Fowler, E. Mark v Duffy, M

[1992] FCA 255

Re: E. MARK FOWLER
And: MICHAEL DUFFY; THE TRADE PRACTICES COMMISSION, and JOHN DAWKINS
No. ACT G31 of 1991
FED No. 255
Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(1) and Higgins(1) JJ.

CATCHWORDS

Appeal - order rejecting application for review - no cause of action - no "decision" - decision of primary judge correct - no new question of principle

Administrative Decisions (Judicial Review) Act 1977, s.3

HEARING

CANBERRA

#DATE 22:4:1992

Appearance for Appellant: The Appellant in person

Counsel for the Respondent: Ms Honcope

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The appeal be dismissed.

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

JUDGE1

The appellant sought an order of review by an application dated 12 February 1991. The persons against whom relief was claimed were:

"The person delegated responsibility as Attorney-General, people responsible for operation, decisions and policies of the Social Security Act, the Trade Practices Commission, the Trade Practices Act, and Federal education."

1. The range of respondents seems wide. Further, the range of activities in respect of which the applicant sought relief was also very wide. His application was supported by criticism, extending over 57 pages of single spaced typing, of various aspects of governmental activity. There are numerous attachments setting out correspondence the applicant has had with various representatives of the various respondents. A "refined" statement of claim identified the respondents more particularly as:
   

"Michael Duffy, the Federal Attorney-General, the

Trade Practices Commission and John Dawkins"

1. The original 57 page document (dated 13 March 1991) was supplemented by an eight page document described as a "statement of claim". That document asks this Court to order the respondents to enable the applicant to improve his employment prospects in general and to remedy his situation in particular, by removing barriers to employment which he summarises therein.

2. The matter came before Neaves J. on 14 June 1991. His Honour rejected the application summarily on the ground that it revealed no cause of action against any of the respondents. His Honour also noted that no "decision" had been identified which fell within the ambit of the Administrative Decisions (Judicial Review) Act 1977.

3. Indeed, insofar as the applicant complained of the general administration of the economy and the legal system, that is self-evidently correct. He now appeals to this Full Court.

4. A careful perusal of the material presented by the applicant and clarification elicited during the course of the hearing has identified a more particular matter of complaint. It is at the heart of the applicant's complaints.

5. It seems that, in September 1987, the applicant sat for an examination in the subject of contract law. It was set by the Joint Examinations Board, Supreme Court of New South Wales. The examiners failed the applicant. He regards that decision as wrong and the refusal to reverse it as unjust. The process of decision and review was also attacked by the applicant as lacking natural justice.

6. The applicant considered that the impugned examination result raised issues of interest to the Trade Practices Commission. He felt that he was being denied entry to employment by the anti-competitive behaviour of the Board in wrongly failing him in the abovementioned examination.

7. The Commission (3.2.88) wrote to the applicant stating:
   

"As the matter you have raised does not involve a breach

of (the Trade Practices Act 1974 (Cth)) the Commission

is unable to help you."

1. The applicant was not satisfied with this response. He sought the aid of Mr Dawkins, then Minister for Employment, Education and Training. A response dated 1 June 1989 from Mr Dawkins' Department stated:
   

"The matters raised fall within the portfolio responsibilities of the Attorney-General ..."

The complaint was then referred by Mr Dawkins' Department to the Attorney-General's Department. It is not clear whether the Attorney-General's office has responded to the applicant's complaint. It may have but we cannot find a response in the appeal papers.

1. The applicant also referred his grievance to the Independent Commission Against Corruption (NSW) and the House of Representatives Standing Committee on Legal and Constitutional Affairs. Neither of those bodies could have remedied the applicant's grievance and have so informed him.

2. We note that the applicant did seek a review of the decision to fail him from the Barristers and Solicitors Admission Boards but that request was unsuccessful in obtaining relief.

3. It is, of course, neither possible nor appropriate for this Court to comment on the merits or otherwise of the decision to fail the applicant in the subject of contract law. Further, that decision and the result of the review of it notified 16 December 1987 are clearly not decisions made "under an enactment" in the sense in which that term is used in s.3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

4. The term "enactment" does not include a decision made under State law whether or not that decision might have an effect on Federal concerns in terms of economic regulation or other interests of the Commonwealth.

5. The Trade Practices Commission has no jurisdiction to consider the educational policies of the Joint Examinations Board. Of course, decisions to fail candidates for examination will have an indirect effect on competition, but such decisions are not acts done in the course of trade and commerce. Still less are they acts done in respect of interstate trade and commerce. They relate to matters solely the concern of the State of New South Wales. It was not a matter that fell within the portfolios of either the first or third named respondents either generally or under any specific legislation. There was and is no "decision" they could or did make.

6. Of course, it is to be hoped that general impediments to employment will be lessened by sound government policies and administration. That is, however, not a matter about which this Court can give directions or should give advice.

7. It follows that the decision of the learned primary judge was correct. This appeal must be dismissed.