Fordham, Robert Clive the State of Victoria v Evans, G.

* 237

CATCHWORDS

Crown -

Administrative Decisions

(Judicial Review)

Act 1977

Application to be made a party

to application for review - Who

"a person interested in a decision".

Administrative Decisions (Judicial Review) A c t 1977 - s.12

ROBERT CLIVE FORDHAM and THE STATE OF VICTORIA v. G	m	EVANS AND
ORS .
-
No. VG628 of 1986
Jenkinson J. Melbourne
6 May, 1987

IN THE FEDERAL COURT OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	) No. VG 628 of 1986
GENERAL DIVISION	1

BFlwEEN:

ROBERT CLIVE FORDHAM

and

THE STATE OF

VICTORIA

Applicants

m:	GARETH EWANS AND ORS.

Respondents

MINUTES OF ORDER

CORAM:	Jenkinson 3.
PLACE :	Melbourne
W:	6 May, 1987

The Court Orders That:

1.	Oil Basins Limited	be added as a	party respondent to	the
application.

The costs of

each of Robert Clive Fordham, The State

Victoria, Gareth &ans and Oil Basins Limited

of the

motion of which notice

was filed 17 March

1987 be that

party's costs in the cause.

The costs of BHP

Petroleum

Pty. Ltd. and

Esso

Exploration and Production Australia

Inc. of the said

motion other than

the costs of

the affidavit of

Denis

Worrall sworn 18 March 1987

be their costs in the cause.

The Court Orders Bv Consent That:

The applicants file and serve

particulars

of the grounds

of the application numbered 1,	2 and 3 on or before	27
May 1987.

Each respondent file and serve

on or before 24 June 1987

a statement in writing of the contentions upon which he

or it relies in relation to the matters raised by	the
grounds of the application numbered 1, 2 and 3.

The application

placed

the

list

of cases to

called over in June 1987.

2 .

Subject

to any order of the judge

before

whom

the

application is fixed for hearing the questions raised by the grounds of the application numbered 1, 2 and 3 and the statements filed pursuant to the order contained in paragraph 2 of this order be decided before the hearing

of any other question in this

proceeding.

The directions hearing

be adjourned to a date

fixed by any party on reasonable notice	to the other
parties.

6 .

The costs of the parties of the directions hearing on

April 1987 be

reserved.

IN THE FED-

COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY	1 No. VG 628 of 1986
GENERAL DIVISION

BEIWEEN:

ROBERT CLIVE FORDHAM and

THE STATE OF

VICTORIA

Applicants

m: GAREZ7-I EVANS AND ORS.

Respondents

a:	Jenkinson J.
&&g:	Melbourne
m:	6 May, 1987

REASONS FOR

JUDGMENT

Motion by Oil Basins Limited for an order under 6.12 of

the Administrative Decisions (Judicial Review)

Act 1977 that it be

made a party to an application for an order of review in	respect
of a decision.

The

decision

which

the

application

relates is,

according to the assertions

contained in the originating document

(also called "application"), one which the respondent Gareth Evans

made, that certain directions should be given by a Joint Authority

constituted under the Petroleum (Submerued Lands) Act 1967 to a

Designated Authority, in exercise of functions conferred on the

Joint Authority in that behalf by

s.lOA

the

Petroleum

(Submerued Lands) (Rovaltv)

Act 1967.

The directions were with

respect to the manner

in which the Designated

Authority

should

L .

exercise certain functions and powers under 6.9 of the Petroleum JSubmerued Lands) (Rovaltv) Act 1967. The applicant Robert Clive Fordham was at relevant times the Designated Authority. If the powers were exercised in accordance with the directions, a

particular amount

would in consequence

be the value at the

well-head, for the

purposes

of the Petroleum (Submerued Lands)

(Royalty) Act 1967, of petroleum recovered or to be recovered by the other two respondents within a particular area. Oil Basins Limited (OBL) claims to be entitled to payment by those respondents of a percentage of the gross value of hydrocarbons recovered and to be recovered by those respondents in that area. The claim rests upon the provisions of a contract. OBL claims the entitlement as an assignee of rights conferred by the contract. OBL makes several alternative contentions as to the means of ascertaining, upon the proper construction of the contract and in the events which have happened, the value of hydrocarbons

recovered for

the purposes of calculating its entitlement.

According to one

of those contentions, that value is that which is

the value at the well-head, for the purposes

of the Petroleum

(Submerued Lands)(Rovaltv) Act 1967, of petroleum recovered or to be recovered by the respondents BHP Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc. And it is not suggested that such a contention is untenable.

Section 12

the Administrative Decisions (Judicial

Review) Act 1977 provides:

“(l) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or

in a failure to make a decision, being a decision, conduct of failure

in relation to which an application

has been made to

the Court under

this Act, may apply to the Court	to
be made a party to the application.

( 2 ) The Court may, in its discretion -

(a) grant

the

application

either

unconditionally or subject to such conditions as it thinks fit; or

(b) refuse the application."

The applicants consented

the order

sought by OBL.

The respondent Gareth Evans did not oppose the making

of the

order. But Mr.

Hayne P.C.,

who appeared with Mr. Judd for the

respondents BHP Petroleum Pty. Ltd.

and Esso !Zxploration and

Production Australia Inc., submitted that OBL ought not to be made

a party. They contended that OBL was not a "person interested in" the decision which is the subject

of the application for

review,

within the meaning

of 6.12.

It was submitted that an interest

which derived, not immediately

from an effect of the decision on

the person claiming to be interested, but from an effect mediated through a causal chain of several links, did not satisfy the

statutory requirement.

Here, it was said, such a chain

was

evident : by reason of voluntary acts on the part of OBL and the

two respondents for which Mr. Hayne appeared, a contractual right to a royalty was to be measured by reference to an amount, the ascertainment of which, for purposes in which OBL had no concern, would be influenced by the decision in respect of which the order of review was sought.

Much the same

could be

said

about the

causal

chain

linking the decision In respect of which an order of review was

sought in Toohevs Ltd. v.

Minister for Buslness and Consumer

Affairs (1981) 36

A.L.R.

64 and the economic interest, of the

applicant for the order, which was

prejudiced by the decision. As

in the present case, voluntary acts creating contractual relations

between the applicant and

a person immediately affected by the

decision the subject of the application had resulted in the applicant's having an interest in that decision, which determined whether or not customs duty was payable by that other person upon

the importation

the goods which were the

subject

the

contract for sale to the applicant

by the other

person.

was

said by Ellicott J. in that

case, and by the members of the Full

Court of this Court

in Ricesrowers Co-operative Mills

Ltd. v.

Bannerman (1981) 38 A.L.R. 535 at 539-540, 544 that not only

who has "a legal interest at stake in the making of the decision", but also he who can show a grievance which will be suffered as a

result of the decision beyond that of

an ordinary member of

the

public is a "person who is aggrieved by" that decision, within the

meaning of that

expression in s.5(1) of the

Administrative

Decisions (Judicial Review)

Act

1977.

Mr. Hayne

distinguished

those pronouncements by the submission that the expression "person

interested in a decision" in s.12(1) defined a substantially more

restricted class - those whose legal interests were affected by the decision - than the expression "person who is aggrieved by a

decision" in s.5(1).

As Young C.J. pointed out in Australian Conservation

Foundation v. Environment Protection APDeal Board C19831 V.R.

385

at 393, the expression "person interested" has been used in

many

5 .

statutes. The subject matter of the interest has a substantial influence on determination of the meaning to be assigned to the expression in any particular statutory context. (Cf. In re RoehamDton Swimmino Pool Ltd, C19683 1 W.L.R. 1693 at 1696-1699.) In respect of the expression "person who is aggrieved by a decision", Ellicott J. observed (36 A.L.R. at 79): "I am satisfied from the broad nature of the discretion6 which are subject to

review and from the fact

that the procedures are clearly

intended

in part to be a substitution for the more complex

prerogative writ

procedures that a narrow meaning was

not intended".

The same

considerations suggest

the same conclusion concerning the phrase

"person interested in a decision" in s.lZ(1). The phrase "person interested" had at one time a place in statements, both curial and

legislative,

concerning those "prerogative writ

procedures"

which Ellicott J. referred. In

particular,

the

phrase was

formerly used to designate those to whom notice of an order nisi for mandamus should be given, and those who should be heard to

show cause on the return of the order nisi : see Short and

Mellor's Crown Practice (1st ed.) pp.

38, 40, 525; In re Shire of

East Loddon: ex parte Chevne (1898) 24

V.L.R. 703 at 705. It does

not appear that only a person whose

legal interest would be

affected by the result of the proceeding was allowed	to show cause
: see Reo. v. The Mavor of Exeter (1868) L.R. 4 Q.B.	110 at 112.

It is sufficient for present purposes to say that in my

opinion a person

whose legal rights

against another may be

affected by a

decision is

a person interested in the decision,

within s.12(1), if

the possibility is a real, and not a remote,

fanciful possibility.

OBL is such a person, in my opinion. To go

6 .

so far is to go

no further, in enlargement of the

Class

comprehended by the phrase "person interested

in a decision", than

Ellicott J. went in enlargement of the class comprehended by

the

expression "person who is aggrieved by a decision". Indeed,

it is

to go not

so far, for Ellicott J.

and the members

of the Full

Court in RiceoroBrs Co-operative Mills Ltd. v. Bannerman, supra declared that the latter expression comprehended any person who

can show a grievance which will be suffered

a result of

the

decision beyond that which

he or she has as an

ordinary member of

the public. It

might be thought

that the draftsman of s.12(1)

would not have wished to offer, to every person

able to show a

grievance which will be suffered as a result of the decision or as a result of the quashing or setting aside of the decision, beyond that which an ordinary member of the public will have, an

s opportunity to be made a party to proceedings for review of

the

deciaion.

The question

whether or

not the draftsman did confer

the opportunity on a class so widely defined need not be answered

on this occasion, I think.

The structure and verbiage

of sub-section 12(2) makes it

clear that membership

of the class defined

in sub-section 12(1)

confers no right to joinder in a proceeding for an order of review

under the Act,

but merely a right

to have exercised the Court's

discretionary judgment whether to make the applicant under 6.12 a party. The Act contains no statement of any criterion by reference to which the discretion is to be guided. The applicant's interest in the decision, by reason of which he or she

gained entitlement

to make the application under

6.12. will no

doubt afford also a consideration

in favour

granting

the

7 .

application. But the weight of that consideration may be great or small, according to the nature of the interest. When in 1960 the contract was made which adopted for the purposes of the

calculation of royalty the value

of hydrocarbons "on which royalty

to the State is based", the party to which the contract provided that royalty should be paid had no reason to suppose that it would be able to take part in any curial proceeding the result of which

would, or might, influence

that value on which

royalty to the

State should be based. m e n in 1972 OBL completed the transactions by reference to which it makes its present claim to royalty from the respondents B.H.P. Petroleum Pty. Ltd. and Esso Exploration and Production Australia Inc., OBL had no reason to

make

such

supposition.

The applicant in Toohevs Ltd. v.

Minister For Business and Consumer Affairs, supra

could hardly

have avoided bearing the burden

of whatever customs duty the

goods

it wished to buy would bear. But

no practical necessity which the

evidence discloses required the adoption

by the

parties to the

contract of 1960 of a value for the purposes

of exactions by "the

State" as the value for

their contractual purposes.

For those

reasons OBL's claim to an exercise in its favour of the power to

make it a party is not strong, in my opinion. Further, it is not apparent that the addition of OBL as a party would result in the

Court's having the benefit

of submissions or evidence which none

of the other parties would advance or adduce.

On the other

hand,

partiea on both sides of the record, being in one case an Australian body politic and in the other cases representatives of executive governments within Australia, have expressed no

opposition to joinder of OBL.

Two of those parties have expressed

their consent. The amount of money which OBL might gain or lose

on the outcome

of this proceeding

is very great.

There 1s

other person seeking to be

joined as a party, nor does it

presently appear that any other may seek to be

~oined.

The respondents for which

Mr.

Hayne appears sought

show by evidence that OBL had engaged in conduct inconsistent with the assertion OBL now makes that it has an interest in the subject

matter of this proceeding.

I do not consider that the evidence

adduced to

that

end does establish the inconsistency

alleged.

Evidence was also adduced

behalf of

those

respondents

establish that OBL had breached an undertaking that it would

not

make disclosure of certain information in the manner in which such

a disclosure was in fact

made by OBL after

the

suggested

undertaking

had

been

given.

the

breach suggested were

committed, as to which it is unnecessary

that I make a finding,

that circumstance would

not influence me to a different conclusion

about the application for

joinder.

In all the circumstances I am persuaded to accede,

but

doubtfully, to the application that

OBL be joined as a party.

I certify that this and the seven

preceding pages are a true copy

of the Reasons for Judgment herein of the Honourable Mr.	Justice
Jenkinson.

P--	Associate

Dated: 6 May, 1987

VG628 of 1986

Counsel for the Applicant	-	Mr. H.C. Berkely P.C., Mr. B.J.
Shaw P.C. and Mr. M.A. Adams
Solicitor for the Applicant	-	Victorian Government Solicitor

Solicitor for the first named -	Australian Government Solicitor
Respondent
Counsel for the second named -	Mr. K.M. Hayne P.C. and Mr.
and third named Respondents	J.E. Judd

Solicitors for the second	-	Middletons, Oswald Burt
named and third named Respondent
Counsel for the Applicant to	-	Mr. R. Merkel P.C. and Mr. J . G .
be joined as a party	Santamaria
Solicitors for the Applicant	-	Arthur Robinaon and Hedderwicks
to be joined as a party
Date of Hearing	-	23 April, 1987

[1987] FCA 237

6 May 1987