James Richardson Corporation Pty Ltd v Federal Airports Corporation
[1992] FCA 732
•29 SEPTEMBER 1992
Re: JAMES RICHARDSON CORPORATION PTY. LTD.
And: FEDERAL AIRPORTS CORPORATION
No. G27 of 1992
FED No. 732
Practice and Procedure
(1992) 117 ALR 277
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J.(1)
CATCHWORDS
Practice and procedure - motion to strike out application on grounds of competency - section 13(7) Administrative Decisions (Judicial Review) Act - tender unsuccessful - requested statement of reasons - inadequate - sought further reasons - whether a decision of an administrative character made under an enactment - powers and purpose of Federal Airports Corporation - notice requirement - time limit - permissive "may" - whether failure to give the requisite notice merely statutory breach - entitlement as "a person aggrieved".
Administrative Decisions (Judicial Review) Act 1977 Sections 13, 11(3)(a), 3(1)
Federal Airports Corporation Act 1986 Sections 7(2)(j), 9.
Australian National University v. Burns (1982) 43 ALR 25
Australian Capital Territory Health Authority v. Berkeley Cleaning Group Pty. Ltd. (1985) 7 FCR 575
Post Office Agents Association Ltd. v. Australian Postal Commission (1988) 84 ALR 563
Australian Film Commission v. Mabey (1985) 6 FCR 107
Hawker Pacific Pty. Ltd. v. Freeland (1983) 79 FLR 183
ABE Copiers Pty. Ltd. v. Secretary of the Department of Administrative Services (1985) 7 FCR 94
Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 ALR 535
Lally v. The Minister of State for Immigration and Ethnic Affairs 91984) 6 FCR 251 James Richardson Corporation Pty. Ltd. v. Federal Airports Corporation
HEARING
BRISBANE
#DATE 29:9:1992
Counsel for the Applicant: Mr A.J.H. Morris
Solicitors for the Applicant: Feez Ruthning
Counsel for the Respondent: G.J. Gibson QC and J.C. Sheahan
Solicitors for the Respondent: Mallesons Stephen Jaques
ORDER
The notice of motion is dismissed.
The respondent pay the applicant's costs of and incidental to the notice of motion, including reserved costs, if any, to be taxed.
The Court directs that the application be listed for further directions on a date to be fixed by the District Registrar.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is a motion to strike out on the grounds of competency an application by James Richardson Corporation Pty. Ltd. under section 13(7) of the Administrative Decisions (Judicial Review) Act ("the Act").
The applicant was a tenderer for the right to conduct a duty free and sales tax free concession at Sydney and Perth Airports. The respondent, Federal Airports Commission, is a corporation established by the Federal Airports Corporation Act of 1986 ("the FAC Act"). By virtue of the FAC Act the respondent is the owner and operator of the Sydney and Perth Airports.
On 3 October, 1991 the respondent advised the applicant that it had been unsuccessful in its tender for the Sydney Airport concession and that the tender had been awarded to Duty Free Stores Pty. Ltd.
On 11 October, 1991 the respondent advised the applicant that it had been unsuccessful in its tender for the Perth Airport Concession and that the tender had been awarded to Duty Free Stores Pty. Ltd.
On 22 November, 1991 the applicant by separate requests in writing requested a statement of reasons for each of the decisions in relation to the Sydney Airport tender and the Perth Airport tender. Each request purported to be made under section 13(1) of the Act.
On 23 December, 1991 a statement of reasons for the decision in relation to the Sydney Airport tender was received by the solicitors for the applicant. On 24 December, 1991 the applicant's solicitors received a statement of reasons for decision in relation to the Perth Airport tender. Each statement of reasons by the respondent purported to be made under section 13 of the Act.
On 9 January, 1992 the applicant wrote contending that the responses were inadequate in that they failed to make any reference to findings on material facts or to make reference to the evidence on which the findings were based. The applicants sought further reasons.
On 22 January, 1992 the respondent's solicitors wrote in respect of each decision to the applicant's solicitors stating that in their opinion the statement of reasons given in each case satisfied the respondent's obligations under the Act.
On 13 February, 1992 the applicant filed the application herein. On 18 March, 1992 the respondent filed a notice of motion seeking that the application be dismissed on the grounds that:
(a) The decisions referred to in paragraphs 1 and 2 of the application were not decisions of an administrative character made under an enactment and thus not subject to the Act.
(b) That the statement of reasons were not furnished in pursuance of a request under section 13(1) of the Act, as the request was in each case not made on or before the twenty-eighth day after the day on which the writing recording the decision the subject of the application was furnished to the applicant.
It was submitted on behalf of the respondent that the definition of a "decision to which this Act applies" involves two elements. They are:
(a) A decision of an administrative character;
(b) Made under an enactment.
As to the first element, it is submitted that the decision to accept one tender and thereby reject competing tenders is to make a commercial and not an administrative decision. I accept that the nature and contents of the invitations to tender are commercial in nature. I also accept that by section 7(2)(j) of the FAC Act the respondent by statute shall endeavour to perform its functions in a manner that is in accordance with sound commercial practice. However, the question remains where the respondent is an administrative body whose functions, inter alia, are:
"6(a) To operate Federal airports in Australia;
(b) To provide the Commonwealth, governments, local government bodies, and other persons, who operate, or propose to operate, airports or facilities relating to airports (including airports and facilities outside Australia) with consultancy and management services relating to the development and operation of those airports or facilities."
whether the taking of commercial decisions in the discharge of those functions relevantly deprives the decisions of their administrative character. In my view it does not. The decision to accept one tender in preference to others was the exercise of one or more of the powers contained in section 9 of the FAC Act for the purpose of discharging its statutory function as prescribed in section 6 of the FAC Act.
The purpose of the Act was described by Bowen C.J. and Lockhart J. in Australian National University v. Burns (1982) 43 ALR 25 at 30:
"Commonwealth legislation in the field of administrative law is intended to seek a balance between justice to the individual and efficiency of administration, between private rights and public advantage. The administrative process must be efficient in the sense that government policy must be implemented effectively. Nevertheless the achievement of that objective must be consistent with fair play to the individual. The community must be satisfied that the administrative process is conducted with due regard to maintaining a balance between the public interest which it advances and the private interest which it disturbs. This legislation was intended to provide remedies for wrongs done to individuals whose interests are adversely affected by administrative decisions".
Further, the word "administrative" in the context is a very wide term. The Full Court in Australian Capital Territory Health Authority v. Berkeley Cleaning Group Pty. Ltd. (1985) 7 FCR 575 refused to constrain its meaning by reference to notions of administrative law and said (at 577):
"It was submitted that the decision was not of an administrative character. The reason for this, so it was put, is that "administrative" is a very wide term and the Act should be regarded as limited to administrative decisions using "administrative law". The word is not, so it was submitted, to be assimilated to the term "executive". This seems to us to be placing an unnecessary and untenable limitation on the meaning of the word. So far as one looks strictly at what is contemplated within the phrase "administrative law" one is looking to legal remedies. The purpose of the legislation is not to confine the meaning in this way but rather by different machinery to provide for legal remedies in relation to administrative decisions. This is the way the Administrative Appeals Tribunal Act 1975 (Cth) works and the way the Ombudsman Act 1976 (Cth) works. The intention was to give relief in relation to administrative decisions and conduct and the legislature was at some pains in providing wide definitions to this end".
I can see no material distinction between the decisions of the respondent presently under consideration and the decision of the ACT Health Authority to let a tender for cleaning services of a hospital and associated nursing home which the authority administered under an ACT Ordinance. As between the authority and the tenderers, the proposed contract had a commercial nature and the relationship between the parties at the tender stage and thereafter was commercial. However the decision itself related to the discharge of a statutory function. The difference in statutory purpose or function of each administrative body is not material in my view. One ran a hospital; the other runs airports. Both are facilities run for the benefit of the public. Both make decisions in the discharge of their statutory purpose which may impact adversely on the interests of private individuals who are affected by those decisions. I therefore reject the respondent's first submission.
The respondent next submitted that the decision was not made under an enactment. Rather it was submitted that the immediate or proximate source of the power to make the decisions arose out of the invitations to tender and that the decisions were made exercising that power. In this regard reference was made to the decision in Post Office Agents Association Ltd. v. Australian Postal Commission (1988) 84 ALR 563 at 571-573.
I accept that the Act looks to the immediate or proximate source of the power rather than to an ultimate source residing in federal legislation (Postal Agents Association at 571; Australian National University v. Burns at 32, 33-34, 37). However the cases where it has been held that the decision was not under an enactment bear some consideration. The relevant decisions in Post Office Agents Association; Australian National University v. Burns and Australian Film Commission v. Mabey (1985) 6 FCR 107 were all cases where the power exercised was either a contractual right or a common law right arising out of an existing contractual relationship. None of the cases dealt with a decision giving rise to a contract. Those cases concerning decisions on tenders awarded by Commonwealth Government departments turned on the exercise of the power to contract as being the exercise of an inherent prerogative or governmental power. The decision to award a contract was an exercise of that power and therefore not under an enactment (Hawker Pacific Pty. Ltd. v. Freeland (1983) 79 FLR 183 at 186; ABE Copiers Pty. Ltd. v. Secretary of the Department of Administrative Services (1985) 7 FCR 94 at 95).
The cases referred to above deal with different situations to the present case. Here there is no concluded contract under or in respect of which powers have sought to be exercised. Nor has it been suggested that the applicant has an inherent prerogative power to contract. The applicant's power to contract is sourced in section 9 of the FAC Act.
In Australian Capital Territory Health Authority the relevant power of the authority was in section 8 of the Ordinance which provided:
"8. The Authority has power to do all things that are necessary or convenient to be done for or in connexion with the performance of its functions and, in particular, without limiting the generality of the foregoing -
(a) to acquire, hold and dispose of real and personal property;
(b) to enter into contracts;
(c) to erect buildings;
(d) to occupy and use land or buildings made available to the Authority by Australia;
(e) to accept gifts, devises and bequests made to the Authority, whether on trust or otherwise, and to act as trustee of moneys or other property vested in the Authority upon trust;
(f) to let on hire plant and equipment of the Authority;
(g) to enter into arrangements with persons or authorities outside the Territory for, or in connection with, the provision of medical treatment to a person, whether within or outside the Territory;
(h) where the Authority is not able to use buildings, equipment or facilities of the Authority to the full extent of their capacity, to enter into arrangements for the use of the buildings, equipment or facilities by persons or bodies other than the Authority; and
(i) to make the services of staff of the Authority available to persons providing or conducting health services".
The Full Court rejected the submission that the decision was not made under an enactment and was made pursuant to the form of the tender. At 578 their Honours said:
"....The Judicial Review Act does not draw any distinction, or permit any to be drawn, between powers broadly expressed, and those expressed in more detail. The statute is a remedial one, obviously intended to be of wide scope, and within its limits very comprehensive, and it would be contrary to its purpose to read down "under an enactment" in the way suggested. In an attempt to apply Australian National University v. Burns (1982) 64 FLR 166 (see also Australian Film Commission v. Matey (1985) 6 FCR 107) it is submitted that the decision was made pursuant to the form of tender provided; that there was a relevant step or proceeding between the power to contract and the contract. This is merely a partial recital of events, and does no more than relate some of the steps in the making of the contract. Burns does not apply simply because something happens on the way to the making of the decision, even if it be a shade distinctive. What it looks to is some change in legal circumstances, which makes it proper to refer the decision to the product of the change, rather than the original source of power. There was naturally an attempt in the course of argument to determine the dividing line, but in this case it is not necessary to pursue the matter. There was here a major contract, directly affecting the administration of the hospital, which can only be regarded as made under the authority to contract given by the Ordinance. Following what we have said, we see no reason for disturbing his Honour's conclusion concerning the rejection of Berkeley's tender, namely that it was conduct under section 6 of the Act".
There is nothing in the facts of the present case which constitutes "some change in legal circumstances which makes it proper to refer the decision to the product of the change, rather than the original source of power". It was submitted that the provision of cleaning services were fundamental to the administration of a hospital and that the provision of duty free concessions were not fundamental to the administration of an airport. I am not sure that all would agree with that submission where the running of a large international airport as a commercial operation is concerned. Irrespective of whether the submission is factually correct, the contracts do directly affect the administration of the airports and provide substantial sources of revenue to the respondent for the purpose of discharging its statutory function (see Parts V and VI of the FCA Act especially section 39). The decision in Australian Capital Territory Health Authority is not relevantly distinguishable.
In my view the decisions the subject of the present application were decisions of an administrative character made under an enactment within the meaning of section 3(1) of the Act.
It is common ground that the request for reasons in each case was not made within 28 days of the notification of each decision by the respondent to the applicant.
Section 13(1) of the Act provides:
"13(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision".
Section 13(5) of the Act provides:
"13(5) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if:
(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request - the request was not made on or before the twenty- eighth day after the day on which that document was so furnished; or
(b) in any other case - the request was not made within a reasonable time after the decision was made;
and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished".
The respondent submits that the effect of sub-section 13(1) and sub-section 13(5) is to impose a time limit upon the delivery of requests for the furnishing of a statement of reasons to the 28 day period referred to in sub-section 13(5).
In Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 ALR 535, Keely J. held at 548-549:
"In my opinion s 13(1) and (5) must be read together and, so construed, s 13(5) imports into s 13(1) a requirement that the request for reasons must be made within 28 days after the day on which the decision was furnished in writing to the applicant. Accordingly, the "right" to request reasons, contained in s 13(1), expires after 28 days. Because his right to request reasons expires at the expiration of 28 days from the date on which the decision is furnished, it follows that the request can only be made "in accordance with sub-section 13(1)" - in the sense in which those words are used in s11(3)(b)(ii) - if it is made within that period. Accordingly, in my opinion the letter dated 24 November, 1981 was not capable of constituting a request for a statement "in accordance with" s 13(1) (when read with s 13(5)) because the request was not made within 28 days of the decision being furnished in writing to the applicant - namely, within 28 days from 23 March, 1981".
In Lally v. The Minister of State for Immigration and Ethnic Affairs (1984) 6 FCR 251, Northrop J. held at 255:
"Section 13 contains its own code dealing with time-limits for the giving of reasons for decisions. The time-limit contained in s 13(2) runs from the time the request is made to the person "who made the decision". That time-limit could have no application if the request under s 13(1) could be given before the decision is made. Section 13(1) contains no time-limit within which the request is to be made but a consideration of s 13(2) and par (a) of s 13(5) makes it clear that the request under s 13(1) must be made on or before the twenty-eighth day after the day on which the document in which the decision is recorded was furnished to the persons aggrieved; see Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission
(1982) 43 ALR 535. The Judicial Review Act does not empower the court to extend that time-limit of twenty-eight days. Where the decision is not recorded in a document furnished to the person aggrieved, the relevant time within which the request may be made under par (b) of s 13(5) and under s 13(6) is a "reasonable time after the decision was made".
Section 13(7) confers a separate right upon a person aggrieved. On the face of that subsection the right arises only where "a statement has been furnished in pursuance of a request under sub-section (1)". Section 13(7) can have no application to a statement furnished pursuant to a request made before a decision is made. It is for that reason that if a person aggrieved desires to obtain further and better particulars of reasons given at the time the decision is made, the person aggrieved must, after the decision has been made and reasons have been furnished, give the requisite notice under s 13(1).
The applicant has not given a notice in writing under s 13(1) within twenty-eight days or at all after each of the decisions which have been recorded in writing and set out in a document furnished to him. It follows therefore that no statement "has been furnished in pursuance of a request under sub-section (1)" to him and thus the court has no jurisdiction or power to make the orders sought in the application".
In reliance on the decisions in Ralkon Agricultural Co. and Lally, the respondent submits:
(a) The requests on 22 November, 1991 were outside the 28 day "limitation" period.
(b) Such requests were not in consequence made under subsection 13(1).
(c) The statements furnished by the respondent were not therefore furnished in pursuance of a request under subsection 13(1).
(d) As the statements furnished did not have the requisite character the Court has no jurisdiction under subsection 13(7) to grant the relief sought.
With the greatest respect to their Honours in Ralkon Agricultural Co. and Lally, I have great difficulty with the process of reasoning which leads to a conclusion that gives no effect to the requirement of notice in section 13(5). The sub-section specifically provides that if the right to refuse to provide the statement which is expressed as permissive ("may") is exercised, then, "within fourteen days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be furnished" is to be given. Counsel for the respondent submitted that there was no obligation to give a statement in response to a request out of time and that failure to give the requisite notice was nothing more than a statutory breach.
In Lally his Honour found as a fact that no request at all had been given after the relevant decision had been given. In consequence there was no request under section 13(1) of the Act because the section predicates an existing decision in respect of which a request is made. Such a conclusion is clearly correct. His Honour's observations in relation to section 13(5) operating to impose a 28 day time limit in section 13(1) are therefore obiter dicta and unnecessary for the decision to which his Honour properly came.
In Ralkon Agricultural Co., although the request was made more than 28 days after the decision, there was a refusal based on the expiration of the 28 day period (see 43 ALR at 547; the letter of 22 December, 1981 to Ralkon's solicitors). However it is clear that his Honour did not base his decision on that fact (43 ALR at 549). His Honour does not in his reasoning address the purpose of the conditions which attach to section 13(5) and the consequences of non-compliance. Although I am loathe to disagree with his Honour, the conditions in section 13(5), in my view, form part of a statutory scheme which leads to a different conclusion to that reached by his Honour and applied by Northrop J. in Lally.
The statutory scheme in section 13 of the Act is to provide in section 13(1) a statutory right to a person aggrieved by a decision to request a statement in writing of the type specified in the sub-section. The receipt of a request casts upon the recipient a statutory obligation to prepare and furnish the statement within 28 days of receipt. The recipient is only excused from discharging the obligation by the existence of the circumstances provided in sub-sections (3), (4), (4A) and (5) including where necessary the giving of requisite notices, or the taking of the requisite proceedings and obtaining the declaration of the Court.
I agree with Keely J. in Ralkon Agricultural Co. at 549 that the subject matter of entitlement dealt with by subsections (3), (4) and (4A) relates to a person's entitlement as "a person who is aggrieved" within the meaning of section 5 of the Act and not as to whether a person is entitled by reason of making a timely request.
Section 13(5) in my opinion gives the recipient an election to refuse to prepare and furnish the statement if the circumstances in paragraphs (a) and (b) exist provided that the requisite notice is given within fourteen days. If the requisite notice is not given, then the obligation imposed by section 13(2) is neither discharged nor terminated. When the notice required by section 13(5) is not given and a statement is furnished that statement is furnished in pursuance of a request under section 13(1).
This construction of section 13 can be tested against section 11 of the Act which in sub-section 3 sets out the prescribed period for the bringing of applications for an order of review.
By section 11(3)(a) the period is 28 days from the date a decision, including the relevant findings and reasons, is furnished to the applicant. The circumstances in paragraph (b) of section 11(3) deal with the situation where the notification of the original decision in writing does not contain the requisite findings or reasons. Paragraph (b)(1) deals with the provision of a statement containing the requisition material voluntarily without a request under section 13(1). Paragraph b(ii) deals with situations where a request is made under section 13(1).
Section 11(3)(b)(ii) provides that the 28 day period runs from four alternative dates. They are:
(a) The day on which the statement is furnished.
(b) The day on which the applicant is notified in accordance with section 13(3) of the opinion that the applicant was not entitled to make the request.
(c) The Court makes an order under section 13(4A) declaring that the applicant was not entitled to make the request.
(d) The applicant is notified in accordance with section 13A(3) or section 14(3) that the statement will not be furnished.
Implicit in (a) above is that time does not commence to run until the obligation to give the statement is discharged. The circumstances in (b) and (c) relate to the question of entitlement in terms of section 5 of the Act being firstly put in issue by a notice of opinion and secondly being determined adversely to the applicant by the Court. The circumstances in (d) are not presently relevant but again relate to the discharge of the obligation to furnish the statement by service of a notice or certificate as provided for in section 13A(3) or section 14(3).
If there is no existing obligation which will lead to the statement being furnished and a date established under (a) above, section 11(b)(iii) applies and the relevant date is the day on which a document setting out the terms of the decision is furnished to the applicant. The obligation to furnish a statement in resect of a request delivered after 28 days after a document in writing containing the terms of the decision was furnished to the person who made the request (section 13(5)(a)), or, in any other case a request made after the expiration of a reasonable time after the decision was made, is discharged and terminated by giving the requisite notice. When the notice is given within the fourteen day period provided in section 13(5), the relevant date for the purpose of section 11(1)(c) falls to be determined under section 11(3)(b)(iii) because there is no longer extant a request under section 13(1) which carries with it an obligation to furnish a statement.
It follows in my opinion that the reasons furnished on 23 and 24 December, 1991 by the respondent in purported pursuance of a request under section 13(1) were in fact and law so furnished. In consequence the conditions which enliven the jurisdiction under section 13(7) have been made out.
The respondent's notice of motion is dismissed with costs.
The Court orders:
1. The notice of motion is dismissed.
2. The respondent pay the applicant's costs of and incidental to the notice of motion, including reserved costs, if any, to be taxed.
The Court directs that the application be listed for further directions on a date to be fixed by the District Registrar.
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