Keith and Norma McLaughlin and and Australia Pacific Airports (Melbourne) Pty Ltd

[2009] AATA 315

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 315

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0054

GENERAL ADMINISTRATIVE DIVISION		)
Re		Keith and Norma McLaughlin

Applicants

And Minister for Infrastructure, Transport, Regional Development and Local Government

Respondent

And Australia Pacific Airports (Melbourne) Pty Ltd

Joined Party

DECISION

Tribunal G. L. McDonald, Deputy President

Date6 May 2009

PlaceMelbourne

Decision The Tribunal directs the Registrar not to issue the summonses.

..............................................

Deputy President

CATCHWORDS – ADMINISTRATIVE LAW – summonses sought for jurisdictional hearing –whether summonses should be issued – whether parties had the documents described in their possession – whether summonses were relevant to the applicants’ claim that they had standing to bring the substantive action – summonses not relevant to the jurisdiction issue – summonses not issued

Administrative Appeals Act 1975 s 27

REASONS FOR DECISION

6 May 2009 G. L. McDonald, Deputy President          

1.      The applicants have applied for the issue of four summonses, two in identical terms, one pair directed to the Minister and one to the joined party.  What the Tribunal will describe as the first summons is in the following terms:

all documents and plans related to the ground transport plan being created at [the] Minister’s request

2.      The second is as follows:

all documents and plans related to future surface access in the vicinity of our land including Sunbury Road and Western Avenue Extension Freeway (Tullamarine)

3.      The issue of the summonses is contested by the Minister and the joined party.

4.      The applicants own a plot of land to the north of Melbourne airport and contiguous to it but within the zoned airport boundary.  The applicants have lodged a substantive application with the Tribunal for the review of a decision of the Minister made on 8 December 2008 to approve the Melbourne Airport Master Plan 2008 for Melbourne’s Tullamarine airport.  That application is the subject of a jurisdictional challenge by the Minister and the joined party.  The joined party operates the Melbourne airport.

The Summonses Against The Minister

5.      On behalf of the Minister, Mr Donaghue stated that the Minister had no documents of the sort described in either of the summonses directed to him.  There is no reason for the Tribunal to disbelieve this statement, and the applicants did not challenge its authenticity.  The Tribunal directs that the Registrar not to issue the summonses directed to the Minister.

The Summonses Against The Joined Party

6.      Section 27(1) of the Administrative Appeals Act 1975 (the Act) provides that a person whose interests are affected by a decision can apply to the Tribunal for review of that decision.  The Airports Act 1996 provides a general right of review for ministerial decisions except for those expressly excluded.  The decision to approve a Master Plan is not expressly excluded.  The issue for determination at the jurisdictional hearing is the scope intended to be covered by the expression ‘interests affected by [the Minister’s decision to approve the Master Plan]’ and whether that scope extends to permit administrative review by the Tribunal.

7.      The material in respect of which the issue of summonses is sort by the applicants must, in some demonstrable way, be relevant to the establishment of their claim that they have standing to bring the substantive action.  It is not relevant at this stage of the proceeding that the summonses should be seeking production of material which may be relevant if the Tribunal finds jurisdiction exists to hold a substantive hearing.

8.      The applicants have filed submissions dated 6 January,[1] 17 February and 2 March 2009, all of which address the issues they wish to agitate at the jurisdiction hearing.  Those issues are clearly identified in the submissions.  Both summonses directed to the joined party seek the production of plans and documents which may be relevant to the ultimate determination if the Tribunal finds it has jurisdiction to entertain the substantive application.  The Tribunal expressly does not determine that the summoned documents and plans are or will be relevant as that may well depend on the finding as to the scope, if any, of the Tribunal’s review jurisdiction.  To permit the issue of the summonses at this point would override the necessity of holding the preliminary hearing as to jurisdiction as it would impinge on the issue of the sufficiency of the Master Plan which is the issue to be determined, if the Tribunal finds it has jurisdiction to hear the substantive claim . To put it in colloquial terms that would be to put the cart before the horse.  Accordingly the Tribunal directs the Registrar not to issue the summonses against the joined party.

[1] Which formed part of the initial application for review.

9.      For the reasons expressed not any of the summonses sought are to be issued at this stage of the proceedings.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Grace Horzitski  Associate

Date of Hearing  1 May 2009
Date of Decision  6 May 2009
Representative for the Applicant    Mr Wilson
Counsel for the Respondent          Mr Donaghue
Solicitor for the Respondent          Australian Government Solicitor
Counsel for the Joined Party         Mr Finanzio
Solicitor for the Joined Party          Corrs Chambers Westgarth