Eatts v Dawson

[1990] FCA 158

JUDGMENT No. .!S?$..? .?.h

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG53 of 1990
)
GENERAL DIVISION	)

BETWEEN:  BURSWOOD MANAGEMENT
LIMITED, DALLAS REGINALD
DEMPSTER and LIN KOK THAY

Applicants

AND :  THE ATTORNEY-GENERAL OF
THE COMMONWEALTH OF
AUSTRALIA and THE DIRECTOR
OF THE OFFICE OF LEGAL AID
ADMINISTRATION

Respondents

CORAM :	Davies J.
DATE :	11 April 1990
PLACE :	Sydney

REASONS FOR JUDGMENT

EX TEMPORE

This is an application to review the grant of legal

aid to persons ("the Grantees"), who are applicants in
proceedings in this Court, which proceedings are in the
Western Australian registry of the Court. The application
also seeks an order with respect to a decision not to issue
a statement under s.13 of the Administrative Decisions

l - 3 0 APR 1990

(Judicial Review) Act	1977 (Cth)("the ADJR	~ct"),	with
respect to that grant	of legal aid.

The legal aid was granted in the Western Australian

proceedings under s.170 of the Trade Practices Act 1974

(Cth) which provides:-

"(1) A person -

(a)	who has instituted, or proposes to institute, a proceeding before the Commission or the Tribunal, or a
proceeding before the Court under Part V1 or section 163A;
(b)	who is entitled to participate, or has been permitted to intervene, in a proceeding before the Commission or the Tribunal; or
(C)	against whom a proceeding before the Court has been instituted under Part V1 or section 163A,

may apply to the Attorney-General for a grant
of assistance under this section in respect of

the proceeding.

under sub-section (l), the Attorney-General, (2) Where an application is made by a person

or an officer of the Australian Public Service
authorized in writing by the Attorney-General,
may, if he is satisfied that it would involve
hardship to that person to refuse the
application and that, in all the
circumstances, it is reasonable that the
application should be granted, authorize the
grant by the Commonwealth to the person,
either unconditionally or subject to such
conditions as the Attorney-General or officer
determines, of such legal or financial

assistance in relation to the proceeding as

the Attorney-General or officer determines."

On 5 January 1990, Nr Wheeler, an officer of the

Office of Legal Aid Administration of the Commonwealth
Attorney-General's Department, wrote to the solicitors for
the applicants in the Western Australian proceedings

"I refer to your letter of 21/12/1989 about

your clients' case in Federal Court WAG 121 of
1988. I am now satisfied on the public
interest aspects, importance and prospects of

success of the case.

Financial assistance has been authorized for
the purpose of your clients' legal

representation in the proceeding."

Subsequently, when asked for a statement of the

reasons for that decision, Mr Wheeler said in a letter dated

15 January 1990:-

"Applications for financial assistance under
s.170 Trade Practices Act are dealt with on a
confidential basis. Decisions have to take
into account the financial and domestic
circumstances of applicants and the nature,
merits, and public interest aspects of their
case.

In order to make a proper determination it is necessary that absolute confidentiality exist between an applicant and the Department.

Without such confidentiality in respect of
information supplied and of the assessments of
hardship, reasonableness and public interest
that are made, the present administration of

financial assistance schemes would not be

possible. 'l

The reference by Mr Wheeler to s.13A of the ADJR

Act is a reference to sub-section ( 2 ) thereof which

"(2) Where a person has been requested in

accordance with sub-section 13(1) to furnish a

statement to a person -

(a)	the first-mentioned person is not required to include in the statement any information in relation to which this section applies; and
(b)	where the statement would be false or misleading if it did not include such information - the first-mentioned person
is not required by section 13 to furnish the statement."

In an affidavit before the Court, Nr Wheeler has

deposed that he considered that the material communicated to
him by the Grantees was confidential and that he believed
that to issue a statement under s.13 of the ADJR Act
omitting that material would result in a statement that was

false and misleading.

As I have indicated in the course of argument, I

think that Nr Wheeler's affidavit does not conclude this
aspect of the matter, for a decision-maker is bound to give
a statement unless sub-section (2) applies; namely, unless
the statement would be false or misleading if the
confidential material were omitted from the statement. In
my opinion, that is ultimately a question on which the Court

may rule.

It was put by counsel for the respondents in this

application that the onus was on the applicants in this	application to bring forward material showlng that that
result would occur. However, it seems to me that the question of what would be in the statement where the confidential material omitted was so much a matter peculiarly within the knowledge of Hr Wheeler that it could not be expected of anybody seeking a s.13 statement that he should bring material forward showing a prlma facie case on
that point. It seems to me that the burden of showing that there is a prima facie case or a case that the statement would be false and misleading if the confidential material were excised lies upon the decision-maker.

In a matter such as thls, I think the Court will be

much guided by the practice with respect to discovery when
allegations are made that documents are confidential or the
subject of legal professional privilege, in which case
ordinarily a deponentrs belief as to those matters will be
accepted provided that there is no particular reason to
challenge what is deposed to.

In the present case, however, it seems to me that

there is some reason for challenging Hr wheeler's belief.
~t seems to me that one would expect that much of the
material that was before Mr Wheeler at the time of making
his decision was matter in the public domain. Mr Wheeler
must have had the pleadings and other documents that have
been filed in the Western Australian proceedings. He must
have formed some view as to what were the allegations and he

must have formed some view as to whether the subject matter

of the dispute was a matter which was properly the subject
of a grant of legal aid. Furthermore, he referred in the
letter of 5 January 1990 to public interest aspects of the
proceedings. One would think that these were unlikely to be

confidential.

Accordingly, I have in mind that, if I were to

proceed further in thls matter, I would order Mr Wheeler to
produce to the Court a statement, verified shortly on
affidavit, setting out all the matters which, had mr Wheeler
been under no constraint by the provisions of s.13A of the
ADJR Act, he would have set out in the statement. I have in
mind that that statement would be produced to the Court on a
confidential basis so the Court could examine for itself
whether what was left after excision of material considered
by mr Wheeler to be confidential was in fact false and
misleading or whether there was left a statement which
should be issued to the applicants in these present
proceedings.

That now brings me to another issue and that is

whether the decision to grant legal aid was a decision which
was excluded from the operation of s.13 of the ADJR Act by
paragraph (f) of Schedule 2. Paragraph (f) reads:-

"decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may

result in, the bringing of such proceedings
for the recovery of pecuniary penalties
arising from contraventions of enactments,

and, in particular -

(i)	decisions in connection with the
investigation of persons for such contraventions;
(ii)	decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;
(iii)	decisions in connection with the issue of search warrants, Writs of Assistance or Customs Warrants under enactments; and
(iv)	decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses;"

The vital words are the opening words of that paragraph, namely: -

"decisions in connection with the institution

or conduct of proceedings in a civil court..."

Those words may be read on their own without restriction
from the succeeding words of the paragraph, as appears from
the analysis which was made of paragraph (e) in Ricegrowers
Co-operative Mills Limited v. Bannerman (1981) 56 F.L.R.

1443.

The words "in connection with" are words of varying

meaning taking their effect from the context in which they are used. I have myself examined the matter in Hatfield v. Health Insurance Commission (1987) 15 F.C.R. 487 at p.491.

I there pointed out that the words "in connection with" are wide words, and indeed they are the widest one can use, but that they ordinarily are to be read down by reference to the

context of the enactment.

As to the meaning in the present context, I would

simply refer to my observation at p.491 of Hatfield's case

"In Johnson v. Johnson [l9521 P47 at 50-51,
Sommervell LJ found helpful the discussion by
McParlane J. in Re Nanaimo Community Hotel Ltd
[l9441 4 DLR 638 of the term "in connexion
with", including his Honour's remark that "The
phrase 'having to deal with' perhaps gives as
good a suggestion of the meaning as could be

had. " "

In that case, I expressed at p.493 the view as to the meaning of the words "relating to" in paragraph ( e ) of the second Schedule:-

"In my opinion paragraph (e) refers to
decisions which are part of the administration
of justice and part of the investigation of
persons for offences and also, I would accept,
to decisions that are ancillary or incidental
thereto or made in assistance thereof. The
paragraph does not, however, encompass
decisions which were not made in the course of
the administration of justice or the
investigation of persons for offences but
which are simply connected in an indirect
manner therewith. Decisions of the latter
type do not have the necessary relationship."

In the present case, it is clear that, if the words

"in connection with" are used in the widest sense, they
would encompass any decision to grant legal aid. As appears
from paragraph 12 of the affidavit of Yew Seng Kwa sworn 16
February 1990, it is unlikely that the proceedings in
Western Australia would be pursued in the absence of
financial assistance.

The question, nevertheless, is whether that is

sufficient. Mr Archer, counsel for the applicants in the
present application, submitted that the relationship was
only indirect or tangential and not directly related to the
conduct of the proceedings. It should be noted, however,
that paragraph ( f ) does not refer to decisions in the
institution or in the conduct of proceedings but to

decisions in connection therewith.

So here we have a case where a decision was made

that financial assistance be given by the Attorney-General's Department for the provision of legal representation in the Western Australian proceedings. The question is was that a decision in connection with the conduct of the legal

proceedings.

Mr Archer submitted that it was not a decision made

in the course of the administration of justice, which he
submitted was the subject of paragraph (f). In present
days, however, the provision of legal aid is a matter which
is an incidental part of the administration of justice. It
is common knowledge that legal representation could not be
provided in many cases and the proceedings would not be
instituted or defended but for legal aid.

Mr Archer also submitted that paragraph (f) was a paragraph which concerned itself only with Commonwealth

litigation.	It seems to me, however, that the paragraph
cannot be read down in that way.	It concerns itself with

litigation in a civil court and has to be interpreted
accordingly. The decisions to which the ADJR Act apply are

decisions made under a Commonwealth enactment as defined in

s.3.	That is the provision which limits the ambit of the
Act.

The matter then for my decision is this. Financial

assistance has been given to enable there to be legal
representation. If the financial assistance is withdrawn,
it is unlikely that the proceedings will be pursued, and
indeed, that appears to be the object of the present
application, namely, to bring the proceedings in Western
Australia to an end by obtaining the withdrawal of the legal
aid. In these circumstances, was the grant of aid a
decision in connection with the conduct of the proceedings
in Western Australia?

My view is that the decision was a decision in

connection with the conduct of those proceedings because it
was a decision vitally connected with the conduct and
provided the financial assistance to enable those

proceedings to be conducted.

For this reason, I am of the view that paragraph

(£1 excludes the subject decision from the operation of s.13
of the ADJR Act. That part of the application before me

should therefore be dismissed.

Counsel for the applicant has therefore asked me to dismiss the totality of the proceedings, as the applicant is not in a position to proceed with its challenge to the grant of legal aid in the absence of a statement under 5.13 of the ADJR Act. I shall therefore dismiss the application. I

will make no order as to costs.

I certify that this and the 10
preceding pages are a true copy of
the Reasons for Judgment herein of

the Honourable Mr Justice Davies.

Associate: &&z-m.	LIP?UI(IIU:
Date:	11 April 1990
Counsel for the applicant:	Mr S.J. Archer
Solicitors for the applicant:	Nallesons Stephen Jacques
Counsel for the respondent:	Nr G.T. Johnson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	11 April 1990
Date of judgment:	11 April 1990