Fuller, Donald v Minister for Primary Industries and Energy

[1997] FCA 1138

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW  -  application for leave to appeal from refusal to grant an extension of time to file proceedings under the Administrative Decisions (Judicial Review) Act 1977 - futility of intended proceeding and availability of relief by application for review under the Administrative Appeals Tribunal Act 1975.

Administrative Decisions (Judicial Review) Act 1977
Biological Control Act 1984 (Cth)
Agricultural and Veterinary Chemicals Code Act 1994 (Cth)
Veterinary Chemicals Code Act 1994 (Cth)
Federal Court of Australia Act 1976 (Cth)

Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 distinguished
Hall v The Nominal Defendant (1966) 117 CLR 423 applied
Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 applied
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Jarrett v Seymour (1993) 46 FCR 557 applied

DONALD FULLER v MINISTER FOR PRIMARY INDUSTRIES AND ENERGY and NATIONAL REGISTRATION AUTHORITY
WAG 94 OF 1997

BURCHETT, LEE AND CARR JJ
PERTH
29 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 94  of   1997
GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DONALD FULLER
Applicant

AND:

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY
First Respondent

NATIONAL REGISTRATION AUTHORITY
Second Respondent

JUDGES:

BURCHETT, LEE AND CARR JJ

DATE OF ORDER:

29 OCTOBER 1997

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

Leave to appeal be refused with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 94 of 1997
GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DONALD FULLER
Applicant

AND:

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY
First Respondent

NATIONAL REGISTRATION AUTHORITY
Second Respondent

JUDGES:	BURCHETT, LEE AND CARR JJ
DATE:	29 OCTOBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

BURCHETT AND LEE JJ:

The applicant, Mr Fuller, sought an extension of time to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 in respect of certain decisions of each of the respondents made in respect of the biological control of rabbits by means of the rabbit calicivirus. The application was refused by French J on 7 August 1997 for reasons then stated by him in detail. Among those reasons was “the absence of a succinct and clear statement of grounds of review in the application itself and the impression that emerges from the various materials put before the Court that this is in substance a challenge to the merits of decisions which have to be taken on the basis of expertise and scientific evaluations.”

Mr Fuller filed a purported notice of appeal against his Honour’s dismissal of his application and, the matter being held by this Full Court to be interlocutory, sought leave to appeal.  That leave was refused with costs.  We now deliver our reasons.

Despite the comment of French J concerning the absence of any clear statement of grounds, and a further comment that fraud had been alleged without any specification of the basis of that charge, the argument presented to us over about a full day still omitted any clarification or particularisation of the sweeping allegations made by Mr Fuller.  His lengthy submission was entirely concerned with issues going to the scientific merits of the programme with which the impugned decisions were concerned.

This Court is not the place for debate about the conclusions of scientists in proceedings for judicial review of administrative decisions.  There is on foot, the Court was informed, an application to the Administrative Appeals Tribunal (AAT) for merits review which raises the same fundamental questions.  That application was not brought by Mr Fuller, but by a body in which he is an important figure.  He has already conducted one case on its behalf in opposition to the decisions in question.  For all that appears, he could have been, had he so chosen, a party to the application in the AAT.  At all events, the existence of the AAT proceedings is a relevant matter.  The likelihood that an extension of time would simply multiply the proceedings in which Mr Fuller has an interest, in which the essential issues relate to the merits of the calicivirus programme, is a strong reason to refuse the application.  Cf. Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530.

But the fundamental weakness in Mr Fuller’s application is that, despite the enormous amount of work he has done in the compilation of some seven volumes of appeal books, he has still failed to identify grounds for judicial, as distinct from merits, review.  And the nature and content of his oral presentation to this Court confirm that the failure is not one of legal drafting, but of substance.  In the circumstances, a grant of an extension of time would be a futility.

It was for these reasons that the Court refused leave to appeal.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Burchett and Justice Lee

Associate:

Dated:            29 October 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 94 of 1997

GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DONALD FULLER
Applicant

AND:

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY
First Respondent

NATIONAL REGISTRATION AUTHORITY
Second Respondent

JUDGES:	BURCHETT, LEE & CARR JJ
DATE:	29 OCTOBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

CARR J:

Introduction
This is an application for leave to appeal from a judgment of a judge of this Court, given on 7 August 1997, refusing the applicant’s motion for an extension of time in which to apply for an order of review of the decisions referred to below.  Interlocutory relief, which the applicant sought in the same motion, was also denied.

The applicant sought review of two decisions.  The first decision, made by the Minister for Primary Industries and Energy on 13 September 1996, was to declare Rabbit Calicivirus Disease organism to be an agent organism for the purposes of the Biological Control Act 1984 (Cth) (“the Minister’s Declaration”). The second decision, made on 16 September 1996, by the National Registration Authority for Agricultural and Veterinary Chemicals (“the NRA”) was to register the Rabbit Calicivirus Injection as a chemical product under the Agricultural and Veterinary Chemicals Code Act 1994 (Cth). The relevant statutory provisions are set out in the reasons for judgment of the learned primary judge.

It is necessary to set out some of the factual background of this and a preceding matter.  On 10 October 1996 an organisation called the Defence Coalition Against RCD Inc. (“the Defence Coalition”) filed an application in this Court seeking orders under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) seeking review of the Minister’s Declaration. I shall refer to those proceedings as “the First Application”. On 18 October 1996 the Defence Coalition filed a motion seeking orders that the NRA be joined as second respondent to the First Application and that interlocutory relief be granted in the form of a “suspension” of the Authority’s decision to register the Rabbit Calicivirus Injection.

On 23 October 1996 Nicholson J dismissed the claim for interlocutory relief and stood over the motion for joinder. On 25 October 1996 a motion was filed on behalf of the Minister seeking an order that the First Application be dismissed. That motion was based on two grounds. First, that there was no reasonable basis for the application. The second ground was that the Defence Coalition was not a person whose interests were adversely affected by the Minister’s decision, and was thus not a “person aggrieved” within the meaning of that expression in the ADJR Act.

The applicant in these proceedings (Mr Donald Fuller) was at all material times a member of the committee of the Defence Coalition and in fact represented the Defence Coalition in the proceedings before Nicholson J.  On 20 February 1997 Nicholson J heard argument in respect of the Minister’s motion.  On 12 March 1997 Nicholson J dismissed the First Application and ordered the Defence Coalition to pay the Minister’s costs.  His Honour held that the Defence Coalition lacked the necessary standing to qualify as a “person aggrieved” for the purpose of bringing the First Application.  He said:

“The true position is the decision does not affect the members of the applicant differently from ordinary members of the public except in relation to their emotional and intellectual interest in the subject matter of the decision.  On the applicant’s case it is not shown that success in the action would relieve it of a detriment or disadvantage to which it would otherwise have been subject to an extent greater than an ordinary member of the community.”

On 10 April 1997 Mr Fuller filed an application on his own behalf for an extension of time in which to apply for an order of review of the two abovementioned decisions.  The learned primary judge heard that motion on 13 June 1997 and delivered a reserved judgment on 7 August 1997.  His Honour stated that on the basis of “the obviously contentious evidence and the questionable legal case disclosed thus far” he would not, if time were to be extended, grant interlocutory relief.  His Honour noted that the relevant delay appeared to be in the order of nearly three months.

As his Honour observed, the substance of the basis for the application for an extension of time seemed to be that it was the failure of the Defence Coalition in the Federal Court which gave rise to the perceived need for the applicant to bring a personal application for review.  There was evidence before his Honour (from Mr Fuller) that his reluctance to become involved as an applicant in the First Application related to his desire not to expose himself to the potential costs of that litigation.  His Honour expressed the following conclusions:

“The discretion of the Court to extend time to bring an application under the AD(JR) Act is a broad one to be exercised by reference to a variety of factors which may differ from case to case.  These include the nature and seriousness of the issues sought to be raised in proceedings and the explanation for the delay which has occurred.  [There then followed a citation from Johns v Australian Securities Commission (1992) 108 ALR 405 at p 413] ... There is no doubt from Mr Fuller’s perspective that he regards the issues raised in this matter as of utmost seriousness in the public interest.  However, the delay which has ensued would appear to have resulted from his own choice to effectively proceed to the challenge of the decision through the vehicle of the Defence Coalition.  In that sense the delay which has occurred is as a result of his own decision.  Also relevant to the exercise of my discretion is the absence of a succinct and clear statement of grounds of review in the application itself and the impression that emerges from the various materials put before the Court that this is in substance a challenge to the merits of decisions which have to be taken on the basis of expertise and scientific evaluations.”

His Honour refused an extension of time for the bringing of an application for an order of review of the two abovementioned decisions.

Reasoning
The cases establish that an order refusing an extension of time allowed for commencing proceedings is an interlocutory judgment - see for example Hall v The Nominal Defendant (1966) 117 CLR 423; Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129. Accordingly, an appeal from such an order is conditioned upon the grant of leave to appeal - see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

The traditional test to be applied in respect of an application for leave to appeal in these circumstances is to ask two questions, namely:

1. Is the order attended with sufficient doubt to warrant it being considered by a Full Court?

2. If the judgment is wrong, would it work substantial injustice?

This second factor is particularly important if the interlocutory order is, in effect, final.  [In practical terms, I would regard the judgment at first instance as falling into that category.]  This approach has fairly recently been approved in cases such as Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and Jarrett v Seymour (1993) 46 FCR 557.

In my view, the primary judge’s order is not attended with sufficient doubt.  On the contrary, I think that it was plainly correct.  The reason advanced by the applicant for the delay was, in the circumstances, not one which could amount to an acceptable explanation for the delay.  The applicant has not simply stood by and allowed another party to bring an unsuccessful application for judicial review of administrative action and, upon dismissal of that application, sought an extension of time so that he could personally relitigate the same subject matter.  As mentioned above, the applicant was a committee member of the Defence Coalition and conducted its case in the First Application.  He was thus fully aware of all aspects of the proceedings.  Had he wished to advance his own personal case, he had every opportunity to join in those proceedings with the Defence Coalition.  He chose not to do so because, at that stage of the proceedings (i.e. before judgment was given against the Defence Coalition), he did not want to expose himself to an order for costs.  Furthermore, in almost a day of addressing us, the applicant demonstrated that he had no succinct or clear statement of grounds of review.  He thus confirmed the conclusion expressed by the primary judge in the last sentence of the passage which I have set out above.

Even if the judgment at first instance were wrong (which in my view is quite clearly not the case), no substantial injustice would result.  I refer to the pending merits review proceedings mentioned to in the joint judgment of Burchett and Lee JJ, which I have had the advantage of reading.

For the foregoing reasons I joined in the decision to refuse leave to appeal.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr

A/g Associate:

Dated:            29 October 1997

Counsel for the Applicant:	Mr D Fuller appeared in person
Counsel for the First Respondent:	Mr P R Macliver
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr W S Martin with Mr M Van Brakel
Solicitors for the Second Respondent	Messrs Clayton Utz
Date of Hearing:	15 October 1997
Date of Judgment:	29 October 1997