Laing v Victoria

Case [2005] FCA 791

FEDERAL COURT OF AUSTRALIA

Laing v State of Victoria [2005] FCA 791

COURTS – Practice and Procedure - claim for declaratory relief that the respondent contravened a law of the Commonwealth and for the imposition of a penalty – applicant for relief has no standing to claim a penalty – application after the limitation period to substitute an applicant who has standing to claim a penalty – whether there has been a mistake in the name or identity of the applicant - whether the proceeding should be stayed as an abuse of process because it was issued in order to prevent possible claims becoming statute barred –whether the Court has jurisdiction in the proceeding – whether the claim for a penalty should be struck out – whether the proceeding for a declaration without consequential relief should be struck out

Workplace Relations Act 1996 (Cth) ss 83BE(1), 83BH, 298K(2)(d), 298T(2)(d) and (e), 298U
Federal Court of Australia Act 1976 (Cth) s 21
Crown Proceedings Act 1958 (Vic) ss 20 and 22
Limitations of Actions Act 1958 (Vic) s 5(5)
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Federal Court Rules O 13 r 2

Williams v Spautz (1992) 174 CLR 509 – applied
Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 – applied
Evans Constructions Co Ltd v Charrington & Co Ltd [1967] 2 QB 703 – considered
Central Insurance Co Ltd v Seacalf Shipping Corporation (The “Aiolos”) [1983] 2 Lloyd’s Rep 25 – considered
“AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385 – considered
Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 – applied
Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 – considered
Felton v Mulligan (1971) 124 CLR 367 – cited
L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 – applied
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 – cited
Onus v Alcoa of Australia Ltd (1981) 149 CLR 1 – applied
International Bulk Shipping and Services Limited v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017 – considered
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 – considered
Australian Competition and Consumer Commission v Frances [2004] FCA 487 – cited
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 – cited

Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 – considered
Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 – considered

WILLIAM LAING v STATE OF VICTORIA
VID 111 OF 2005

MERKEL J
15 JUNE 2005
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 111 OF 2005

BETWEEN:

WILLIAM LAING
APPLICANT

AND:

STATE OF VICTORIA
RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

15 JUNE 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s claim for the imposition of a penalty be…

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Laing v Victoria [2005] FCA 791
Case
[2005] FCA 791
Decision Date

CaseChat Overview and Summary

In the matter of Laing v Victoria, the parties were involved in a dispute regarding the State's refusal to invite a company, Able, to tender for a project, which allegedly contravened the Waste Reduction Act. Laing, an authorised officer, investigated the matter and sought a declaration that the State was required to provide certain documents. This application was dismissed. Laing subsequently sued the State for the alleged contravention, and the State filed a motion to strike out the application, claiming it was an abuse of process and that the Court lacked jurisdiction.

The legal issues before the Court were whether the application was an abuse of process and whether the Court had jurisdiction to hear the case. The Court found that Laing was not authorised to bring the proceeding to the extent that it sought the imposition of a penalty. The Court also determined that Laing and Hadgkiss had failed to satisfy it that the application to substitute Hadgkiss for Laing as the applicant could or should be invoked in so far as it claimed a penalty. Consequently, the Court struck out Laing's claim for the imposition of a penalty. However, the Court granted Laing and Hadgkiss' application to substitute Hadgkiss for Laing as the applicant for declaratory relief.

The Court reasoned that the proceeding, as originally formulated, was for the imposition of a penalty, but that will no longer be the case. It found that Laing remained the applicant for a penalty and that he was not authorised to claim a penalty. The Court determined that the only remaining relief sought was for a declaration that the State contravened the Waste Reduction Act. The Court ordered that Hadgkiss be substituted for Laing as the applicant for declaratory relief, effective from the date of the order, and that the respective motions of the parties be dismissed otherwise.

In summary, the Court found that Laing was not authorised to bring the proceeding to the extent that it sought the imposition of a penalty. However, it granted Laing and Hadgkiss' application to substitute Hadgkiss for Laing as the applicant for declaratory relief. The Court also dismissed the parties' motions otherwise. The final orders included striking out Laing's claim for the imposition of a penalty and substituting Hadgkiss for Laing as the applicant for declaratory relief. The parties were also required to deliver amended applications, statements of claim, and defences within specified time frames.

Orders

Orders of the court

1. The applicant’s claim for the imposition of a penalty be struck out.

2. The applicant have leave to substitute Nigel Hadgkiss for himself as the applicant for declaratory relief, which substitution is to have effect as from the date of this order.

3. The substituted applicant deliver an amended application and an amended statement of claim within 7 days.

4. The respondent deliver an amended defence within 7 days of the delivery of the amended statement of claim.

5. The respective motions of the parties dated 25 February 2005 and 15 March 2005 otherwise be dismissed.

Background

Background to the litigation

On 15 March 2005 the State filed a notice of motion seeking orders that Laing’s application to the Court be struck out. The State claims that the application is an abuse of process and that, in any event, the Court has no jurisdiction in the proceeding because it is not authorised by the WR Act. The State’s motion was also returnable on 16 March 2005.Background In order to appreciate the issues arising on the two motions, it is necessary to briefly outline the background to the present dispute. The dispute arose out of Laing’s investigation, as a member of the Taskforce and as an authorised officer with the powers conferred by s 83BH of the WR Act, into whether the State contravened s 298K(2)(d) of the WR Act by refusing to invite Able to tender for the project. Laing’s investigation commenced on or about 11 March 2003. In order to properly conduct the investigation Laing required the production of certain documents by the State, which the State refused to provide. Laing commenced a proceeding in the Court seeking a declaration that the State was required to provide him with the documents. On 23 November 2004 the proceeding was dismissed. Laing filed a notice of appeal but the appeal has not yet been determined. In the present proceeding Laing is suing the State pursuant to ss 20 and 22 of the Crown Proceedings Act 1958 (Vic), which permit civil proceedings to be taken against the Crown under the title of “the State of Victoria”. Sections 22 and 25 of that Act provide that the jurisdiction of the court hearing the proceeding, and the rights of the parties, are to be the same as if the proceeding were between subject and subject. It is common ground that s 5(5) of the Limitation of Actions Act 1958 (Vic) (“the Limitations Act”) applies to the proceeding by reason of s 79 of the Judiciary Act 1903 (Cth). Under s 5(5) an action to recover a penalty “recoverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued”. As the alleged contravention occurred, at the latest, on 7 March 2003, the period within which any proceeding for a penalty was to be commenced expired on 7 March 2005. Although the present proceeding was commenced prior to that date, Laing, as the applicant, was not entitled to bring the proceeding in so far as it sought the imposition of a penalty. The State claims that the proceeding is an abuse of process because it was commenced for the purpose of avoiding the limitation period, rather than for the purpose of obtaining the relief sought in the application. The State relies on the evidence set out in an affidavit of Craig Rawson (“Rawson”), a solicitor in the employ of the Australian Government Solicitor. Rawson’s evidence, which was filed in support of the application to substitute Hadgkiss for Laing as the applicant, was as follows:“7.Depending on the facts which may ultimately emerge it is possible that the State of Victoria made a decision to refuse to engage Able as an independent contractor on or about any or all of the following dates:7.121 February 2003 when Able were advised by the Project Manager retained by the State of Victoria that they would not be invited to tender for the Project;7.226 February 2003 when representatives of Able met with the Project Manager and were (allegedly) informed that Able had not been on the tender list because its Registration of Interest did not comply with the requirement of the Latrobe Valley Ministerial Taskforce and there was a continuing dispute regarding a previous project undertaken by Able; or7.37 March 2003 when solicitors for the State of Victoria wrote to Able’s solicitor confirming that Able would not be invited to tender for the project.8.If the State of Victoria did decide to refuse to engage Able as an independent contractor and did so because of, or for reasons that included, a reason prohibited by section 298L of the WR Act then it contravened paragraph 298K(2)(d) of the WR Act.9.If Laing is successful in obtaining the State’s documents it is likely that those documents will tend to suggest either that the State of Victoria has, or has not, contravened s 298K(2)(d). Accordingly the Taskforce does not wish to prosecute proceedings under Part XA of the WR Act until Laing has exhausted his rights to ascertain whether the provision[s] of Part XA have been complied with.10.However, for the reasons which follow, in order to protect its position in relation to proceedings against the State of Victoria under Part XA, the Taskforce is required to commence the proceeding within 2 years of the date upon which the cause of action accrued.The limitation period11.It appears that any application commenced in Victoria pursuant to section 298T of the WR Act that seeks the imposition of a penalty in respect of an alleged contravention of section 298K will be subject to the time limitation period provided by subsection 5(5) of the Limitations of Actions Act 1958 (Vic). Subsection 5(5) of that Act provides that an action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any enactment ‘shall not be brought after the expiration of two years from the date on which the cause of action accrued’. Accordingly the imminent expiration of any right to commence proceedings under s 298T requires that any such proceedings be commenced now. If the Taskforce waited until the conclusion of Laing’s investigation to decide that it does wish to commence proceedings against the State it would be statute barred from doing so.Instructions to commence these proceedings12.On 15 February 2005 I spoke to Hadgkiss. Hadgkiss told me that he had approved the commencement by Laing of proceedings on a protective basis against the State of Victoria in respect of its decision not to allow Able to tender for the project. On 16 February 2005 I spoke to Laing. Laing instructed me to commence proceedings on a protective basis pursuant to s 298T of the WR Act against the State of Victoria in respect of its failure to invite Able to tender for the project. I understood the instruction to institute proceedings on a protective basis as an instruction to institute a proceeding prior to the expiration of any possible limitation period so as to protect the Taskforce against any argument (in the event that the Taskforce does decide to prosecute such proceedings) that the expiration of such a period had removed the Taskforce’s capacity to bring such proceedings.13.By reason of subsection 298T(2) of the WR Act Hadgkiss (as a delegate of the Employment Advocate) but not Laing (as an authorised officer) has standing to commence these proceedings. Accordingly Laing was not entitled to instruct AGS (as he did on 16 February 2005) to commence these proceedings. However Hadgkiss was so entitled to instruct AGS to commence these proceedings. While Hadgkiss, in the conversation referred to [in] paragraph 12 above, did not instruct me to commence proceedings against the State of Victoria in his name, I regarded his advice to me that he had approved the commencement by Laing of such proceedings as an affirmation that he wished such proceedings to be commenced by the Taskforce. On 24 February 2005 I spoke to Hadgkiss who instructed me to seek to substitute himself or Laing as the Applicant in these proceedings, and if successful, to maintain these proceedings on a protective basis on his behalf. On 24 February 2005 I spoke to Laing who told me that he also wished me to have Hadgkiss substituted for himself as the Applicant in these proceedings.14.Although Laing and Hadgkiss have instructed us to commence these proceedings and to have Hadgkiss substituted as the Applicant, AGS is instructed to do so on a protective basis only and that neither Laing nor Hadgkiss wishes AGS to take any steps to prosecute the proceedings at this stage. Accordingly the applicant seeks an order that the proceedings should be adjourned to a date to be fixed with liberty given to the Applicant to apply for direction at some later stage. Both Laing and Hadgkiss have also instructed me to seek leave to file and serve an Amended Application in these proceedings in the form now shown to me and marked ‘CLR-7’.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MERKEL J
Finally, Laing and Hadgkiss requested that the Court adjourn the proceeding sine die to await the outcome of the Full Court appeal in relation to the production of the State’s documents. One of the oddities of the present case is that there has been no request that the Court order that the relevant documents be discovered in the present proceeding. There may be a reason for that but it is not self evident. It is correct that the proceeding, as originally formulated, was for the imposition of a penalty, but that will no longer be so. In any event, the privilege that might lead the Court not to grant discovery in the original proceeding may not have been a privilege which the State, as opposed to an individual, is able to claim. I need not finally determine that issue at this stage as I am not satisfied that it is not open to the applicant to request discovery and there therefore is no reason to adjourn the proceeding sine die in order to await the outcome of the Full Court appeal.Conclusion For the above reasons, Laing and Hadgkiss have failed to satisfy me that O 13 r 2 can, or should, be invoked to substitute Hadgkiss for Laing as the applicant in the proceeding, in so far as it claims a penalty. Thus, as Laing remains the applicant for a penalty and I am satisfied that he is not authorised to claim a penalty that claim should be struck out summarily. As the only remaining relief sought is for a declaration that the State contravened the WR Act, it is appropriate to grant Laing and Hadgkiss’ application that the Court exercise its power under O 13 r 2(2) to substitute Hadgkiss for Laing as the applicant in respect of that relief. The substitution is to be as from the date of the order and is not to be retrospective. Otherwise the motions of the parties are to be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

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