Kevin R. Whelpton and Associates (Australia) Pty Ltd v The Attorney General of the Commonwealth of Australia

[1987] FCA 184

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CATCHWORDS

--

Judicial review - decision to grant legal aid to applicants for

relief under the Trade Practices Act 1974 - previous proceedings

for similar relief dismissed for want of prosecution - applica&

for relief ordered to pay costs - applicants impecunious and

costs unpaid - application for stay of second proceedings refused

- whether Attorney-Genedral bound to take into account the

outstanding liability for costs in determining whether to grant

legal aid - whether decision so unreasonable that no reasonable

person could have made it - whether denial of procedural

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fairness.

Administrative Decisions (Judicial Review) Act 1977, paras,

5(1)(a),(l)(e), 2(b) and (2)(g). -

Trade Practices Act 1974, S . 170

KEVIN R. WHELPTON & ASSOCIATES (AUST) PTY LIMITD and ANOR. v.

THE ATTORNEY GENEZL OF THE COMMONWEALTH OF AUSTRALIA

No. G535 of 1986

Coram: Sheppard J.

Date : 16 April 1987

Place: Sydney

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i	IN THE FEDERAL COURT OF AUSTRALIA	)
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! No. G535 of 1986

I	NJZW SOUTH WALES DISTRICT	REGISTRY	1
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GENERAL DIVISION	)
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BETWEEN:

KEVIN R. WHELPTON & ASSOCIATES

(AUST) PTY LIMITED and ANOR.

Applicants

THE ATTORNEY GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

! Respondent

!	CORAM: SHEPPARD J.
PLACE: SYDNEY
- D : 16 APRIL 1987

MINUTES OF ORDER

THE COURT ORDERS THAT:-

L T h e application be dismissed.

-- 2 . The applicants pay the respondent's costs of the application.

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

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IN THE FEDERAL COURT OF AUSTRALIA	1
)

NEW SOUTH WALES DISTRICT REGISTRY 1 No. G535 of 1986

1

DIVISION GENERAL 1

BFPWEEN :

KmrIN R. WHELPTON 6r ASSOCIATES

(AUST) PTY LIMITED and ANOR.

Applicants

9:

THE ATllORNEP GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM: SHEPPARD J.

= D : 16 APRIL 1987

REASONS FOR JUDGMENT

HIS HONOUR: This is an application to have reviewed the decision

of the Attorney-General to grant legal aid to a Mr. Donald

Cameron and a company which he controls, Camerons Unit Services Pty Limited, hereafter referred to as "the Camerons". Notice of

this application was served on the Camerons but. although Mr.

Cameron was in Court during the hearing, he said that he did not

wish to take any part in the proceedings.

The decision was made pursuant to S. 170 of the Trade

Practices Act 1974 which is as follows:-

"170 (1) A person-

(a) who has instituted, or proposes to

institute, a proceeding before the

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Commission the r Tribunal. or a

proceeding before the Court under Part VI

or section 163A;

(b) who is entitled to participate, or has

been permitted to intervene, in a

proceeding before the Commission or the

Tribunal; or

(C)	against whom a proceeding before the Court
has been instituted under Part VI or
section 163A.

may apply to the Attorney-General for a grant of

assistance under this section in respect of the

proceeding.

( 2 ) Where an application is made by a person

under sub-section (1). the Attorney-General, or

an officer of the Australian Public Service

I	authorized in writing by the Attorney-General.
may, if he is satisfied that it would involve
hardship to hat person refuse to the
application and that, in all the circumstances,
it is reasonable that the application should be
granted, authorize the grant by the Commonwealth
to the person, either unconditionally or subject to such conditions as the Attorney-General or officer determines, of such legal or financial
assistance in relation to the proceedinq as the
Attorney-General or officer determines.
(3) In this section-
(a) a reference to a proceeding before the

Commission is a reference to a proceeding -

in relation to an application for, or in

relation to the r vocation an f,

authorization; and -

(b) a reference to a proceeding before the

Tribunal is a reference to an application to the Tribunal for a declaration under sub-section 50A(1) or for a review of a

determination, or of the giving of a .

notice, by the Commission". _ _

The applicants are aggrieved persons within the meaning of

the Administrative Decisions (Judicial Review) Act 1977 ("the

Judicial Review Act") because they are respondents to proceedings

instituted in this Court by the Camerons (application No. G345 of

1986 filed in the New South Wales Registry). Those proceedings

are not the only proceedings to have been commenced by the

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i Camerons against the applicants. Proceedings claiming similar

relief were instituted in 1984 (application No. G276 of 19841.

Those proceedings involved the applicants in substantial legal

costs. On 18 July 1985, Wilcox J. ordered that the application

in matter No. G276 of 1984 be dismissed for want of prosecution,

but the order provided that the dismissal was to "be without

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I	prejudice	to	any	rights"	of	the	Camerons	"to	bring	fresh
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l proceedings or to claim the same relief in fresh proceedings".

I	His Honour ordered the Camerons	to pay	the	applicants'	costs	of
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the application and of the cross claim. These costs were

eventually taxed and allowed at the sum of $21,158.55, but the

I	certificate	of	taxation	did	not	become	available	until	20
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February 1987. The amount of the costs has not been paid.

The proceedings No. G345 of 1986 were commenced on 18 August

1986. In them the Camerons claim substantially the same relief

claimed applicants have recovered judgment against in the proceedings No. G276 of 1986. The

as was

the Cameron company in

the District Court of New South Wales for the sum of $21,560.80.

On 17 July 1986, a summons to wind up the company was filed in the Supreme Court of New South Wales on behalf of the applicants.

On 9 September 1986, a motion was filed in the Supreme Court on

behalf of the company seeking a stay of the winding-up

proceedings. The application for a stay was heard on 16

September 1986 and judgment was reserved. On 29 September 1986,

the Supreme Court made an order staying the winding-up

proceedings pending the determination of the proceedings	No. G345
of 1986 by this Court.

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In the meantime Burchett J.. on 19 September 1986, heard argument on- application for a stay of the proceedings No. G345 of

1986 and for an order that the applicants in that matter provide

security for costs. "he ground of the application was in part

the outstanding order for costs made in the applicants' favour in

the proceedings No. G276 of 1984. The costs had not then been

taxed. On 24	September	1986	Burchett	J. dismissed	both
applications.

The principal relief sought in the proceedings No. G345 of

1986, is relief against the present applicants in respect of

alleged contraventions of ss. 52 and 53 of the Trade Practices

m. The Camerons also sue the applicants for breach of

!	contract, fraudulent misrepresentation and for other causes of action to which it is unnecessary to refer. The amount involved
in the claim is some $85,000, although this amount may be
greater, in the event that the Camerons should succeed, because

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of a claim for damages for consequential losses which they allege

they suffered by reason of the destruction of what they claim to

have been a flourishing business. All these matters are in issue

between the parties and will not	be resolved until the principal
application is heard.

In passing it may be noted that the file in matter No. G345

of 1986 is now almost as bulky as that in respect of he earlier

proceedings, No. G276 of 1984. Much of this bulk comprises

interrogatories and the answers thereto. I think it is

unfortunate that the interrogatories filed in the earlier

proceedings and the answers made to them were not used in the

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later proceedings. There may have been good reason for this, but

on the face of the two files there appears to have been a

substantial mount of unnecessary duplication which an

appropriate directions hearing should have avoided.

The solicitor for the applicants first became aware that the

Camerons had been granted legal assistance pursuant to the

provisions of S. 170 of the Trade Practices Act on 18 August

1986. Their solicitor at all material times has been Mr. M.G.

!	O'Brien.
In an affidavit filed in this application he said prior to 29 September 1986, the date of the order for the stay that.

of

the winding-up proceedings, he had not taken steps to challenge

the grant of legal assistance to the Camerons because he believed

that, either the proceedings to wind up the Cameron company wouid

be successful, or the application for a stay of the application

No. G345 of 1986 in this Court would succeed. He said that he

awaited the outcome of both sets of proceedings before incurring

further expenses on his clients behalf to challenge th grant of

legal assistance. The purpose of this evidence is to meet a -

submission that the application for judicial review'is out of

time. The application in this matter was filed on 20 November

1986, some three months after the applicants' solicitor learnt	of
the decision to grant legal aid.

Mr. O'Brien said that he was unable to arrange a conference

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with senior counsel until 17 October 1986. The conference had to

be postponed to 28 October due to the unavailability of senior

counsel.

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On 21 October 1986 Mr. O'Brien telephoned a Mr. Wheeler at

the Office of the Attorney-General in Canberra and told him that

he was interested in obtaining information as to a grant of legal

aid under S. 170 of the Trade Practices Act. Mr. Wheeler said

that he would send Mr. O'Brien a pamphlet which outlined the

guidelines for aid under the section. Shortly afterwards Mr. a little later.

On 29 October 1986, Mr. O'Brien wrote to Mr. Wheeler

referring to the grant of legal aid in this matter. He

continued:-

"Mr. Cameron and his company on their own evidence

are insolvent and he commenced these proceedings

only after obtaining a grant of aid from your

Department.. Our clients are greatly prejudiced by

your decision to grant legal aid to	Mr. Cameron
for two principal reasons:-

1. If our clients are successful they have no

prospects of recovering their costs from Mr.

Cameron.

2. Mr. Cameron will continue the action

regardless of his prospects of success

knowing he has nothing to lose.

Our clients are therefore entitled under Section 5

of the Administrative Decisions (Judicial Review)

Act to apply for an order of review of your

decision but prior to that we require you,

pursuant to Section 13 of the said Act, to supply

us with a statement in writing setting out the

findings on the material questions of fact,

referring to the evidence and other material on

which those findings were based and giving the

reasons fo r the decision to grant legal aid to Mr.

Cameron and his company pursuant	to Section 170 of
the Trade Practices Act".

On 31 October 1986, Mr. O'Brien ceased to practice with the

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I firm of which he had, up to that tine. been a member. He

i commenced in practice with Messrs. Turnbull McWilliam, solicitors

of Sydney on 17 November 1986. The applicants continued to

retain him as their solicitor. On 18 November 1986 Mr. O'Brien

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I	wrote to Mr. Wheeler informing him of the change of firms. On	21
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November 1986, Mr. Wheeler wrote to Messrs. Turnbull McWilliam in

reply to Mr. O'Brien's letters of 29 October and 18 November.

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!	Mr. Wheeler said:-
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"Applications for financial assistance, which

I	include applications under S. 170 Trade Practices
Act, are dealt with on a confidential basis.
Decisions have to take into account the financial and domestic circumstances of applicants and the nature and merits of their case.
In order to make a proper determination it is
necessary that absolute confidentiality exist
between an applicant and the Department.
Without such confidentiality in respect of
information supplied and of the assessments of
hardship and reasonableness that are made, the
present administration of financial assistance
schemes would not be possible. - .
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I consider therefore under S. 13A that I am not
required to disclose the type of information that you seek".

As mentioned, the application in the present proceedings was

filed on 20 November 1986. The following day Mr. O'Brien wrote

again to the Attorney-General saying that the application for an

order of review related to a grant of legal aid to the Camerons

pursuant to s.170 of the Trade Practices Act. Mr. O'Brien said

that, pursuant to Order 54. rule 3 of the Rules of this Court,

the applicants were obliged to serve with their application a

statement of the terms of the decision. the subject of the

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application. He said that he did not have a copy of the

statement and asked that the Attorney let him have a copy or

otherwise file a copy in the proceedings. Mr. Wheeler wrote on

23 December 1986 saying that the matter had been referred to the

Australian Government Solicitor.

. At one stage it seemed that there would need to be argument

concerning the Attorney-General's contention that this was a

matter which fell within S. 13A of the Judicial Review Act, so

that he was not required to produce certain documents and

statements which the solicitor f r the applicants had sought both

by direct request and by the service of an appropriate subpoena

on the Attorney-General. The need for this argument disappeared

because the parties reached a sensible understanding which

involved Mr. Wheeler making an affidavit and thus exposing

himself to cross-examination. It emerged that Mr. Wheeler was

the officer who had made the decision to grant legal aid, he

being an authorized officer for this purpose.

Before I come to Mr. Wheeler's affidavit and oral evidence, I

should make reference to the pamphlet referred to in Mr.

O'Brien's evidence. The pamphlet sets out the guidelines upon

which the Attorney-General proceeds in dealing with applications

under S. 170 of the Trade Practices Act. The guidelines apply, not only to trade practices cases, but also to cases arising

under a number of other Acts. Guideline No. 4 provides that it

is a condition of the xercise of discretion that he

Attorney-General be satisfied in regard to hardship and

reasonableness. It goes on to say that, if he is so satisfied,

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the exercise of the discretion is unfettered and "accordingly,

each case must be determined on its own merits and all relevant

circumstances must be taken into account".

The guidelines indicate what is meant by "hardship" and

"reasonableness". In guideline No. 8 it is said that, in

determining whether it is reasonable to provide assistance,

I	regard is had, amongst other things, to the prospects of success,
the nature and extent of the benefit or detriment that may accrue
to the applicant, the availability of legal aid generally and the
benefit to the public or any section of the . - public. The Attorney
may decline to grant assistance if it is available from another source and there is no element of public interest in the proceedings.

In his affidavit which was sworn on 24 February 1987 Mr.

I	Wheeler
said application for financial assistance made by the Camerons. that he considered and decided to grant the

He

said the application had been made by an application received in

the Australian Legal Aid Office in April 1985. When Mr. Wheeler

made the decision to grant assistance, he was aware of the orders

made by Wilcox J. on 18 July 1995. He said that he considered

that the Camerons' case had reasonable prospects of success and

the fact that their earlier case had been dismissed for want of

prosecution confirmed to him that they did not have adequate

funds to continue the litigation. It may be noted at this point

that. in the course of the hearing of the application to dismiss

the proceedings No. G276 of 1984 for want of prosecution. Wilcox

J. was informed of the pending application for legal aid which

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the Camerons had made.

In his oral evidence Mr. Wheeler said that his decision to

grant financial assistance was made on 7 July 1986. He was

referred to the fact that Mr. O'Brien did not learn of the

decision until 18 August 1986. and to the fact that the present

application was filed on 20 November 1986. He was asked whether

any moneys had been expended by the Commonwealth or in legal

costs incurred by the Camerons in the conduct f the proceedings.

He said that he authorized payment of just under	$5.900 (in fact
$5,886.70) on 20 November 1986.

In the course of his cross examination Mr. Wheeler said that

it was a term of the grant of legal aid in cases which were

likely to have "a money result", that the applicant for leqal aid

refund all moneys paid out. He said the way that legal aid was

granted was that the applicant was granted a sum which in effect

he paid to his solicitor. The matter was dealt with in this way

so that it would be clear that he applicant himself incurred the

costs and was entitled to the benefit himself of any costs order

made in the proceedings against the other party. Mr. Wheeler

said that. if the Camerons were unsuccessful in the proceedings.

the Attorney-General would not be obliged to meet any order for

costs made against the Camerons in favour of the present

applicants. He said that that was how the scheme provided for in

S. 170 of the Trade Practices Act had always operated.

Mr. Wheeler confirmed that he was aware, when he made his

decision, of Wilcox J.'s decision of 18 July 1985. He did not -

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remember reading a copy of his Honour's judgment, but he was

aware that the earlier application had been dismissed for want of

prosecution and that the Camerons had to pay the present

applicants' costs of those proceedings. He said that he was not

aware of the amount of those costs, but had subsequently learnt of the' amount of the figure at -

which the costs had been taxed.

Mr. Wheeler's evidence continued:-

"Now. when you made your decision to grant aid to

Mr. Cameron did you in the exercise of your

decision-making processes, consider the financial

cost to the Whelpton interests in the litigation?

---Only in the sense that I made several inquiries

to see if Mr. Whelpton and his company were worth

powder and shot.

Would it be fair to say that you wanted to make

sure that they had money to pay the verdict rather

than how	much money they were owed by	Mr. Cameron?
---Yes.

At the time that that decision was made you did not feel it necessary to make inquiries of either the Whelptons or the court to ascertain how much

the taxed costs would be? ---Correct. I was

concerned with the decision of Wilcox J., as to

whether it purported to be a dismissal on the

merits. When I knew it was not a dismissal on the

merits I did not inquire further into it".

Mr. Wheeler was referred to the words, "in all the

circumstances", in S . 170 of the Trade Practices Act. He was

asked whether he referred only to the Camerons' circumstances and

the answer was, "other than whether they were worth suing, correct". present applicants' circumstances. Mr. Wheeler's

not to

Mr. Wheeler said that he thought no further about the applicants'

position and considered that the reference to "hardship" in the

guidelines was hardship imposed on the Camerons and not on the

applicants.

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Mr. Wheeler was asked questions about the payment of the

amount of almost $6,000 towards the Camerons' costs. He said

that if the decision to grant legal aid were set aside, he did

not envisage that there would be any thought of recovery

proceedings being instituted against the Camerons by the

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Attorney-General.

Mr. Nheeler said that if his decision were set aside, the

matter would be considered afresh. The Camerons would be invited

to say what their then current financial circumstances were and,

"because of Mr. Whelpton and his team's specific interest in the

matter they would be invited to put in whatever they wanted to

say about the financial implications PIUS their comments on the

merits and state of the case". Mr. Wheeler was asked why that

I had not been done before. He said. "because in dealing with

applications for assistance the application is looked at from the

point of view of the applicant". There followed a lengthy

discussion between Mr. Wheeler and myself concerning the

appropriateness of this as a general rule. That discussion is

not, I think, relevant for the outcome of this case, but it

raises, in my opinion, serious questions about the administration

of legal

aid infrequently discussed amongst judges because of their perception in the community, questions which are not

that litigation in which one r more of the parties has legal aid

sometimes involves very. lengthy hearings and a marked unwillingness on the part of legally aided parties to consider

offers of settlement. .

I come now to deal with the questions which arise for

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decision in this application. The first question is whether the application was made within a reasonable time; see sub-sec. 11(4)

of the Judicial Review Act. The case is not one for which there

is a prescribed period within which an application for review is

to be made; see sub-sec. 11(3). I do not think that the time

taken, that is three months from the date when the applicants'

solicitor became aware of the making of the decision is unduly

long. Especially is that so when there is taken into account - the

various matters mentioned in Mr. O'Brien's evidence which I

accept. There is the matter of possible prejudice because of the

payment of portion of the Camerons' costs on 20 November 1986.

But the overall effect of Mr. Wheeler's evidence is that no

prejudice would be suffered if the decision to grant legal aid

were quashed. The sum would not be sought from the Camerons and

would be written off. In any event, the matter, so far as the

order of this Court is concerned, would be overcome by

specifying, in the order of the Court, that the decision be

quashed or set aside with effect from a date after 20 November

1986. That would protect the money already paid: see para.

16(l)(a) of the Judicial Review Act.

In the result I am satisfied that the application was brought

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within a reasonable time and that	I	ought not to refuse to
entertain it.

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I turn then to the matters of substance which are in issue.

The principal submission made on behalf of the applicants is

based upon paras. 5(l)(e) and (2)(b) of the Judicial Review Act.

In short it was submitted that Mr. Wheeler had failed to take a

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relevant consideration into account in arriving at his decision

to grant legal aid. The relevant consideration relied upon

consists of the following collection of circumstances viewed as a

whole. The prosecution and the costs ordered to be paid by the Camerons to	earlier	proceedings	were	dismissed	for	want	of
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the present applicants had not been paid or provided for. The

amount of the costs was not ascertained at the time the decision

was made, but it should have been clear to Mr. Wheeler that the

amount would be substantial. The result is that, not only will

the present applicants be unable to recover costs against the

Camerons in these proceedings, in the event that the applicants

are successful; they will remain unable to recover the costs which the Camerons have already been ordered to pay as well.

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They are thus in a substantially worse position than that usually

faced by a party whose adversary is legally aided. They face the

prospect, in the event of their being successful, of having to

pay the entirety of their own costs, not in one proceeding but in

two. The applicants contend that Mr. Wheeler was bound to take

all those matters into account when reaching his decision. It is

plain that he did not.

In addition to submitting that they were entitled to relief

on this basis, counsel for the applicants also submitted that the

decision arrived at was one which was so unreasonable that no

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reasonable person could have so exercised his decision-making

power; paras. 5(l)(e) and (2)(q) of the Judicial Review A A . In

written submissions lodged on 10 March 1987, after I had reserved

my decision, counsel for the applicants also relied on a breach

of the rules of natural justice, really a failure to accord the

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applicants procedural fairness, in that Mr. Wheeler had not

sought the applicants'-submissions on the application after he

knew that the Camerons had failed to prosecute the earlier

proceedings and had been ordered to pay the appllicants' costs of

those proceedings; see para. 5(l)(a) of the Judicial Review Act.

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The circumstances in which a failure to take into account relevant consideration may be successfully relied upon by an a

applicant for judicial review were the subject of recent

discussion in Minister for Aborisinal Affairs v. Peko-Wallsend

Limited (1986) 60 A.L.J.R. 560. In summary, the applicable

principles, in relation to a case such as this, are:-

(a) The ground will only be made out if the decision-maker fails

to take into account a consideration which he is bound by law

to take into account in making the decision.

(b) The factors a decision-maker is bound to consider are

determined by the construction of the statute conferring the

discretion. the statute If expressly tates he

considerations to be taken into account, it will often be

necessary for the Court to decide whether those enumerated

factors are exhaustive or merely inclusive.

(c)

If the relevant factors (i.e. those the decision-maker is

bound to consider) are not expressly stated, they must be

determined by implication from the subject matter, scope and-

purpose of the Act.

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(d)	The limited role of the Court reviewing the exercise of an administrative discretion must constantly be borne in mind.
It is not the function of the Court to substitute its own

decision f o r that of the administrator by exercising the discretion which the legislature has vested in him.

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The above is a summary of some of the principles stated by Mason

J. (as he was) in the Peko-Wallsend case; see pp. 565-566.

The relevant provisions of S. 170 of the Trade Practices Act

empower the grant of legal aid if the Attorney-General, or an

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officer he has authorized in writing, is satisfied that it would

involve hardship to the applicant o refuse the application. and

that, in all the circumstances, it is reasonable that the

application should be granted. Nothing arises in relation to the

question of hardship. That matter is not in contest. What is

submitted by counsel for the applicants, however, is that the

words "in all the circumstances" required Mr. Wheeler to take

into account the fact that earlier proceedings brought by the

Camerons had been dismissed for want of prosecution and, most

importantly, that the Camerons had been ordered to pay the

present applicants' costs of them. In short, the submission

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which was made was that, unless these matters were taken into

account by Mr. Wheeler. he had not considered all the matters

which he was required to consider in order to determine whether

it was reasonable that the application should be granted, that is

he had not considered "all the circumstances".

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In support of his submission, counsel for the applicants

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relied upon the decision at first instance and in the Court of

Appeal in England in Upsons Limited v. E. Robins Limited C19563 1

Q.B. 131. That was not a case of the xercise of an

administrative discretion but the exercise by a County Court

Judge of jurisdiction under landlord and tennant- legislation

which empowered the Court to make an order for the grant of a new

tenancy. The tenancy was required to be one which was determined

by the Court "to be reasonable in all the circumstances". As I

read the judgments in the Court of Appeal, they were concerned

only with the question whether the Judge at first instance was

empowered or entitled to take into account grounds of opposition

advanced by the landlords in relation to the claim made by the

tenant as to the duration of the new tenancy. It is true that

there is a passage in the judgment at first instance which refers

to the Court being bound to take such a matter into account, but

this was not a matter referred to in the Court of Appeal. For

that reason, and also because the construction of a different

statute is involved, I have not found the case helpful in the

determination of the present problem.

Mr. Wheeler, in the course of his evidence, made it clear

that it was not the practice to consult, or to seek submissions

from, the other party to litigation or projected litigation whe

an application for legal aid was made. It was to the

circumstances of the applicant that regard alone was had. Mr.

Wheeler referred to difficulties which would otherwise arise in

relation to communicated to the Attorney-General in relation to such matters of confidence which are frequently

an

application. This case is not a case of that more usual kind. I

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am not called upon to decide whether the Attorney' S p actice in a

more usual situation is in accordance with what the section _ -

requires or not. What makes this case different is the

termination of the earlier proceedings and the making of the

order for costs which. in the events which have happened, the

applicants will be unlikely to recover unless they are able to deduct the amount of their entitlement under the order from any

amount which the Camerons may recover from them in proceedings

No. G345 of successful in defeating the Camerons' 1986. As I have said. if the applicants are

claim, they will not only

fail to recover the costs awarded to them in the current

proceedings, but also the costs already awarded to them in the

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former proceedings.

So the question is whether this was a matter which Mr.

Wheeler was bound to take into account because it was a

circumstance falling within the words "in all the circumstances"

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in sub-sec. 170(2). I confess that I have not found the question

free from diffichty. On the one hand, the application is made

ex parte to the Attorney-General; notice of it is not required to

be given to the other party to the proceedings. In those

circumstances there is much to be said f&f the view that it is

the circumstances of the applicant for legal aid to which the

section refers. On the other hand, the expression which is used

is a general one and the question which the Attorney-General has

to decide is whether it is reasonable that the application should

be granted. This in turn raises further questions. To whom. or

in what interest, must the application be reasonable. Plainly

enough it is necessary to consider whether to grant the

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application would be reasonable or unreasonable from an

applicant’s point of view. Furthermore, the section being

included in an Act, a major purpose of which is to protect the

!	public interest, it would appear that the Attorney-General is
required to
consider unreasonable to grant the application from the point of view of whether it would be reasonable or

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the public interest. What the present applicants seek, however,

the application be tested reasonableness or otherwise of granting the

is that

against their own circumstances,

particularly the fact that they are unlikely to be paid the

amount of the order for costs to the benefit of which they are

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entitled.

There are some situations in which a decision-maker. upon

whom is conferred a wide discretion, may decide what

circumstances he will take into account, and what he will omit

from account. This was a matter referred to by Deane J. (when a

Judge of this Court) in his judgment at first instance in

Investments Ptv Limited v. MacKellar (1981) 38 A.L.R. 363.

Investments was approved by the High Court in the Peko-Wallsend

case. In relation to this matter his Honour said, in the context

of the legislation there under consideration, that the particular

considerations which were to be taken into account and the

respective weight to be given to them was, to no small extent, a

matter for the Permanent Head of the Department of Health and, on

review, the Minister (pp. 373-4). His Honour also said that the

presence of the ground in the Judicial Review Act did not mean

that a party affected by a decision was entitled to make an

exhaustive list of all the matters which the decision-maker might

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conceivably regard as relevant and then attack the decision on

the ground that a particular one of them was not specifically

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taken into account ( p . 375). The legislation which Deane J. had

to consider was S. 40AA of the National Health Act 1953. The

relevant part of the section in its then form provided that the

Permanent Head should, in determining the scale of fees in

relation to a nursing home, have regard to “costs necessarily

incurred in providing nursing home care in the nursing home”.

Plainly enough, this provision entitled the Permanent Head to

take into account other matters relevant to the determination of

a scale of fees, provided he did have regard to “costs

necessarily incurred“.

Because of the difference in the legislation the decision in

Sean Investments is not of direct help, but a consideration of it

serves to underline the question which I think arises here for

determination. Are intended to compel the decision-maker to take into account every the words, “in all the circumstances“,

conceivably relevant circumstance before he arrives at his

decision; or are they intended rather to indicate that he is to

have a very wide discretion so that he may have regard to some

circumstances and disregard others, notwithstanding that it would

be open to him to have regard to them if he wished. In other

words, is it for the decision-maker to determine what

circumstances he will take into account and what he will omit, or

is he subject to the supervision of the Court in his selection of

all of them. I do not think that the answer to this question can

be straight forward. Questions of degree become involved. I

think the better view is that, in some cases, a circumstance will

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be seen to have such a direct bearing on the outcome of the

decision. that it will be something the decision-maker is bound

by law to take into account. Other cases will not fall into that

category. In such cases it will be for the decision-maker to

reach his own conclusion on the relevance, not weight, to be

attributed to the particular circumstances upon which a party has

relied. He will be the judge of what is, and what is not,

relevant. In my opinion, it is into this latter category that

this case falls. The circumstances relied upon by the present

applicants are a matter which Mr. Wheeler, if he had chosen to do

s o , could have taken into account; but they are not a matter

which he was required to take. into account. It was a matter for

him whether he took them into account or not. It follows that I

am of opinion that the applicants' first submission must fail.

I do not regard this as a case in which Mr. Wheeler's

decision was so unreasonable that the jurisdiction of the Court

in this regard has been attracted. The second submission is,

rejected. - also therefore,

That leaves procedural fairness. I put aside the question

whether there may not be circumstances in which the

Attorney-General, or a person authorized by him, is bound to

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accord procedural fairness when dealing with an application under

S. 170 of the Trade Practices Act. In this case Mr. Wheeler did

not fail to accord the applicants procedural fairness because he

drew no adverse conclusion against them. All he did was to

determine that the Camerons had a reasonable chance of succeeding

in their c1aim:and were in need of financial assistance to

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prosecute it. circumstances into account He did not ake the present applicants'

nor consider their position at all in

reaching his decision. That indeed is the principal complaint

which the applicants make.	In	those circumstances the third
submission must also fail.

In the result the application is dismissed with costs.

Mr Justice Sheppard. Le

Counsel for applicant:	Mr. D.L. Warren
Solicitors for applicant:	Turnbull McWilliam
Counsel for respondent:	Mr. G. Hosking
Solicitors for respondent:	Australian Government Solicitor
Date of hearing:	24 February 1987

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