Cox, W.E. v Lt. Gen Lg O'Donnell

[1990] FCA 367

-- NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
\
AUSTRALIAN CAPITAL TERRITORY	i
1 No. ACT G 11 of 1990
DISTRICT REGISTRY	1
I
GENERAL DIVISION	1

BETWEEN: WADE EWART COX

Applicant

AND: LT. GEN. L.G. O'DONNELL. Chief

of the General Staff Armv Office

Department of Defence

First Respondent

MAJ. GEN. W.O. RODGERS, Director
General of Armv Health Services

(Retirinal

Second Respondent

MAJ. GEN. P.R. PHILLIPS, Chief

of Personnel Army

Third Respondent

BRIG. D.G. ROSSI, Director

General of Army Health Services

Fourth Respondent

(f1l (g11 (h), ( 0 1 1 (P11 ( q ) f (r11 (S) and

(t) and par.(u) (first appearing) in the relief sought by the applicant be struck out.

Otherwise the motion notice of which is
dated 29 March 1990 be dismissed.

The costs of the motion be costs in the substantive application.

The applicant file and serve a further amended application and any additional affidavits on which he intends to rely not later than 17 August 1990.

The first and fourth respondents file and serve any additional affidavits on which they intend to rely not later than 14 September 1990.

The applicant file and serve any affidavits in reply not later than 28 September 1990.

The matter be listed for further
directions on 5 October 1990.

The parties have liberty to apply on 2 days' notice.

MINUTE OF ORDER

JUDGE MAKING ORDER :  Neaves J. 25 1011990

FEDERAL COURT OF

DATE OF ORDER	24 July 1990	AUSTRALIA
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.   The second and third respondents cease to be parties to the proceeding.

2.   Paragraphs 6-11 inclusive of the amended application and paragraphs (c), (d), (e),

Note:  Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY	i	No. ACT G 11 of 1990
DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: WADE EWART COX

Applicant

AND: LT. GEN. L.G. O'DONNELL, Chief

of the General Staff Armv Office

Department of Defence

First Respondent

MAJ. GEN. W.O. RODGERS, Director
General of Armv Health Services

(Retirinal

Second Respondent

MAJ. GEN. P.R. PHILLIPS, Chief

of Personnel Army

Third Respondent

BRIG. D.G. ROSSI, Director
General of Armv Health Services

(Elect1

Fourth Respondent

CORAM: Neaves J.

D: 24 July 1990 REASONS FOR JUDGMENT

Pending in the Court is an application by Wade Ewart Cox ("the applicant") for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). Named as respondents to that application are Lt. Gen. L.G. O'Donnell, Chief of the General

I

i	Staff, Army Office, Department of Defence ("the first
l
respondent"), Maj. Gen. W.O. Rodgers, Director-General of Army Health Services (Retiring) ("the second respondent"), Maj. Gen. P.R. Phillips, Chief of Personnel, Army ("the third respondent") and Brig. D.G. Rossi, Director-General of Army Health Services (Elect) ("the fourth respondent"). It appears from the arhended application filed on behalf of the applicant on 22 March 1990 that orders of review are sought in respect of a decision of the first respondent made on 13 February 1990 under s.37 of the Defence Forces Retirement and Death Benefits Act 1973 (Cth) ("the DFRDB Act") and in respect of conduct alleged to have been engaged in by the second, third and fourth respondents "for the purposes of the Applicant's Application to be considered for a pension pursuant to" s.37 of the DFRDB Act.

Section 37 of the DFRDB Act provides:

"37. Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Naval

of the Air Staff or a person authorized in writing	Staff, the Chief of the General Staff or the Chief
by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that
ground.. "

The reference to "the Authority" is a reference to the Defence Forces Retirement and Death Benefits Authority established by s.8 of the DFRDB Act. The decision of the first respondent is described in the amended application as a decision that, "at the time the Applicant retired from the Australian Regular Army grounds did not exist on which he could have been discharged on the grounds of invalidity or of physical or mental incapacity to perform his duties".

The matter at present before the Court is an application by motion 'on notice by the respondents for orders that the second, third and fourth respondents be removed as parties to the substantive application and that certain paragraphs of the amended application of the applicant be struck out.

When the motion came on for hearing, counsel for the applicant informed the Court that the applicant would consent to orders that the second and third respondents be removed as parties to the proceeding and that, in consequence, pars.6-l1 inclusive of the amended application be struck out. Later in

his client, sought to have the second and third respondents	the hearing, counsel for the applicant, on instructions from
remain as parties "for the purposes only of allowing the relief" claimed against them in the application.
In my opinion, no sufficient basis has been shown for allowing the second and third respondents to remain as parties to the proceeding. It is not alleged in the amended application that anything that either of those respondents did affected the decision made by the first respondent on 13 February 1990. In any event, to direct that those respondents be removed as parties to the proceeding will not limit in any way the matters upon which the applicant may rely in support of the application for an order of review in respect of that decision. 'I, therefore, order, pursuant to Order 6, rule 9 of the Federal Court Rules, that the second and third respondents cease to be parties to the proceeding. I further order that pars 6-11 of the amended application be struck out.
In support of the submission that the fourth respondent be removed as a party to the substantive application, counsel relied upon the affidavit of the fourth respondent sworn 18 April 1990. In that affidavit the deponent states that he is the Director General Army Health Services, having held that office since 22 January 1990. He further states that from 9 December 1985 to 31 January 1989 he was the Director of Medical Services, Second Military District. The affidavit also states that on 3 January 1989
the deponent was requested in writing by Colonel L.O. Peters, then acting as Director, General Personnel Operations (Army)
to undertake a medical review of the applicant and that a report setting out the results of that medical review was provided to Colonel Peters on 15 February 1989. The deponent further states that, except in relation to the provision of the medical report, he was not involved in the making of the determination in relation to the applicant that was made on 13 February 1990 by the Chief of the General Staff under s.37 of the DFRDB Act.
It is common ground, notwithstanding some references in the amended application to the contrary, that the fourth' respondent did not make any decision that is reviewable under the Judicial Review Act. Relief is sought, however, on the basis that the fourth respondent engaged in conduct for the purpose of the making of the decision of the first respondent. The amended application asserts that the findings of the fourth respondent upon the medical review which he carried out were relied upon by the first respondent in making the decision of 13 February 1990 and that the fourth respondent, in carrying out the review, engaged in conduct such as to attract the operation of one or more of the grounds set out in s.6 of the Judicial Review Act.
The basis upon which it is submitted that the fourth respondent should be removed as a party is that any conduct in
question which arose under s.37 of the DFRDB Act whether, at which the fourth respondent engaged in relation to the
the time the applicant was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, was not conduct which is reviewable under s.6 of the Judicial Review Act. This was said to follow from the circumstance that the fourth respondent was not at any relevant time a person who had authority to make a decision under s.37 of the DFRDB Act and the further circumstance that s.6 of the Judicial Review Act is, on its proper construction, limited to the review of conduct by a person who has authority to make the relevant decision.
The construction of s.6 of the Judicial Review Act has relevantly been referred to in decisions of this Court.
In Gouruaud v. Lawton (1982) 42 A.L.R. 117 Davies J. had before him an application for an order of review in respect of, inter U, certain conduct engaged in by an interviewing panel and the Acting Parliamentary Librarian. His Honour found that the conduct engaged in by the interviewing panel was for the purpose of making a report or recommendation to the Acting Parliamentary Librarian concerning an appointment to a position in the Parliamentary Library and that the conduct of the Acting Parliamentary Librarian was for the purpose of making a report or recommendation to the President of the Senate and the Speaker
of the House of Representatives, being the Presiding Officers of the Department of the Parliamentary Library. His Honour
held that, as the stage of decision-making had not been reached, it could not be said that the conduct was part of the decision-making process. It was not, however, properly characterised, in terms of S. 6 of the Judicial Review Act, as conduct engaged in for the purpose of making a decision to which the Act applied.
In Gunaleela v. Minister for Immiaration and Ethnic Affairs (1987) 15 F.C.R. 543 a Full Court of this Court said

"The respondents submitted that in order to fall within the terms of s.6, even when read with the expansive provisions of s.3(5), the person engaged in the anterior or preparatory conduct must be the person who has made or will make the decision to which s .S of the Judicial Review Act applies. The respondents then pointed to the facts of the present case and to the differing identities of the actors involved.

Section 6(1), so far as is material states:

'Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct

....

As a matter of first impression, there is much force in the respondents' submissions. To speak of a person engaging in conduct for the purpose of making a decision would ordinarily be read as identifying antecedent conduct by the decision-maker. On the other hand, it is undoubtedly true that much preparatory 'conduct' will be engaged in by administrators other than the individual upon whom the ultimate power of decision is conferred. To read the legislation as the respondents urge might	deprive it of the utility which as remedial	legislation it might be expected to have.
In the present case, the sequence of events between the arrival of the appellants at the airport on 26 April 1987 and the making by Mr Davidson of his decisions of 15 June 1987 is not straightforward and there is, on the facts, room for debate as to whether the recommendations of the DORS Committee and the decisions of Mr Richardson have the necessary purposive connection with the decisions of
Mr Davidson of 15 June, as required by s.6 of the
Judicial Review Act. In this connection we refer to
what was said by this Court in v. (1983)
49 A.L.R. 533 at 558:

'Inevitably, the statutory language presents difficulties in relation to what is conduct for the purpose of making a decision. It seems clear that subs (5) of s3 of the Act provides an expansive and not an exhaustive definition. Apart from what is included by that subsection, investigation is called for as to the purposive relationship between the conduct and some decision of the requisite character. Beyond that, concern is centred on whether conduct is "preparatory" to a decision. Not every prior step will be properly so described. It may often, if not always, be necessary to investigate the proximity of the connection between the conduct and the decision and perhaps to have regard to the intention with which the conduct occurred. A further obvious potential difficulty which may intrude is the necessity for an applicant to be aggrieved by the conduct at a time when details of the actual decision may be unknown and, more particularly, when it may not be known whether the decision will be favourable or unfavourable. However, in view of the terms of s3(5), perhaps even taking evidence and/or continuing with an inquiry may constitute conduct which can be called in question.'"

The judgment goes on to say that the Court did not find it necessary to resolve the issues that arose as to the construction of s.6 and sub-s.3(5) of the Judicial Review Act.

More recently, in Merman Ptv Ltd v. Comptroller- General of Customs (1988) 16 A.L.D. 88, a case concerning the Customs Tariff (Anti-Dunmina) Act 1975 (Cth), Lee J., after referring to the decision of Davies J. in Gouraaud v. Lawton (1982) 42 A.L.R. 117, said at p.94:

"I do not take the comments of Davies J. to be

intended to express an opinion that the operation of

s.6 is limited to conduct engaged in for the purpose of making a decision to which the Judicial Review Act applies being only such conduct as is engaged in by the person authorized to make the decision under the relevant enactment. If the scope of the section were so limited that section coupled with s.9 would have the effect of excluding a substantial area of conduct from judicial review. In view of the fact that a great range of conduct will be carried out by persons other than the decision-maker preparatory to and for the purpose of the formation of that decision by the decision-maker and the fact that such conduct may in itself create aggrieved persons, a narrow construction of s.6 may deny the process of review that would otherwise appear to be appropriately provided within the scheme and intent of the Judicial Review Act."

His Honour then referred (see the report p.95) to the passage from Gunaleela v. Minister for Immiaration and Ethnic Affairs (supra) set out above and continued:

"An inquisitorial process preparatory to the making

of a decision may have far-reaching results and adverse consequences for a person involved in the inquiry. Notwithstanding that the inquiry may decide or determine nothing, at common law it may be capable of review. (See In re Peraamon Press Ltd [l9711 Ch. 388, per Lord Denning M.R. at 399.) A narrow construction of s.6 would deny review that may otherwise be available at law in the Court of a State and deny an alternative remedy under the	Judicial Review Act. As was stated by the Full
Court in Gunaleela v. Minister for Immiaration and
Ethnic Affairs, suDra, that would be an unexpected result from remedial legislation.
In Gouruaud v. Lawton, supra, the activities of the interviewing panel were not directed or commissioned by the person authorized to make the decision under the enactment as I read the facts of that case. The panel appears to have involved officers at a level below that of the decision-maker who appointed themselves to conduct interviews and make recommendations to the decision-maker upon applicants for appointment to an office in the Department headed by one of the members of the panel.
In the present case the Minister issued a policy statement or guidelines setting out how he intended to obtain information for the making of a decision under s.8 of the Anti-Dumping Act. The Minister has made it clear that preparatory to making a decision and for the purpose of making such a decision he would have an inquiry conducted by officers of his Department and receive a recommendation as a result of that inquiry. It is difficult to conclude that the conduct of an inquiry by Departmental officers expressly authorized by the decision-maker is other than the doing of an act or thing preparatory to the making of a decision including the taking of evidence or the holding of an inquiry of [sic] investigation as defined in sub-s.3(5) of the Judicial Review Act and referred to in S. 6. Having regard to the provisions of sub-s.3(5), it is appropriate to read s.6 as extending to such acts or things done under the authority of or adopted by a decision-maker to be used by him for the purposes of exercising his power to make a decision under an enactment.
I am satisfied that the conduct consisting of and relating the carrying out of this dumping inquiry and the formation of a recommendation to the Minister thereon, is conduct for the purpose of making a decision to which the Judicial Review Act applies within the meaning of s.6 of the Act."

More recently still, in Centurv Metals and Mininq

NL v. Yeomans (1988) 85 A.L.R.	29, French J. said at pp.46-7:
-

reviewed under s.6 of the Act, regard must be had to	"In relation to the class of conduct that may be
the opening words of s.6(1) : 'Where a person has engaged, is engaging or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on one or more of the following grounds: . . . ' and to para (c) of the statutory grounds of review:

'(c) that the person who has engaged, is engaging or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision.'

The reference in the opening words of the sub- section to 'conduct ... for the purposes of making a decision' and the language of ground (c) strongly suggest that the person engaging in the conduct in question is the decision-maker. That view does not exclude the proposition that the conduct to which s.6 applies is conduct which, although undertaken by other persons, can be regarded as that of the decision-maker by virtue of authorisation or delegation. Thus inquiries carried out by a Minister's departmental officers with a view to some decision being taken by him, would be his conduct for the purpose of making a decision within the meaning of the section. This approach is, I think, broadlv consistent with that adopted by Lee J. in

erm man- ~ t v ~ t d v. ~orn~troller-~Gneral- of Customs (Federal Court of Australia. Lee J. 16 September i988, unreported) and reflected in the foilowing passage in the judgment at p.66:

'Having regard to the provisions of s.3(5), it is appropriate to read s.6 as extending to such acts or things done under the authority of or adopted by a decision-maker to be used by him for the purposes of exercising his power to make a decision under an enactment.'

See also Gunaleela v. Minister for Immiaration and Ethnic Affairs (1987) 15 F.C.R. 543 at 556-7; 74 A.L.R. 263 (Full Court); Gourqaud v. Lawton (1982) 42 A.L.R. 117 (Davies J.)."

Later in the judgment (pp.49-50), his Honour said:

para 1 are decisions to which the Act applies, it is

"Having found as I do, that the matters set out in

not strictly necessary to consider whether they also constitute conduct engaged in by the liquidator for the purpose of making a decision. In so far as the relevant decision is that of the Minister, I do not consider the conduct would fall within that description. The language of s.6(1) and para (c) leads to the conclusion that, to be reviewable, the conduct in question must be that of the decision- maker or otherwise attributable to him or her. This does not exclude from review the conduct of departmental officials or ministerial advisers. It is neither necessary nor desirable in the present case to try to define the limits of that circle of persons. It is sufficient for the present to say that in my opinion, whatever, if any, statutory function is to be exercised by the Minister in making his decision on the future of mining on Christmas Island, the liquidator's assessment and recommendation is not conduct attributable to him in the relevant sense. The liquidator is not a servant, agent or officer of the Minister. The assessment, recommendation and negotiation process which he has agreed to undertake does not serve only the Minister's purposes but also his own as liquidator. While it may be that in that regard, the language of s.6 exposes an undesirable lacuna in the coverage of the Act that is a matter for legislative remedy. It is not for the court to insert into it a reading which it will not bear."

Although an appeal from the decision was allowed by a Full Court of this Court (Fisher, Wilcox and Spender JJ. - 25 July 1989 - unreported), the Full Court did not find it necessary to consider the proper construction of s.6 of the Judicial Review Act.

The cases cited reflect the extent to which the construction of s.6 of the Judicial Review Act has been the subject of judicial pronouncement. The question arises whether the Court should, at this interlocutory stage of the present proceeding, express a definitive view upon the question. In my opinion, it is not appropriate to do so and

this for the following reasons.

I am of opinion that it would be preferable that the interpretation of the relevant statutory provision be undertaken not in the abstract but against the background of a finding of relevant facts. No such finding can be made on the material at present before the Court as, although the

respondents have relied on the affidavit of the fourth respondent, it cannot be assumed that the relevant factual material before the Court on the hearing of the substantive application will be confined to the contents of that affidavit.

Further, it may become unnecessary, in order to resolve the issues between the parties, to consider the proper construction of S. 6 of the Judicial Review Act. The primary relief sought by the applicant is the setting aside of the decision made by the first respondent on 13 February 1990 and it seems clear enough that one of the contentions put forward on behalf of the applicant will be that the legality of that decision is tainted by conduct engaged in by the fourth respondent. It may thus be the case that the conduct of the fourth respondent will come into question in the proceeding independently of any relief sought against him.

In the circumstances, I think it appropriate to dismiss the motion in so far as it seeks an order removing the

fourth respondent as a party to the proceeding but without

prejudice to the respondent's right to raise the question on
the hearing of the substantive application.

I have already concluded that pars 6-11 of the amended application should be struck out in consequence of the order that the second and third respondents cease to be parties to the proceeding. Paragraphs (c), (d), (e), (f), (g) and (h) of the relief sought must also be struck out. Consequential amendments to other paragraphs of the amended application would seem to be necessary. Examples are pars 2 and 15.

It remains to consider whether, as the respondents submit, other paragraphs of the amended application should be amended or struck out.

Paragraph 4 is clearly too widely expressed in referring to unidentified officers of the Department of Defence and "associated Departments". It requires substantial amendment.

I am also of opinion that pars (o), (p), (q), (r),

(S) and (t) and par.(u) (first appearing) in the relief sought
by the applicant should be struck out.

I make orders to give effect to the conclusions directions as to the future conduct of the matter. I direct expressed in these reasons. I also give the following

that the applicant file and serve a further amended application and any additional affidavits on which he intends to rely not later than 17 August 1990; that the first and fourth respondents file and serve any additional affidavits on which they intend to rely not later than 14 September 1990; that the applicant file and serve any affidavits in reply not later than 28 September 1990; and that the matter be listed for further directions on 5 October 1990. I reserve to the parties liberty to apply on 2 days' notice.

The costs of the motion will be costs in the

application.

I certify that this and the

preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable M r Justice Neaves .

Dated: 24 July 1990

Counsel for the applicant : Mr M. OIKeefe

Solicitors for the applicant : Gilpin & Associates

Counsel for the respondents	: Mr P.A. Coppel
Solicitor for the respondents:	Australian Government Solicitor
Date of hearing	: 10 May 1990

Date of judgment : 24 July 1990