Kirk v Garbutt

[2004] VSC 51

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8726 of 2003

PAUL JAMES KIRK	Plaintiff
v
SHERRYL GARBUTT	Defendant

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JUDGE:	THE CHIEF JUSTICE
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 December 2003
DATE OF JUDGMENT:	19 February 2004
CASE MAY BE CITED AS:	Kirk v Garbutt
MEDIUM NEUTRAL CITATION:	[2003] VSC 51

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INJUNCTION – Balance of convenience – Whether serious issue to be tried – Interlocutory declaration against the Crown.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant

HER HONOUR:

1. The plaintiffs seek judicial review of an order by the Governor-in-Council made on 5 November 2003 appointing the second defendant, Mr O'Shea, as administrator of the eighth plaintiff State-wide Autistic Services Incorporated, hereafter referred to as SASI.

1. The latter is a community based organisation that provides services for autistic children and adults and their families.  It has done so for over 35 years in Victoria.  It has an annual operating budget of over $4 million and employs approximately 120 staff.

1. SASI was a contracted service provider under the Intellectually Disabled Persons Services Act 1986 hereafter referred to as the Act.  The order was made by the Governor-in-Council pursuant to s.25(1)(1) of the Act.  Its effect was to deem Mr O'Shea to be the Committee of Management of SASI and to vest in him all the powers and duties of the Committee of Management.  As a consequence of the order, pursuant to s.25(4) of the Act the members of the Committee of Management of SASI otherwise ceased to hold office.

1. The making of the order by the Governor-in-Council followed complaints by members of the committee of SASI to the Department.  As a consequence the Department conducted an audit of SASI.  The findings of the audit are essentially contained in the affidavit of Mr O'Neill sworn 7 November 2003, see in particular paragraph 12.

1. The plaintiffs seek interlocutory orders tantamount to restraining Mr O'Shea from acting as administrator pursuant to his appointment by the Governor-in-Council and from preventing the Minister and the State from taking various steps, including the step of preventing the first to seventh plaintiffs from acting as the Committee of Management of SASI.

1. The matters about which the court must be satisfied before determining to grant the interlocutory relief sought are well known.  Turning first to the matter of whether there is a serious question to be tried the plaintiffs assert that the Minister did not make the necessary conclusion under the statute which, it is said, is a pre-condition to the making of a recommendation and ultimately culminating in the order of the Governor-in-Council.  Certainly it can be said that the Minister did not use or adopt the precise terms of s.25(1)A when declaring herself of the opinion that SASI had been inefficiently and incompetently managed.  However, in my view, consideration of the material before the court reveals that it was clear that the Minister's opinion, so far as present purposes require me to determine the matter, related to the current management of SASI.

1. The plaintiffs complained also that the Minister failed to consider objections lodged by them and that, as a consequence, the pre-condition imposed by s.25(3)B of the Act has not been met.  The Minister was criticised for relying upon departmental analysis of the matter.  It is well established that reliance on the departmental analysis of relevant materials is not an impermissible delegation of a ministerial function, see Peko Wallsend (1986) 162 CLR 24 at 31. In essence it seems that the Minister relied upon the report of Mr Allen.

1. It does not appear, for present purposes, to me that there was anything untoward or inappropriate in the Minister's reliance.  Nevertheless it is apparent, for present purposes, from the material before me, that the Minister had before her a copy of the response of SASI to each of the matters raised by Mr Allen and that the Minister considered those matters in determining as she did.

1. The plaintiffs complained further that they were denied procedural fairness in that the decision of the Minister was based on reports that were not shown to the plaintiff.  It seems to me on the basis of the material before me that the complaint is not made out for present purposes.  It appears for present purposes that SASI had the appropriate opportunity.

1. Additional complaints are made by the plaintiffs that the decision was vitiated by bias, by pre-judgment.  It is difficult for the plaintiffs to make out this complaint.  Section 25(3) requires the Minister to give notice but such notice is given after the Minister has formed the intention to make a recommendation based on the opinion set out in s.25(1) of the Act.  It seems to me that this ground cannot be made out for present purposes.  Further complaint is made by the plaintiffs that the Minister failed to take into account relevant considerations.  In light of the material of Mr O'Shea, the plaintiffs in my view here have difficulty in making out that complaint also.

1. The case of the plaintiffs in the circumstances may well be weak, although I only deal with the matter on an interlocutory basis.  There is also the additional matter that in effect the plaintiffs seek an interlocutory declaration against the Crown.  This of itself is fraught with difficulties because there are aspects of the relief that are final in nature.  By convention such an order might not be granted, rather the matter put over to trial, see Inland Revenue Commissioners v. Rossminster 1980 AC 952 at 1027. However this issue was not one that was effectively pressed on behalf of the defendants in argument, although generally adverted to.

1. Nonetheless, even assuming that the plaintiffs had made out a serious question to be tried and of which I would need to be satisfied for the purposes of the present application, there is the matter of the balance of convenience.  I have given careful consideration in the course of considering the matter to this aspect.

1. Ultimately I conclude that I cannot be satisfied that the administration will have an adverse effect upon SASI.  On the material before me I could not be satisfied that there is any incompetence or lack of appropriate experience on the part of the administrator.  Significantly the administrator is fully accountable in the usual way.

1. There is a further factor that weighs in the exercise of determining the balance of convenience in this matter, it is this: the preceding. I am informed, it is in the nature of one that would take approximately one day to argue at trial.  As events have transpired the court is in a position to accommodate the parties for a hearing in the latter part of January or if needs be in early February.

1. Weighing all these matters up therefore I am not satisfied that the balance of convenience weighs in favour of the plaintiff, accordingly the application is refused for present purposes.

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