffrey Shaw. The relationship of Mr Tate and Celestial is unclear.
On 26 March 2017, Mr Christie sent the Authority an email which threatened legal proceedings if the transfer to Celestial proceeded. Mr Christie’s lawyer was an addressee of this email.
Request for reasons – ADJR
On 20 April 2017, solicitors then acting for Mr Christie wrote to the Authority requesting a statement of reasons for the decision to approve the transfer of the Licence to Mr Tate.
On 12 May 2017, a delegate of the Authority prepared that statement of reasons (first reasons). The first reasons were sent by email to Mr Christie’s solicitor on that date. In that email the Authority disclosed to Mr Christie’s solicitor that Mr Tate had made an application for the transfer of the Licence to Celestial and sought Mr Christie’s consent to disclose his complaint to both Mr Tate and Celestial.
The first reasons recited the relevant legislative background to the transfer of licences under the Act and the history of the subject Licence from 2011 to August 2016 from Mr Jacobs to Messrs Loughnan and Christie and then to Mr Tate respectively. The first reasons referred to the transfer of the Licence to Mr Tate and noted that the application “identified both Mr Loughnan and Mr Christie as licensees of the Licence.” The first reasons identified Mr Loughnan as General Manager of Surfside which it described as not being an incorporated entity.
The first reasons confirm that the delegate who approved the transfer to Mr Tate knew that both Messrs Loughnan and Christie were licensees of the Licence, that Surfside was merely a trading name and that Mr Christie had not signed the transfer application.
Concerning the formal requirements for a transfer, the first reasons recorded that the application must be in a form approved by the Authority and must be signed by both a licensee and the proposed transferee. The first reasons also identified various criteria which the Authority was required to, and which it might, take into account.
The first reasons recorded that the Authority had delegated the power to transfer licences to, amongst others, employees having status of APS Level 4 staff and that such a person, Ms Casaretto, had made the decision to transfer the Licence. The first reasons recorded that a general policy respecting transfer applications was that they should be given effect in the absence of some clear reason or consideration arising from the Act to the opposite effect and stated:
Upon receipt of the Transfer Application, I checked that it was signed by both a licensee of the Licence and the proposed transferee, as required by subsection 131AA(2) [of the Act] (emphasis added)
The delegate evidently recognised that in this case the licensee comprised two persons but regarded it as sufficient that a licensee had signed the application for the transfer of the Licence.
The first reasons disclose that the delegate identified no disqualifying reason for refusing the application and that the general policy should be given effect. The delegate concluded that there was no reason to depart from the general policy and transferred the Licence to Mr Tate.
At some point, Mr Christie sought that the Authority conduct a review of its decision to transfer the Licence to Mr Tate. Responding to that request, Mr Mark Williamson on behalf of the Authority sent an email to Mr Christie stating “the transfer has occurred on the application of your co-licensee, and the ACMA is unable to revisit the decision.”It is not clear whether consideration was given to the implications arising from the fact that the Licence was co-owned by both Mr Christie and Mr Loughnan; in particular, the requirements for a valid transfer.
On 12 May 2017, a delegate of the Authority requested that Mr Christie provide submissions addressing a proposed transfer of the Licence by Mr Tate to Celestial.
Consideration of transfer to Celestial
On 17 May 2017, Mr Christie complained that the Authority had not informed him of Mr Tate’s proposed transfer to Celestial until 12 May 2017. Mr Christie was again invited to make submissions on the proposed transfer. By further emails sent between 17-19 May 2017, the Authority invited Mr Christie to express his views concerning the proposed transfer of the Licence by Mr Tate to Celestial.
By letter dated 7 June 2017, Mr Christie’s solicitor wrote to Celestial advising that the Licence had been transferred to Mr Tate without the consent of their client and contended that one half of that License was owned by Mr Christie. The letter further informed Celestial that the Authority and Mr Tate had been informed of this issue in February 2017 and contended that it should have informed Celestial of the matter as a relevant consideration in the further transfer of the Licence. Celestial was put on notice of Mr Christie’s contentions and that if Celestial proceeded with the purchase it would not be a bona fide purchaser without notice of the claim and that Mr Christie reserved his rights to claim the return of the Licence by legal proceedings.
On 14 June 2017, Mr Christie sent the Authority a request for an internal review of the decision to transfer the Licence to Mr Tate.
On 19 June 2017, Mr Christie sent the Authority a detailed submission in which he complained of a significant delay by the Authority in advising him of the proposed transfer by Mr Tate to Celestial. He contended that it would be unreasonable for the Authority to transfer the Licence to Celestial until all disputes arising from the transfer of that Licence to Mr Tate had been resolved. Mr Christie contended that in recognising that the transfer had taken place as a result of an application by his co-licensee alone, the Authority thereby demonstrated that it had misconceived “who the ‘defined’ licensee was of this particular licence.”
While Mr Christie’s submission explained at length the basis on which he challenged the decision, in substance, he contended that the Authority could not transfer the Licence on the signature of Mr Loughnan alone, particularly in circumstances where it had actually recognised that the Licence was held by co-licensees. Mr Christie’s submission drew attention to s 5 of the Act, contending that ‘licensee’ was defined as the person who held the Licence and noted that the Licence was held by both Mr Loughnan and himself. He contested that the Authorities could validly transfer the licence to Mr Tate when the application had not been signed by both co-licensees. Mr Christie also maintained that Mr Loughnan had falsely represented himself to be General Manger of Surfside when he did not hold that office.
Mr Christie reserved his right to take his complaint to judicial review. He reiterated that the Authority should not transfer the Licence to Celestial until his grievances had been resolved. Mr Christie also contended that the Authority may have acted deliberately in transferring the Licence to Mr Tate and that it would be acting recklessly in transferring the Licence to Celestial. He sought the return of the Licence and made an alternative claim for significant compensation for potential loss if the Licence was not returned.
On 20 June 2017, Mr Anthony Jobson, an officer of the Authority advised Mr Christie that it was unable to conduct an internal review of the decision to transfer the Licence to Mr Tate. Mr Christie was also advised that the Authority was unable to provide legal advice to him and suggested he obtain advice as to the availability of judicial review.
On 21 June 2017, Mr Jobson sought a decision from Mr Mark Loney, the executive manager Operations, Services and Technologies Branch in relation to the proposed transfer to Celestial. The decision was sought in a memorandum dated 21 June 2017. In seeking that decision the memorandum recited the legislative background and the recent history of transfers of the Licence, including the proposed transfer by Mr Tate to Celestial.
Mr Jobson’s memorandum confirmed that both Messrs Loughnan and Christie had held the Licence and that the application to transfer it to Mr Tate had not been signed by Mr Christie. It also recorded that the application had been lodged with the Authority by Mr Tate.
Concerning the proposed application by Mr Tate to Celestial, the memorandum recorded that by force of s 286 of the Act, the application would be taken to have been refused unless a decision on such transfer was made by 21 June 2017 and the parties to such transfer were notified of that decision. The memorandum detailed the matters that were considered to be relevant to the proposed transfer including that:
(a)Mr Christie had not known of or authorised the transfer of the Licence to Mr Tate;
(b)Mr Christie had engaged solicitors and was considering his legal options;
(c)Mr Christie opposed, and had made a submission to the Authority opposing, the transfer of the Licence to Celestial;
(d)Mr Christie’s submission foreshadowed legal action including the possibility of an application for judicial review of the Authorities’ decision to transfer the Licence to Mr Tate;
(e)Messrs Tate and Shaw had made submissions, denying any fraudulent activity and contending that the transfers in which they had been involved had been effected in good faith;
(f)the general policy of the Authority was to give effect to proposed transfers of licences unless some clear reason to the contrary was shown; and
(g)in the present case, no good reason was shown why the Licence should not be transferred.
The memorandum concluded with a recommendation that the Licence be transferred to Celestial notwithstanding the complaints set out in Mr Christie’s submission by reason that:
Mr Christie has not commenced any legal proceedings against the ACMA or, as far as I know, against any other person in relation to the First Transfer Application;
The ACMA has no material, beyond the claims in Mr Christie’s submission that suggests that the ACMA’s decision on the First Transfer Application was unlawful, improper or made on the basis of false or misleading information.
On 21 June 2017, Mr Loney approved the transfer of the Licence to Celestial and gave written reasons for the decision to do so. In these reasons, Mr Loney recorded that both Mr Loughnan and Mr Christie were licensees of the Licence and that Surfside was not an incorporated entity. Mr Loney stated that he had relied upon Mr Jobson’s memorandum dated 21 June 2017 and had taken into account the submissions received from each of Messrs Christie, Tate and Shaw.
In substance, Mr Loney stated that no reasons had been identified which disqualified Celestial from becoming licensee of the Licence and that there was no reason to depart from the general policy approach of giving effect to a transfer unless good reason to the contrary was shown. In particular, Mr Loney stated:
. . . I concluded that the ACMA has no material before it, other than the claims in Mr Christie’s submissions, that would suggest that the First Transfer was unlawful, improper or made on the basis of false or misleading information. I considered that, in the absence of any legal proceedings being commenced in relation to the dispute about the First Transfer Decision, the mere existence of the dispute was not a reason to depart from the ACMA’s general policy when dealing with an application for a transfer of a licence, which is to transfer the licence. (Emphasis added)
Thus, one reason for Mr Loney’s decision to transfer the Licence to Celestial was that Mr Christie had not instituted proceedings to vindicate any claim that the earlier transfer to Mr Tate was affected by fraud or improper dealing. Equally, at no stage had Mr Christie been given notice that if he did not institute such proceedings within a specified period, the decision-maker would take into account that those proceedings had not been so instituted.
Further, while the Authority recognised that Mr Christie was a co-licensee and that he had not signed the application to transfer the Licence to Mr Tate, it does not appear that a question of the validity of an application signed by only one co-licensee was considered.
Procedural history
On 18 July 2017, Mr Christie commenced application MLG1535/2017 seeking judicial review of the Authorities’ decision to transfer the Licence to Celestial. Mr Christie was self-represented at the time the application was commenced and has been so self-represented throughout these proceedings. From the details of the claim and grounds of application it is plain that Mr Christie grounded his application on many of the events set out above including Mr Loughnan’s alleged conduct in transferring the Licence to Mr Tate without his knowledge or consent. The relief sought by the application was for the return of the Licence, alternatively for compensation for the temporary or permanent loss of the Licence. Mr Christie served the application by express post.
Due to an administrative error by Australia Post the express mail containing the application was not delivered until 21 September 2017.
The application was listed for directions on 25 September 2017. On that date, the respondent foreshadowed that a notice may be filed objecting to the competency of the proceeding. The apparent basis of the objection was that insofar as the proceeding involved a challenge to the Authorities’ decision to transfer the Licence to Mr Tate, the proceeding had been instituted on a date that was manifestly beyond the time fixed by the ADJR Act to seek judicial review of that decision. The matter was adjourned for further directions on 19 February 2018.
On 14 February 2018, Mr Christie filed an application in a case variously seeking “leave to remake the originating application for judicial review”, “a limited additional period of time to allow [him] to find the legal assistance required . . .” and “for his Honour Judge Kelly to determine the structure of the further claims.” Mr Christie swore an affidavit on 9 February 2018 in which he deposed that he had “recognised the need to amend pleadings and the orders sought.” His affidavit referred to the “particular legal assistance I must seek to make these amendments and what affidavits to rely on in future.”
On 14 February 2018, Mr Christie commenced application MLG387/2018 seeking an extension of time within which to commence a proceeding for judicial review in respect of the Authorities’ decision to transfer the Licence to Mr Tate. The application for an extension of time to commence the proposed proceeding was listed for hearing on 7 March 2018.
On 19 February 2018, orders were made to regulate the future conduct of MLG1535/2017 including orders listing the matter for final hearing on 14 November 2018. Further orders were made directing that interested persons be notified of the proceedings and relief sought and for the preparation of a court book. As a Model Litigant, the Authority undertook to attend to those matters and did so. The orders contained a notation that subject to further order, the proceeding would be heard with proceeding MLG387/2018.
The parties made submissions on 7 March 2018 respecting the application for an extension of time in which to seek judicial review of the Authorities’ decision to transfer the Licence to Mr Tate.
Extension of time
A person aggrieved by a decision to which the ADJR Act applies may apply to this Court for an order for review of the decision and may do so on grounds specified in s 5 of that Act. For the purposes for the ADJR Act, the expression “a person aggrieved by a decision” includes a person whose interests are adversely affected by the decision.
Mr Christie requires an extension of time within which to commence a proceeding for judicial review in respect of the decision to transfer the Licence. By s 11(1)(c) of the ADJR Act, unless an extension of time is granted, Mr Christie had 28 days after the Authority gave reasons for the decision to transfer the Licence to Mr Tate. The Authority gave and served those reasons on Mr Christie on 12 May 2017.
Unless an extension of time be granted, Mr Christie had until 9 June 2017 in which to commence the subject proceeding.
The discretion to enlarge time for the commencement of proceedings is a broad one. It is well settled that in the determination of whether an extension of time should be granted, the Court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the substantive application.[2]
[2]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
Delay & explanation
The 28 day period fixed by the ADJR Act to commence a proceeding has long since expired and the delay was described by the Authority as being ‘extraordinary’. When regard is had to the history of the matter I am not sure that that description was justified.
Contextually, it will be recalled that the Authority, having received the application for the transfer of the Licence from Mr Tate to Celestial in March 2017, did not inform Mr Christie of the fact of that application until the date on which it gave a statement of reasons respecting the decision to transfer the Licence to Mr Tate. On 12 May 2017, the Authority sought Mr Christie’s consent to disclose his complaint to both Mr Tate and Celestial so as to afford them an opportunity to comment. On the same date Mr Christie was given until 26 June 2017 to make submissions in relation to that transfer.
When the Authority then gave a statement of reasons for the decision to transfer the Licence to Celestial, Mr Christie promptly commenced a proceeding seeking judicial review of that decision. As noted above, the substantive ground for that challenge rested on the Authority having transferred the Licence to Mr Tate when it recognised that the application identified both Messrs Loughnan and Christie as co-licensees and that only one licensee had signed the application. The form of the application was in a form approved by the Authority.
Delays of similar periods as has occurred in the present case have not always been determinative of the refusal of relief in other quite different circumstances: see Re Refugee Tribunal Ex parte Aala;[3] Plaintiff M13/2011 v Minister for Immigration and Citizenship;[4] and compare Caswell v Dairy Produce Quota Tribunal for England & Wales;[5] Johnson v Williams;[6] see also McGee, Limitation Periods.[7]
[3](2000) 204 CLR 82, [82]-[83] (Gaudron and Gummow JJ).
[4][2011] HCA 23, [1], [10] (Hayne J).
[5][1990] 2 AC 434, 738.
[6][2000] FCA 3; (2000) 58 ALD 1 at [24]-[25].
[7]7th Ed (2014) at [9.006]-[9.009].
The Authority submitted that no adequate explanation for the delay had been given. I accept the Authorities’ submission that it is irrelevant Mr Christie had been unaware of the decision to transfer the Licence to Mr Tate until February 2017. I also accept that Mr Christie had been legally represented at the time a request was made for a statement of reasons respecting the decision to transfer the Licence to Mr Christie. The Authority points up that Mr Christie had always been aware of the need to seek judicial review and relies upon the institution of the proceeding seeking review of the decision to transfer the Licence to Celestial as being confirmatory of Mr Christie’s awareness of the need to commence such a proceeding within 28 days absent an extension of time. In any event, I would also have accepted that a layperson’s ignorance of legislative timeframes is not a satisfactory explanation for a failure to comply with those limits.[8]
[8]SZNYE v Minister for Immigration and Citizenship [2010] FCA 500, [8].
Mr Christie’s explanation for the delay is to be understood in the broader context that he considered it was necessary to achieve the immediate object of securing the return of the Licence by Celestial to Mr Tate so that he might then seek restoration of the Licence from him. Mr Christie submitted, in effect, that it would have been inutile to challenge the earlier decision until an order had been made quashing the decision to transfer the Licence to Celestial. An incremental approach to the problem was evidently considered appropriate.
Although I do not accept that Mr Christie’s explanation for the delay is altogether satisfactory, I do not regard it as being unacceptable. The adequacy of an explanation for the delay in instituting proceedings is not determinative of an application for an extension of time. It is but one of the factors to be taken into account in an application for an extension of time. As the text of para 11(1)(c) of the ADJR Act confirms, the time limit for the institution of a proceeding for judicial review is fixed at 28 days unless the Court allows further time to do so. It is implicit in para 11(1)(c) that there may be circumstances in which the Court will be persuaded that it is appropriate to allow further time in which to institute a proceeding for judicial review.
Prejudice
The Authority underlined that the scheme of the Act was to ensure the quick and efficient processing of transfer applications. Attention was drawn to the objects of the Act as being to maximise the overall public benefit derived from the radio spectrum including by ensuring its efficient allocation and use and to provide for a responsive and flexible approach to meeting the needs of users of the spectrum.[9]
[9]See s 3(a), (c) of the Act
Attention was also drawn to the few mandatory considerations that were to be considered by the Authority when an application for the transfer of a licence was made,[10] together with the fact that a transfer required no more than the lodging of an approved form of application and that if the Authority did not decide to transfer the licence within 90 days the application was deemed refused. However, reliance upon those considerations would seemingly leave out of account altogether that the Authorities’ decision to transfer the Licence occurred in circumstances where it was recognised the Licence was owned by two persons and that one of them had not signed the application. In addition, the application for the transfer was lodged by Mr Tate and the licensee’s address as shown on the application form was apparently Mr Loughnan’s current residential address as opposed to that which had been used by the Authority in all communications with Surfside.
[10]See s 100(4), (6) of the Act.
It is difficult to see how resort to legislative objects concerned with the efficient allocation and use of the radio spectrum and the adoption of a flexible approach to meeting the needs of users could justify the transfer of the rights which inhere in a licence from a person who has neither known of nor consented to such transfer.
Insofar as the Court was invited to consider the question of prejudice to the interests of third parties such as Mr Tate and Celestial, it is clear that for so long as Mr Christie had had lawyers acting for him, Celestial had been put on notice that the transfer of the Licence to Mr Tate was impugned by allegations of fraud or improper dealing. Whether those considerations may bear upon the availability of relief for the return of the Licence are matters which should await the determination of the substantive application. If the application for judicial review is dismissed, there will be no effect on those third parties. If the application is upheld more complex questions may arise including identification of the relief which is properly available on judicial review and whether prerogative relief should be denied on the ground that damages are a more appropriate remedy.
Merit of substantive application
The Authority accepted that Mr Christie satisfied the requirement that he was a person whose interests were adversely affected by the decision to transfer the Licence to Mr Tate and that he had standing to challenge that decision if his proceeding had otherwise been brought within time or an extension of time was granted.
As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[11] MZABP v Minister for Immigration and Border Protection.[12]
[11][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[12][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. Her Honour stated:[13]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[14]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
[13][2015] FCA 1391, [62]-[63]
[14](1998) 195 CLR 516 at [7]-[9].
These statements reflect the reasoning in Spencer v Commonwealth.[15] There the case sought to be brought by the plaintiff was dismissed summarily by the primary judge whose decision was affirmed by a Full Court. The plaintiff’s claim was that restrictions placed on his property constituted the acquisition of property other than on just terms. However unusual or ambitious the claim might have appeared, the High Court held that the argument could not be considered to have no reasonable prospect of succeeding in circumstances where a similar claim had been reserved for future consideration in another proceeding. The plaintiff was held to be entitled to proceed to trial. While the claim was ultimately dismissed,[16] the approach taken in Spencer illustrates the lower threshold which applies in deciding whether a case should be regarded as being arguable (whether sufficiently or reasonably) or to have sufficient prospects of success. It is also is instructive, whether the application be for an extension of time, summary judgment and, perhaps, for reinstatement.
[15](2010) 241 CLR 118.
[16]Spencer v Commonwealth [2015] FCA 754 (Mortimer J).
In the present case, the Authority submitted that there was no merit in the fraud allegations raised by Mr Christie such as to impugn the decision to transfer the Licence to Mr Tate. The Authority correctly submitted that in a public law context, fraud must actually induce or affect the decision under challenge.[17] It was further submitted that certiorari may be denied where damages were a more appropriate remedy[18] and that, in at least in cases of fraud, the Court must consider whether such other relief was more appropriate in the circumstances.[19]
[17]SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [24], [47] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ).
[18]SZFDE, [2].
[19]SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90, [232] (Mortimer J, in dissent but not on this point of principle.)
I am prepared to assume that the allegations made in respect of Mr Loughnan’s completion and signing of the application to transfer the Licence to Mr Tate are of some substance. On the material before me, at all relevant times, Mr Loughnan knew that Mr Christie was a co-owner of the Licence. I am also prepare to assume the correctness of Mr Christie’s evidence that he had been in dispute with Mr Loughnan for some two years before the transfer occurred and that he knew nothing of that transfer and never gave his consent to it. This evidence would support allegations of the kind made at least as against Mr Loughnan. Less clear is whether either of Mr Tate or Celestial were engaged in any improper conduct. There is, however, at least some evidence indicating that Mr Tate has taken occasion to goad and deride Mr Christie in relation to the current loss of the Licence.
In SZFDE v Minister for Immigration and Citizenship[20] the Court was concerned to decide the availability of certiorari to quash a decision made on a merits review of a decision to refuse a family a protection visa. The Tribunal grounded its decision in part on the failure of the family to appear at the hearing. They had not done so by reasons that their supposed migration agent, a rogue, had dishonestly told them in effect, not to appear. The Court, accepting that the Tribunal was blameless of any impropriety, recognised that in a public law context, references to an absence of good faith was more properly understood as meaning having acted for legitimate reasons.[21] The Court examined the vitiating effect of fraud and recognised that a somewhat different trend could be discerned in the sphere of public law in part by reason that the jurisdiction to grant certiorari was supervisory, not appellate. The Court allowed that one circumstance in which a decision may be quashed was where it was affected by fraud, which term encompassed bad faith.[22] The Court observed that Australia had applied English jurisprudence to grant certiorari respecting summary convictions recorded on a guilty plea induced or affected by the fraud of a third party and recognised that in migration, an available ground of review was that the decision had been induced or affected by fraud.[23]
[20](2007) 232 CLR 189.
[21](2007) 232 CLR 189, [13]-[14] (Gleeson CJ, Gummow, Kirby, Hayne, Callinnan, Heydon and Crennan JJ).
[22](2007) 232 CLR 189, [15]-[22].
[23](2007) 232 CLR 189, [23]-[25]; see s 476(1)(f) Migration Act 1958 (Cth).
The Court endorsed the view that in a public law setting, the fraud must be shown to have actually induced or affected the decision and importantly, that fraud was not confined to that of a decision-maker, a party or a party’s representative. In the result, where fraud was an available ground of review, certiorari may be available in a case where the fraud is that of a third party where the decision had been actually induced or affected by that fraud. [24]
[24](2007) 232 CLR 189, [25]-[27] citing Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103, 111-112 (Lindgren J); see also Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63, [30] (Dowsett, Collier and Rangiah JJ).
In SZFDE, the Court concluded that it was unnecessary in that appeal to determine the scope of third party fraud or the availability of certiorari where such a ground was advanced as the basis for relief. Their Honours considered it appropriate to resolve the issue by regard to the nature, scope and purpose of the particular system of review and consideration of the decision or transaction which was the target of the review. [25] Notably, the Minister had accepted that, had the Tribunal actually appreciated the applicants had not appeared by reason of the misconduct of their agent, a real question would have arisen as to miscarriage of the Tribunal’s power to proceed in the applicants’ absence.[26] On their case, the appellant’s conscious decision not to appear had been the direct result of the agent’s fraudulent conduct and the Tribunal had not appreciated this to be so when making a decision.
[25](2007) 232 CLR 189, [29].
[26](2007) 232 CLR 189, [36]-[37].
It is settled that fraud is infinite in variety and bears different shades of meaning.[27] In public law the proof of fraud falls to be established on the balance of probabilities and, subject to applicable procedural and evidentiary rules, an applicant for certiorari may advance any relevant material for that purpose. [28] It is necessary for the Court, when making a finding of fraud, to specify what that fraud was, what was said to be fraudulent, how it was fraudulent and how it had been acted upon. The Court is able to make an inference of fraud notwithstanding the seriousness of the allegation and despite the absence of the person against whom the allegation is made. [29]
[27](2007) 232 CLR 189, [8]-[9] citing Reddaway v Banham [1896] AC 199 at 221.
[28](2007) 232 CLR 189, [17], [25], [38] citing Craig v South Australia (1995) 184 CLR 163, 176.
[29](2007) 232 CLR 189, [38]-[41], [45], [47].
The ultimate issue is to consider the effect of the alleged fraud upon the decision-making process. [30] In SZFDE, the Court held that the agent’s fraud had had a stultifying effect upon the merits review of the adverse migration decision in which the decision-maker was obliged to invite the applicant to appear, present arguments and make submissions in relation to the decision under review and, in particular, where the centrality of that obligation was to be seen in a statutory scheme which constituted an exhaustive statement of the requirements of the natural justice hearing rule. The Court held that while the agent’s fraud had been practised most directly upon the appellant, this did not necessarily deny it from bearing a secondary legal character which was of decisive legal significance; namely, the concomitant stultification of the critically important natural justice provisions of the Migration Act.[31] The effect of such stultification was that the Tribunal’s decision was no decision at all by reason that its jurisdiction remained constructively unexercised.[32] In so holding, the Court emphasised that the case was distinguishable from those grounded upon an agent’s bad or negligent advice or some other mishap for which the applicant should not be heard to complain that such detriment has vitiated the decision the subject of challenge.[33]
[30](2007) 232 CLR 189, [47].
[31](2007) 232 CLR 189, [49]-[51].
[32](2007) 232 CLR 189, [52].
[33](2007) 232 CLR 189, [53]; cf Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ). SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
In the present application, review was available on the ground that the decision was induced or affected by fraud: cf s 5(1)(g), ADJR Act. It was accepted that fraud was not confined to that of a decision-maker, a party or a party’s representative but may include the fraud of a third party. While the Authority was clearly blameless of any fraud, the availability of certiorari to quash the decision to transfer the licence to Mr Tate necessarily turned on a finding of fraud or improper dealing on the part of Mr Loughnan. In the context of an application for an extension of time, I will assume that a real question would have arisen as to miscarriage of the Authority’s power to transfer the application had it appreciated that Mr Christie had not known of the application to transfer the Licence and had not known of or given his consent to it. As in SZFDE, an ultimate issue will be the effect of the alleged fraud upon the decision to transfer the Licence. For present purposes, upon an impressionistic assessment of the matter, it is at least arguable that Mr Loughnan’s conduct may have had a stultifying effect upon the Authorities’ decision to transfer the Licence. Such a conclusion expresses no view whether it would ultimately be found that there is any merit in the allegations made against Mr Loughnan. However, in the sense described in SZFDE, it is arguable that his conduct may have actually induced or affected the Authorities’ decision to transfer the Licence to Mr Tate. However, in contrast with SZFDE, the scope of the Authority’s natural justice obligation to Mr Christie is less clear.
Relevant and irrelevant considerations
The Authority accepted that an administrative decision may be vitiated by legal error where a decision-maker failed to take into account a mandatory relevant consideration.[34] It was further submitted that such matters were to be determined by reference to the subject matter, scope and purpose of the relevant legislation. Reference was made to Lo v Chief Commissioner of State Revenue,[35] in which Basten JA, (with whom Beazley P agreed) said:[36]
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[37] it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Macfarlan JA, (with whom Beazley P also agreed) said:[38]
. . . in judicial review proceedings the omission of a decision-maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko[39];ProjectBlue Sky v Australian Broadcasting Authority[40]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision-maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision-maker will have erred in law in expressly or impliedly misconstruing the statute.
[34]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[35](2013) 85 NSWLR 86.
[36](2013) 85 NSWLR 86, [9].
[38](2013) 85 NSWLR 86, [50].
[39][1986] HCA 40; 162 CLR 24 at 39-40.
Chapter 3 of the Act concerns Licensing of radiocommunications and is arranged in 6 Parts. Part 3.3 concerns Apparatus licences and comprises ss 96-131AG. Relevantly, Part 3.3 provides that the Authority may issue certain licences[41] and that the person to whom such a licence is issued is authorised, relevantly, to operate specified radiocommunications transmitters.[42]
[41]s 97(1).
[42]s 97(2).
By s 131AA(1), a licensee of an Apparatus licence may (subject to a proviso which is presently immaterial), at any time before the licence is due to expire, apply in writing to the Authority for the licence to be transferred to another person. The application must be in a form approved by the Authority and must be signed by both the licensee and the proposed transferee.
By sub-s 131AB(1), the Authority may transfer the licence into the name of the transferee. In deciding whether to transfer the licence, sub-s 131AB(2) provides that the Authority:
(a)must have regard to the same matters to which it must have regard under subsections 100(4) and (6) in deciding whether to issue such a licence; and
(b)may have regard to the same matters to which it may have regard under subsection 100(5) in deciding whether to issue such a licence.
Having regard to the text of s 131AB(2), it was submitted, correctly, that the mandatory considerations which the Authority was required to take into account were those contained in ss 100(4) and (6).
Section 100 of the Act concerns the topic Issuing apparatus licences. Upon application for the issue of an Apparatus licence, the Authority may, subject to other provisions, issue a licence of the type applied for: s 100(1). By sub-s 100(4), in deciding whether to issue an Apparatus licence, the Authority must have regard to:
(a) all matters that it considers relevant; and
(b) without limiting paragraph (a), the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence.
Sub-section 100(6), provides:
Without limiting subsection (4), in deciding whether to issue a transmitter licence, the ACMA must have regard to the following additional matters:
(a) if a licence that the ACMA may issue as a result of the application would be a licence in respect of which persons operating the transmitters are required under section 119 to be qualified operators in relation to the licence--whether:
(i) the applicant; or
(ii) each person specified by the applicant as a person whom the applicant proposes to authorise under the licence to operate the transmitters;
is a qualified operator in relation to such a licence;
(b) whether the ACMA is satisfied that the proposed operation of the transmitters is not reasonably likely to cause:
(i) death of, or injury to, persons; or
(ii) loss of, or damage to, property.
Mr Christie had argued that the delegate had taken into account an irrelevant consideration that Surfside was not an incorporated entity and had failed to take into account a relevant consideration that he was the sole proprietor of Surfside. I agree in the submissions that there was nothing in the subject matter, scope or purpose of the Act that would bind the Authority to not consider that Surfside was not an incorporated entity. It was also correctly submitted that this was part of the factual background and at best a permissible (but not mandatory) consideration to be taken into account in deciding to accept the application for and to transfer the Licence to Mr Tate.
In my opinion, the question remains whether other considerations relevant to the decision of the Authority to transfer the Licence may be implied from the subject matter, scope and purpose of the Act. The Authority helpfully identified objects of the Act that may inform its subject matter, scope and purpose. As relevant to Apparatus licences, the Act provides that, and regulates the manner in which, the Authority may issue or transfer such a licence.
In considering whether an application is sufficiently arguable, the Court is “not confined to a consideration of the grounds in the draft application for review but was free to also engage with” the decision-maker’s reasons and to explore whether the grounds have any substance.[43] For that reason, and because Mr Christie had been self-represented, I do not assess the application for extension of time solely by reference to the materials and argument before the Authority.[44]
[43]SZSZW [22] citing DMI16 v Federal Circuit Court of Australia[2017] FCA 1179 at [33]- [36].
[44]MZABP [2016] FCAFC 110 [28].
The Act confers on a licensee an entitlement to apply for the transfer of an Apparatus licence at any time before the licence is due to expire.[45] The Act prescribes that the application must be: (a) in writing; (b) made to the Authority (c) in a form approved by the Authority, and; (d) signed by both the licensee and the proposed transferee. When an application is made, discretion is then conferred on the Authority to transfer the licence.[46]
[45]s 131AA(1)-(2).
[46]s 131AB(1).
At first sight it would seem remarkable if the Authority was authorised to transfer a licence where a licensee had not signed the authorised form as approved by the Authority. As a matter of statutory construction it would seem at least arguable that s 131AB(1) does not authorise the Authority to transfer a licence unless an application complying with s 131AA(1)-(2) had been provided to it. By extension, it would seem reasonably arguable that the Authority had no power to transfer a licence which had not been signed by the licensee. An analogy may be drawn with a decision of a Registrar of Titles or the secretary of a corporation to record a change in the proprietorship of land or shares on the basis of a transfer which was patently invalid.[47]
[47]cf SZFDE (2007) 232 CLR 189, [9].
For the reasons above, in my opinion, it is at least arguable as a matter of proper implication that, before exercising the power conferred by s 131AB(1) to transfer a licence, one mandatory relevant consideration for the Authority to have taken into account was whether a valid application had been placed before it. As I understood the careful submissions of counsel for the Authority, it was accepted as being quite clear that there must be a valid application before the Authority. So much may be implicit in the requirement that the application must be in a form approved by the Authority.[48] But it was submitted that the threshold for validity was not high and that an application could be signed by or on behalf of a licensee, including by an agent.[49] It is not, however, clear beyond argument that the purpose of providing the authorised form of application for the nomination of a person as the licensee’s representative was for anything more than the administration of the licence during the period that it was held by a licensee. Although the approved form of transfer application provided for the signature of a licensee it is not obvious that the design of the approved form would circumvent the statutory requirement that the application must be signed by all persons specified as the licensee.
[48]cf s 131AA(2).
[49]cf Nathan v Dollars & Sense Ltd [2008] NZLR 557.
The Authority emphasised that the text of s 131AA(1) was clear in providing that a licensee may apply in writing to the Authority for the licence to be transferred to another person. However, the question of statutory construction is whether, in cases involving a licence issued to more than one person, the reference to ‘a licensee’ should be treated as a reference to an application signed by any one of them or instead as a reference to an application signed by each holder of the licence.
By s 5 of the Act, the term ‘licensee’ is defined to mean the person specified in the licence. In the present case, the persons specified in the Licence were Mr Loughnan and Mr Christie. On settled principles, a reference in any Act to the singular will include the plural. So too, an expression used to denote a person will be given a broad meaning and words used in an Act will be given a corresponding meaning as it is used in an Act.[50] At the same time, in some cases the legislative provision will be construed as containing a contrary intention such that the singular should be treated as excluding the plural.[51] Here, questions arise whether the defined meaning in s 5 of the Act of licensee should be construed as a reference to each of the persons to whom a licence has been transferred by the Authority and whether an approved form of application for transfer of a licence will be valid where it has been signed by only one of those persons.
[50]See ss 2C, 18A and 23(b) Acts Interpretation Act 1901 (Cth).
[51]Cf Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; Pearce & Geddes, Statutory Interpretation in Australia 8th Ed (2014) at [6.39], [6.55]-[6.56]; Bennion on Statutory Interpretation, 7th Ed (2017), Section 19.9 at p. 497-8.
Conclusion
It may be accepted that in certain statutory contexts, a decision maker is not subject to a general duty to undertake its own inquiries in addition to the information that is provided to it by an applicant who seeks the favourable exercise of a statutory discretion.[52]
[52]See eg, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [43] (Gummow and Hayne JJ, Gleeson CJ agreeing); Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [1] (per curiam).
However, in this case the anterior question is whether the application for transfer as signed by Mr Loughnan alone was a valid application. In circumstances where the application to transfer the Licence from Mr Jacobs had been completed so as to confirm that the proposed licensors were both Messrs Loughnan and Christie and when the Authority transferred the Licence it has specified both of those persons as being the licensee, an available issue for consideration on, and one possible ground of, judicial review may be whether the Authority recognised that to be the case and whether the validity of the application was taken into account. Those are reasonably arguable propositions. I am satisfied that there is sufficient merit in the substantial application that it is in the interests of justice to grant an extension of time.
Although Mr Christie has filed a draft application for judicial review, it would be of assistance to the Court and the parties for the content of that application to be re-considered. I also consider that the complexity of the case is such that the Court should exercise the power conferred by r 12.02 of the Federal Circuit Court Rules 2001 to issue a referral certificate enabling Mr Christie an opportunity to obtain the assistance of Pro Bono counsel. For the avoidance of doubt, such counsel should be free to determine what assistance is reasonably appropriate in all the circumstances.
As the Authority has power to issue such a licence, the utility of the further conduct of this complex litigation may be questioned, particularly in circumstances where the matter may readily be resolved be negotiation. However, as presently advised I know little of the available market for an Apparatus licence of the kind that is the subject of this proceeding or of their value or cost. Contrastingly, I am able to make some assessment of the likely significant cost – both in monetary terms and resources – which these proceedings will likely entail.
For those reasons, I also consider that it is appropriate to exercise the power conferred by s 34(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 27.01 of the Federal Circuit Court Rules 2001 to refer the matter for mediation.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 5 July 2018
[37][1986] HCA 40; 162 CLR 24 at 39 (Mason J).
[40][1998] HCA 28; 194 CLR 355 at [91] - [93].
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