Lloyd v Costigan

Case [1983] FCA 179

Re: PETER HUGH LLOYD
And: FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES
OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION (1983) 77 FLR 294
No. WAG 50 of 1982
Administrative Law - Crown

COURT

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)
CATCHWORDS

Administrative Law - judicial review - decision by Royal Commissioner to call applicant to give evidence - issue of subpoenas - whether a decision to which Judicial Review Act applies - whether a decision made under an enactment - issue of letters patent pursuant to royal prerogative or Royal Commissions Act - whether step preparatory to report may be a decision - Commissioner's terms of reference - whether questions proposed to be asked are within terms of reference - order forbidding publication of reference to person - motion to set aside subpoena to Commissioner to produce documents - admissibility of statement pursuant to s.13(1) of Judicial Review Act made without prejudice - application to amend and add grounds introducing question of bona fides of respondent

Administrative Decisions (Judicial Review) Act 1977, ss. 3(1), 3(3), 5, 6, 13(1), 13(11)

Royal Commissions Act 1902 (Comm) ss. 1A, 6, 6H

Federal Court of Australia Act 1976 s.50

Crown - Administrative Decisions (Judicial Review) Act 1977 (Cth) - "Decision" within Act - Whether decision made under enactment - Decision by Royal Commissioner to subpoena witness and examine under oath - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(1), 13 - Royal Commissions Act 1902 (Cth), ss 1A, 6.

Crown - Administrative Decisions (Judicial Review) Act 1977 (Cth) - Royal Commissioner determining to call witness and examine under oath - Whether conduct engaged in for the purpose of making decision capable of being judicially reviewed - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6 - Royal Commissions Act 1902 (Cth), ss 1A, 6.

Crown - Royal Commissions - Powers of Royal Commissioner - Summonsing witness and proposing to question on oath - Judicial review of decision to investigate - Whether decision within scope of inquiry.

HEADNOTE

Held: (1) The decision of a Royal Commissioner requiring a person to attend as a witness and give evidence pursuant to the issue of a subpoena is a decision of an administrative character made under the Royal Commissions Act 1902 and the letters patent authorised and issued thereunder. It is therefore a decision made under an enactment in the sense it was made in exercise of the power conferred by the Act and is capable of being reviewed under the Administrative Decisions (Judicial Review) Act 1977.

Australian National University v Burns (1982) 64 FLR 166, applied.

(2) Alternatively, the decision is one to exercise the coercive powers vested by the Royal Commissions Act 1902, s 6 and hence a decision made under an enactment.

(3) Further the decision is conduct engaged in for the purpose of making a decision of an administrative character under an enactment and in that respect is subject to the

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Details
AGLC
Lloyd, Peter Hugh v Costigan, Francis Zavier Esquire QC. Royal Commission on the Activties of the Federated Ship Painters & Dockers Union [1983] FCA 179 ((1983) 77 FLR 294)
Case
[1983] FCA 179
Decision Date

CaseChat Overview and Summary

In the case of Lloyd v Costigan, the applicant sought judicial review of a decision by a Royal Commissioner to call the applicant to give evidence and to issue subpoenas. The applicant argued that the decision to call him to give evidence and to issue subpoenas was a decision to which the Judicial Review Act applied, and that it was a decision made under an enactment. The respondent argued that the decision was not a decision to which the Act applied, and that it was not a decision made under an enactment.

The court held that the decision to call the applicant to give evidence and to issue subpoenas was a decision to which the Judicial Review Act applied, and that it was a decision made under an enactment. The court found that the decision to call the applicant to give evidence and to issue subpoenas was a step preparatory to the report that the Royal Commissioner was required to make, and that it was therefore a decision made under an enactment. The court also held that the questions proposed to be asked were within the terms of reference of the Royal Commissioner.

The court dismissed the applicant's application and granted the respondent leave to apply for the costs of the application. The court found that the order forbidding publication of reference to the person was not a decision to which the Judicial Review Act applied, and that the motion to set aside the subpoena to the Commissioner to produce documents was an application to which the Act applied. The court held that the statement made without prejudice was inadmissible pursuant to s.13(1) of the Judicial Review Act, and that the application to amend and add grounds introducing the question of the bona fides of the respondent was not permissible.

Orders

Orders of the court

1. The application dated 9 December 1982 be dismissed.

2. The respondent have leave to apply for the costs of the application.

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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