Coal & Allied Operations P/L v Industry Research & Development Board

[1992] FCA 890

Re: COAL AND ALLIED OPERATIONS PTY LTD
And: INDUSTRY RESEARCH AND DEVELOPMENT BOARD
No. N G423 of 1991
FED No. 890
Number of pages - 4
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Costs - Application under Administrative Decisions (Judicial Review) Act dismissed for want of jurisdiction - no relevant "decision under an enactment" - whether respondent who did not file notice of objection to competency entitled to costs from applicant.

Federal Court Rules, O. 52 sub-rule 18(3), O. 54 r. 4, considered.

HEARING

SYDNEY

#DATE 16:11:1992

Counsel for the Applicant: Mr A.R. Emmett QC with Mr B. Sullivan

Solicitors for the Applicant: Messrs Allen, Allen and Hemsley

Counsel for the Respondent: Mr B. Shaw QC with Mr T. Ginnane

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed. 2. There be no order as to costs.

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

JUDGE1

BEAUMONT J. By an amended application for an order for review filed on 18 September 1991, the applicant sought judicial review pursuant to the Administrative Decisions (Judicial Review) Act ("the Act") of what is claimed to be a decision made by the Tax Concession Committee acting under delegation from the respondent Board constituted under the Industry Research and Development Act 1986. The matter proceeded to trial today, but in the course of submissions a question arose as to the competency of the application and, in particular, whether there was, in fact and law, a decision made under a relevant enactment for the purposes of the Act.

1. Senior counsel for the applicant, having taken instructions and reflected on the matter during the adjournment, has now frankly informed the court that, in the opinion of himself and junior counsel, there is no reasonable argument that there is, in the present case, a relevant decision under an enactment within the meaning of the Act. I have formed the same view myself and senior counsel for the respondent does not wish to argue to the contrary. In those circumstances, the application must be dismissed and I order that the application be dismissed.

2. The question then arises as to the costs of the proceedings; in particular the respondent seeks costs from the applicant. Order 54 rule 4 of the Federal Court Rules, which deals specifically with proceedings brought under the Act, provides that a respondent who objects to the competency of an application shall, within 14 days after receiving service of the application, file and serve upon the other parties to the proceeding a notice of objection to competency, stating briefly the grounds of the objection. No such objection was filed or otherwise foreshadowed in the present case.

3. Reasons for the alleged decision were sought and supplied pursuant to s. 13 of the Act, and in those reasons (paragraph B item 1) it is asserted that the relevant decision is, "The Tax Concession Committee's decision under delegation from the Industry Research and Development Board (dated 21 November 1989) determining that the road construction activities are not research and development". It is now common ground that this is not a decision under an enactment for the purposes of the Act.

4. Order 52 rule 18 enables a respondent to move on notice, at any time, for an order dismissing an appeal as incompetent. Sub-rule 18(3) of that order provides that:
   

"If a respondent does not move under sub-rule (1) but the appeal nevertheless is dismissed by the Court as

incompetent, the respondent shall not, unless the Court

otherwise orders, receive any costs of the appeal, and the Court may order that (the respondent) pay the appellant any costs of the appeal proving useless or unnecessary."

1. There are two limbs to this provision. No case has been argued here that the respondent should pay any proportion of the applicant's costs (cf. the second limb). However, the first limb of sub-rule 18(3) provides some analogy and guidance for present purposes.

2. The provisions of Order 54 rule 4 are clearly intended to encourage a respondent to an application to inform the applicant at the earliest possible date that jurisdiction is in issue. In the present case the respondent chose not to take this course. In my opinion it is appropriate, in those circumstances, that there should be no order for the costs of the proceedings.

3. The formal order of the court therefore will be: application dismissed with no order as to costs.