Lord Howe Island First Peoples Association and Australian Pesticides and Veterinary Medicines Authority
[2017] AATA 2565
•6 December 2017
Lord Howe Island First Peoples Association and Australian Pesticides and Veterinary Medicines Authority [2017] AATA 2565 (6 December 2017)
Division:GENERAL DIVISION
File Number: 2017/5762
Re:Lord Howe Island First Peoples Association
APPLICANT
Australian Pesticides and Veterinary Medicines AuthorityAnd
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:6 December 2017
Place:Sydney
The application for review is dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
.........................[sgd]...............................................
Mrs J C Kelly, Senior Member
Catchwords
PRACTICE AND PROCEDURE – dismissal application – surrender of permit that is the subject of application – whether Respondent prevented from making the application – whether the permit was surrendered by written notification by the holder of the permit – whether the proceedings are frivolous, vexatious, misconceived or lacking in substance – whether costs should be awarded – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 42B, 43
Agricultural and Veterinary Chemicals Code Act 1994 (Cth), ss 112, 115, 117, 167
Lord Howe Island Act 1953, s 14
CASES
Allan v Development Allowance Authority and Another (1999) 56 ALD 418
Dawson v Westpac Banking Corporation (1991) HCA 52; (1991) 104 ALR 295
MacNeall and Civil Aviation Safety Authority [2016] AATA 209
McLean Bros & Rigg Ltd v James Grice and Another (1906) 4 CLR 835
Nutshack Franchise Pty Ltd and Others v Smith and Another Matter No. IRC 6593 of 1998
PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 39 ALD 339
Re Filsell and Comcare (2009) 109 ALD 198Re Williams and Australian Electoral Commission (1995) 38 ALD 366
SECONDARY MATERIALS
Administrative Appeals Regulation 2015 (Cth)
Practice Direction, Lodgement of Documents under Section 37 and 38AA of the AAT Act
Practice Direction, General Practice Direction
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
6 December 2017
The application before the Tribunal
The Respondent, the Australian Pesticides and Veterinary Medicines Authority, has applied to the Tribunal for the dismissal of the application made by the Applicant, the Lord Howe Island First People’s Association, for the review of the Respondent’s decision to issue a permit to the Lord Howe Island Board (the Board) to use a chemical to eradicate the black rat and house mouse from the Island (the review application).
The application for dismissal is made pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Respondent claims that the Board surrendered the permit on 1 November 2017 and that the proceedings are now frivolous, vexatious and lacking in substance.
The law
Section 42B(1) of the AAT provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The issues
The issues that arise for the Tribunal’s consideration are:
(a)Is the Respondent prevented from making the application for dismissal when it has not complied with a direction of the Tribunal to lodge documents pursuant to s 37 of the AAT Act by 3 November 2017?
(b)Was the permit surrendered by a written notification signed by the holder of the permit?
(c)Are the proceedings frivolous, vexatious , misconceived or lacking in substance?
(d)Should costs be awarded?
Background
The Respondent, by an officer, issued the Minor Use Permit PER82744 (the permit) to the Board on 1 September 2017, valid from 31 August 2017 to 31 August 2020, pursuant to s 112 of the Agricultural and Veterinary Chemicals Code Act 1994 (the AGVET Code). On 26 September 2017, the Applicant applied to the Tribunal for review of that decision pursuant to s 167(1)(m) of the AGVET Code.
On 27 October 2017, the Tribunal made orders by consent to extend the time within which the Respondent was to lodge documents pursuant to s 37 of the AAT Act, until 3 November 2017, and vacated the telephone conference to be re-listed “no earlier than 24 November 2017”.
On 1 November 2017, the Chief Executive Officer of the Board (the CEO) wrote to the Respondent. Relevantly she stated:
·On that day, the Board had received a letter from the Respondent addressed to the Chair of the Board regarding the permit.
·“As this is an operational matter, I am responding as the Chief Executive Officer of the Board”.
·The CEO understood from the letter that the Respondent had formed the view that the permit “was attended by technical issues”.
·The Board did not “wish there to be any question about the validity” of the permit.
·Based on the Respondent’s advice “it would appear that surrendering the permit and applying for a new permit is the best course of action for the Board”.
·“Accordingly I write to give notice to the APVMA that the holder of Permit 82744, the Lord Howe Island Board, hereby surrenders Permit 82744”.
·“The Board will shortly be submitting an application for a new permit, and wishes the applicant, once submitted, to be dealt with expeditiously, so that the project will proceed in winter 2018”.
The CEO signed the letter. The letter indicates that a copy was sent to the Chair of the Board.
Also on 1 November 2017, the Respondent’s legal representative wrote to the Applicant advising that the Board had surrendered the permit pursuant to s 117 of the AGVET Code. The legal representative wrote:
… The effect of surrendering the permit is that it is rendered entirely inoperative – it is ‘no longer in force’.
Request for withdrawal of the application
As the permit in question is no longer in force, it seems to us that there is no need for this Tribunal review to proceed. The matter can be dismissed if you simply write to the Tribunal by email … with words to the effect of:
I wish to withdraw Application 2017/5762 on behalf of the (Applicant. I note that, as the permit which is the subject of the challenge has been surrendered and is no longer in effect, the Association has been substantially successful in its review.
The final sentence should secure a partial refund of the Tribunal application fee the Association paid when making the application for review. You are welcome to supply a copy of this letter to the Tribunal in support of the process.
We note that the APVMA’s deadline for lodging documents with the Tribunal is 3 November 2017 and that to meet this deadline it would have to post these documents to you tomorrow evening. We therefore request that in order to avoid unnecessary expense you write to the Tribunal today please. If you do contact the Tribunal would you also please copy us in at … If you do not intend to contact the Tribunal please let us know at the earliest opportunity.
On 2 November 2017, the Respondent’s legal representative wrote to the Tribunal. The writer referred to the s 37 documents being due for lodgement on 3 November 2017 and advised the Tribunal that the permit had been surrendered on 1 November 2017 with the consequence that it “is rendered entirely inoperative. In the language of the Agvet Code, the Permit is no longer in force”. The letter enclosed a copy of the letter written to the Applicant the previous day.
The writer advised that the Applicant’s lay representative had indicated that the Applicant:
·presses the deadline for the APVMA to lodge all relevant documents with the Tribunal by 3 November 2017; and
·does not intend to withdraw the application.
The writer “respectfully suggested” that the proceedings are frivolous and/or lacking in substance within the meaning of s 42B(1)(a) of the AAT Act and proceeded to set out argument in support of that proposition. He then indirectly requested a telephone directions hearing to hear argument on that question and concluded:
In the circumstances, pending such a hearing we ask that the Tribunal direct that the respondent is excused from filing the section 37 documents until further order.
Also on 2 November 2017, the CEO sent an email on Board letterhead entitled “HOUSEHOLDER” (the CEO’s 2 November email). The heading of the document is “Rodent Eradication Program – Update”. The copy before the Tribunal was sent to the Applicant’s lay representative but the Tribunal infers that it was circulated generally to the residents of the Island. It referred to the correspondence between the Respondent and the Applicant the previous day and the surrender of the permit. The CEO noted that the surrendered permit had some conditions but “Work is well underway towards satisfying the permit conditions”. She concluded:
There are already rumours going around the Island that the “program has been pulled”. This is far from the case. The Board just needs to put in a permit application to the APVMA and get an unconditional permit. The program is still planned for winter 2018 and work is well underway on the implementation. (Emphasis added)
The Board has applied for another permit for the rodent eradication program.
The interlocutory hearing was held by telephone on 23 November 2017.
The Respondent’s argument
The Respondent put the following arguments to the Tribunal.
Dismissal of the proceedings
In circumstances where the permit is surrendered and therefore no longer in force but the Applicant presses the review application, the proceeding is frivolous and/or lacking in substance. The review application was not frivolous and/or lacking in substance when it was filed, but it was argued that the Applicant no longer has any legitimate interest in the proceeding. It also described the proceedings as futile and said that events have overtaken the review application and there is nothing for the Tribunal to do; there is no longer any subject matter to which the Tribunal can directs its orders.
The Applicant is in the best position it can be; the permit to which it objected no longer exists. Even if the Applicant had been successful in the Tribunal, the Board could have sought a new permit.
The Applicant is entitled to a refund of the application fee pursuant to the Administrative Appeals Tribunal Regulation 2015.
In the case of Re Williams and Australian Electoral Commission (1995) 38 ALD 366 (Williams) at 374 the Tribunal found:
The interest which gave the applicant standing to commence the proceedings has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious.
The Respondent also referred the Tribunal to the cases of Re Filsell and Comcare (2009) 109 ALD 198 (Re Filsell), MacNeall and Civil Aviation Safety Authority [2016] AATA 209 (MacNeall), and PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 39 ALD 339 (PW Adams Pty Ltd).
The Respondent pointed out that the Tribunal has jurisdiction in relation to the review application because s 167(1)(m) of the AGVET Code provides for the review of a decision to grant a permit subject to particular conditions.
The Respondent submitted that the Applicant’s concern that there was nothing to stop the Respondent issuing a permit in similar terms was speculative and not a basis for maintaining the proceedings. Whatever findings the Tribunal might make about the surrendered permit would not be informative. If an unconditional permit was issued, whatever findings the Tribunal made would not be instructive to the public or the Respondent.
In effect, the Applicant is seeking declaratory relief, which the Tribunal does not have power to do: cf PW Adams Pty Ltd.
The Respondent resisted the suggestion that the Authority had done a deal or colluded in the process or that it was ‘in cahoots’ with the Board. It was an attempt to resolve the matter.
The effectiveness of the permit surrender
In ordinary experience, it is unusual for all members of a board to sign a document. The plain language of the letter of 1 November 2017 is reinforced by the CEO’s 2 November 2017 email and the fact that the Board has applied for another permit. The presumption of regularity should be assumed: McLean Bros & Rigg Ltd v James Grice and Another (1906) 4 CLR 835. The correct factual finding is that the permit has been surrendered by the permit holder.
The Respondent does not accept that the Board needed to pass a resolution. A person with the ostensible authority of the Board signed the letter and sent a copy to the Chair of the Board. The Tribunal should infer that the CEO is clothed with the authority of the Board to communicate with the Respondent. The case of Dawson v Westpac Banking Corporation (1991) HCA 52; (1991) 104 ALR 295 (Dawson) at [31], supports that proposition.
If the permit was not lawfully surrendered, the practical outcome would be that the Board will pass that resolution.
Non-compliance with s 37 of the AAT Act
There has been no contempt of the Tribunal. In early November, the Respondent raised the prospect that this matter has no utility and sought to have it dismissed. In that context, it requested that it not be obliged to provide the s 37 documents.
The Tribunal should direct that the time for filing of documents pursuant to s 37(1) of the Act is extended until the date of the decision if the Tribunal decides to dismiss the application, or until a week after in the event that the Respondent is unsuccessful.
The provision of the s 37 documents is only for the purpose of the proceedings and not for a collateral purpose.
The Applicant’s argument
The Applicant’s legal representative put the following arguments to the Tribunal.
Dismissal of the proceedings
The Applicant is entitled to documents pursuant to s 37 of the AAT Act. They were due on 27 October 2017 but the Applicant agreed to the request of the Respondent’s legal representative to extend the time for their production until 3 November 2017. They have not been produced. The Tribunal did not act on the request in the letter from the Respondent’s legal representative dated 2 November 2017 to be excused from filing the s 37 documents “until further order” and the Tribunal has no power to do so.
It is apparent from the 2 November email that the Respondent suggested that the Board surrender the permit and apply for a new one.
It is not been established that the person who signed the letter advising that the Board surrendered the permit had the requisite authority to surrender it.
It is also apparent from the 2 November 2017 email that the Board has only to apply to the Respondent for a new permit and it will get an unconditional permit for the “program”, that is, the eradication of the black rat and house mouse by pesticide, which is still planned for winter 2018. The Board has applied for another permit. It is clear from the Respondent’s position in these proceedings, that there no right of review in this Tribunal of an unconditional permit. The right of review being currently exercised would no longer exist.
The review application has not lost its practical significance.
The Respondent’s Statement of Reasons issued pursuant to s 28 of the AAT Act acknowledged the need to:
·assess public health risks associated with chemicals;
·assess unintended harmful effect on animals, plants, things and the environment; and
·take into account the views of other authorities.
The decision-maker took into account the risk assessment produced by the Department of Environment and Energy (the DoEE assessment) which recommended that the Respondent decline to be satisfied that the Chemical Product would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment. The decision-maker also took into account a response from consultation with the New South Wales Environment Protection Authority (the EPA) which was in favour of issuing the permit. The decision-maker gave greater weight to the DoEE assessment. Ultimately, the decision-maker determined that the unacceptable risks could be managed by a risk management plan to mitigate them. That conclusion was based on a Decision Minute from the Respondent’s Scientific Assessment and Chemical Review section.
There a whole host of disadvantages if the present application is dismissed. The Applicant will be deprived of the benefit of looking at the s 37 documents and will be unable to explore the reasoning for the decision and the input from other bodies. That information would shed light not only in relation to the permit the subject of these proceedings but to any future permit.
The Applicant represents the majority of inhabitants of the Island. The matter is of significant interest. Poison is going to be dropped by helicopter in unsettled areas on the island. In settled areas, there will be hand broadcasting of pellets and bait trays, and stations. All buildings will have bait trays in floors and ceilings, including dwellings.
That interest does not end with the surrender of the permit. An ongoing program is intended. There is significant utility in being able to agitate and understand the reasons behind the decision. Findings by the Tribunal in respect of the appropriateness or otherwise of the issuing of the surrendered permit could be relevant to consideration of the responsible future decision-maker. There is an inference in the CEO’s 2 November 2017 email that the Board only had to apply and a permit would be issued. A future decision-maker will be made aware of and assisted by findings of deficiencies that the client is confident will be made.
In support of its dismissal argument, the Applicant relied on the decision of Merkel J in Allan v Development Allowance Authority and Another (1999) 56 ALD 418 (Allan) and distinguished the cases relied on by the Respondent except for one aspect of PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 39 ALD 339 which it argued supported its case. Those cases are discussed later in this decision.
The effectiveness of the permit surrender
The Applicant argued that the Respondent needs to satisfy the Tribunal of the underlying facts before exercising its power to dismiss the review application. Was the surrender notification signed by the “holder” of the permit as required by s 117(1) of the AGVET Code?
The Applicant’s instructions were that there was no resolution of the Board to surrender the permit. The Applicant has looked unsuccessfully for the delegation to the CEO, including searching the public records of the Board.
In support of its argument, the Applicant provided to the Tribunal a copy of the Board Business Paper for the Board Meeting in November 2015 in relation to Delegations of Authority under Lord Howe Island Act (the Board Business Paper).
The Applicant argued that the presumption of regularity did not apply, as follows. Clearly what happened on 1 November 2017 was not day to day business. If the Board had passed a resolution that it was going to surrender the permit the next day and the CEO signed the letter, the presumption might apply. There is no suggestion that that took place. There is no evidence that the Board decided to surrender the permit.
Non-compliance with s 37 of the AAT Act
The Applicant put the following two arguments based on the claimed non-compliance with s 37 of the AAT Act.
The Respondent has been in breach of its obligation to provide documents pursuant to s 37 of the AAT Act since 3 November 2017. The Respondent’s letter dated 2 November 2017 recognised that it needed to be excused for that failure. That has not been done. The Respondent remains in breach of its legislative obligation. A person in contempt of court cannot move the court to take further steps in the proceedings unless the contempt is cured. In support of that argument the Applicant relied on the decision of the Full Bench of the Industrial Relations Commission of New South Wales in Nutshack Franchise Pty Ltd and Others v Smith and Another Matter No. IRC 6593 of 1998.
Section 37 of the AAT Act imposes an equivalent obligation. The Respondent has not produced the documents, has not been excused for that failure, and it is not clear that the Tribunal has power to do so. That matter should be a relevant consideration in the exercise of the power to dismiss the proceedings.
If the Applicant is unsuccessful in relation to the dismissal application, the Tribunal should direct the Respondent to produce the documents pursuant to s 37 of the AAT Act before dismissing the application for review. There is practical utility in doing so. Even if the Applicant is sitting on the sidelines, those documents would assist the Applicant to understand how the decision to issue the permit was arrived at and how the present application for a permit may be dealt with. That would be doing no more than what the legislation requires: to produce documents that are readily available to it.
Further, it could find out what the technical issues were which led to the surrender of the permit and to determine how to prevent that occurring again. The Respondent makes mistakes. Based on the CEO’s 2 November 2017 email, the Applicant fears an unconditional permit will be issued and it will have no right of review. Further, the Applicant’s concern that those circumstances will never be corrected or changed, is not unreasonable.
Consideration
Non-compliance with s 37 of the AAT Act
The Tribunal first addresses the Applicant’s argument that the Respondent is in breach of its obligation to provide documents pursuant to s 37 of the AAT Act (s 37 documents) and the consequences it asserts follow, based on the analogy with being in contempt of court.
Section 37(1) of the AAT Act relevantly provides:
(1)Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
Section 18B of the AAT Act provides that the President may give written directions in relation to various matters, including the procedure of the Tribunal and the conduct of reviews by the Tribunal.
The Practice Direction, Lodgement of Documents under Section 37 and 38AA of the AAT Act has been given by the President under s 18B of the AAT Act. Clauses 2.3 to 2.5 provide for a decision-maker to apply to have the 28-day period extended. The application must be made within the 28-day period. In this case, such an application was made with the consent of the Applicant and granted by the Tribunal on 27 October 2017. The extension was granted until 3 November 2017.
The General Practice Direction was also given by the President under s 18B of the AAT Act. Relevantly it provides:
Part 1 – About this Direction
Application
…
1.4The AAT may alter the procedures set out in this Direction to suit individual applications.
1.5This Direction does not apply to the extent it is inconsistent with a provision of the AAT Act or another enactment, another direction under section 18Bor a specific direction made in a particular application.
…
Other matters
Non-compliance with legislative requirements and directions
4.57The requirement that you and the decision-maker use your best endeavours to assist us to fulfil our statutory objective includes complying with any legislative requirements, any relevant direction made under section 18B of the AAT Act and any specific direction made in a particular application.
What must be done if you or the decision-maker may not be able to comply
4.58As soon as you or the decision-maker become aware that you or they may not be able to comply with a legislative requirement or direction and before the deadline, you or they must contact us to request extra time. Unless we allow otherwise, the request must:
(a)be in writing;
(b)explain the reasons for requesting further time; and
(c)tell us whether the other party agrees to the request.
4.59We will decide whether or not to grant an extension of time and its length. You or the decision-maker should not assume that a requested extension will be granted. In considering a request for an extension, we take into account factors such as:
(a)the reason provided for not complying with the requirement or direction;
(b)the notice given in requesting the extension;
(c)any significant delays in progressing the application;
(d)whether any listed event will need to be moved;
(e)the length of additional time requested; and
(f)whether any other party opposes or supports the extension.
4.60We will take into account similar factors when considering a request to vary what must be done under a direction.
Clauses 4.61 to 4.64 of the General Practice Direction set out the consequences for failing to comply with a legislative requirement or direction. Relevantly, in respect of the Respondent, that direction provides:
Consequences for failing to comply
4.61If you or the decision-maker fail to comply with a legislative requirement or direction, we will list the application for a non-compliance directions hearing. If you or the decision-maker comply before the day of the directions hearing, we will decide whether or not the directions hearing should proceed.
4.62If an applicant has not complied with a direction by the time of the directions hearing, we may consider dismissing the application under subsection 42A(5) of the AAT Act.
4.63In cases where we have a discretion to order the payment of costs, non-compliance may be taken into account when making the decision on costs.
4.64If a representative has a history of non-compliance, actions we may take include:
(a)contacting the representative, writing to the representative or holding a directions hearing in relation to the non-compliance;
(b)where relevant, writing to the representative’s client about the non-compliance;
(c)where relevant, writing to the representative’s employer about the non- compliance; or
(d)referring the non-compliance to a regulatory authority or relevant professional body.
Any particular action to be taken will be determined taking into account the history and seriousness of the non-compliance and any earlier action taken in relation to the representative.
The General Practice Direction does not state that the Tribunal may not allow a decision-maker who has failed to comply with a legislative requirement or direction to take further steps in the proceedings, including applying for dismissal of an application for review.
In this case, the Respondent applied to the Tribunal to exercise its power so that it would not be in breach of the direction, pending the hearing of the dismissal application. It was not an application for an extension of time within which to lodge the documents. The application was in writing, explained the reasons for making that request and advised that the Applicant “presses” the 3 November deadline, that is, the Applicant did not agree to the Respondent’s request to the Tribunal.
The Tribunal does not accept the Applicant’s submission that the Respondent is in breach of the direction or its legislative obligation or that it should not be permitted to take further steps in the case. While the legislative obligation to lodge the documents continued, the statutory time frame of 28 days had been extended by the Tribunal’s direction, until 3 November.
The Tribunal did not address the Respondent’s 2 November 2017 request prior to the hearing of the dismissal application. The Respondent did what it could to ensure that it was not in breach of the direction. The Applicant did not apply to have the matter dealt with before the hearing of the application for dismissal or assert prior to that time that the Tribunal had no power to deal with the request as formulated.
The Tribunal accepts that it cannot excuse the Respondent from its statutory obligation to file documents pursuant to s 37 of the AAT Act. It does not accept that it did not and does not have the power to make an appropriate direction, such as extending the time for filing the documents until further order or determination of the dismissal application, including after the time for complying with a direction has passed. In coming to that conclusion the Tribunal has taken into account section 33 of the AAT Act and cll. 1.4 and 1.5 of the General Practice Direction.
Section 33 of the AAT Act relevantly provides:
(1) In a proceeding before the Tribunal:
(a)The procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (emphasis added);
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and every other relevant enactment and a proper consideration of the matters before the Tribunal permit …
The Tribunal does not accept the Applicant’s submission that, in the event that it decides to dismiss the review application, it should direct the Respondent to produce the documents pursuant to s 37 of the AAT Act before doing so, for the following reasons.
The Tribunal’s function is to review decisions.[1] It can affirm or vary the decision under review, or set it aside and make a decision in substitution for the decision, or remit the matter for reconsideration in accordance with directions or recommendations.[2]
[1] Sections 2A and 25 of the AAT Act.
[2] Section 43(1) of the AAT Act.
Part 5 of the General Practice Direction is entitled “Implied undertaking not to use documents for another purpose”. Relevantly, it provide:
Implied undertaking
5.2If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a)the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b)we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a)documents lodged under section 37 or 38AA of the AAT Act;
…
5.4The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.
…
Use of documents in any other circumstance
5.6If you or the decision-maker want to use a document for another purpose, including a document that was given to us in an application that has been finalised, you or they must apply to us for leave to be released from the implied undertaking. The request must:
(a)be in writing;
(b)specify with particularity the documents in relation to which release is sought;
(c)tell us clearly why you want the release and who will use the documents; and
(d)if possible, specify whether or not the person to whom the documents relate consents to the release from the implied undertaking.
5.7Unless you or the decision-maker believes it is not necessary or appropriate, a copy of the request must be sent to the other party or parties to the application in which the documents were originally provided. We might require you or the decision-maker to give a copy of the request to another party or other person if we think it is appropriate.
5.8We will determine whether to decide the request on the papers or by holding a hearing before making a decision.
While the Tribunal accepts that the Applicant may have the interest and concerns summarised above, they are not a basis for the Tribunal to make the order it seeks. In making that finding, the Tribunal accepts that the Respondent’s position is that there is no right of review pursuant to s 167(1)(m) of the AGVET Code where a permit has no conditions. It notes that s 167(1)(m) also provides for the review of decision to issue a permit for a particular period only.
The effectiveness of the permit surrender
Section 115 of the AGVET Code provides that a permit is in force for the period stated in it or until surrendered under s 117 or cancelled by the Respondent. There is no form prescribed for the purpose of s 117 which provides:
(1) The holder of a permit may surrender it by giving to the APVMA a written notice, signed by the holder, stating that the holder surrenders the permit.
(2) The surrender of a permit takes effect when the APVMA receives the notice of surrender.
(3) If there is a co‑ordinator designated for this or another jurisdiction, the APVMA must, within 14 days, tell the co‑ordinator that the permit has been surrendered.
It is not in dispute that the Board was the holder of the permit or that the CEO signed the written notice stating that the holder, the Board, surrenders the permit.
The Lord Howe Island Act1953, s 14, provides that the Board may, with the permission of the Minister, delegate its powers, authorities, duties and functions, other than a power, authority, duty or function relating to granting a lease or which may be prescribed.
The recommendation in the “Lord Howe Island Board Business Paper” for the Board meeting in November 2015 was that the Board:
1. Endorse the delegations as per Attachments 1 and 2
2. Seek the Minister’s approval for the Schedule of Delegations.
All the delegations listed in the Schedule of Delegations attached to the Business Paper, referred to provisions in the Lord Howe Island Regulation 2014. The Tribunal was not taken to any of the particular delegations. However, the Tribunal finds that none of them relate to a delegation to the CEO to sign a document such as the notice surrendering the permit. There is no evidence before the Tribunal that the Minister approved those delegations in any event.
In Dawson, Chief Justice Mason said:
The general rule is that, where an act is done which can only be done legally after the performance of some prior act, proof of the later act is presumptive evidence that the prior act was done.
His Honour went on to discuss McLean Bros and Rigg Ltd.
The Tribunal accepts that the letter surrendering the permit held by the Board is presumptive evidence that the CEO had the authority from the Board to write it. As in Dawson, the Tribunal finds that this is a situation where there is a strong presumption of regularity, which if not rebutted, would justify a finding that the CEO was authorised to write the letter. The letter shows that a copy was sent to the Chair of the Board. The CEO stated that “As this is an operational matter, I am responding as the Chief Executive Officer of the Board” which suggests that she was authorised by the Board to deal with “operational matters”, of which the surrender of the permit was one. As of the date of the hearing, the Board had acted on the basis that the permit had been surrendered and had applied for another permit.
The Tribunal is not satisfied that the evidence and instructions relied upon by the Applicant have rebutted the presumption. The Tribunal does not accept that the list of delegations under the Lord Howe Island Regulation 2014 in the Schedule to the Business Paper reflect all delegations that are possible under the Lord Howe Island Act 1953, s 14. The Tribunal does not accept that the Applicant’s instructions that the relevant delegation cannot be found in the public records is sufficient to rebut the presumption.
The Tribunal does not accept the Applicant’s argument that the surrender of the permit was ineffective.
Dismissal of the proceedings
The surrender of the permit before the Tribunal has had the opportunity to exercise its power of review does not terminate its power to review the decision which remains on foot.[3] The Tribunal has a discretion whether or not to do so pursuant to s 42B of the AAT Act.
[3] PW Adams Pty Ltd v Australian Fisheries Management Act Authority (1995) 39 ALD 339 at 357.
The power of the Tribunal to dismiss proceedings under s 42B is a power that should be used cautiously.[4]
[4] Re Filsell and Comcare (2009) 109 ALD 198 at [33](c).
The Respondent relied primarily on Williams. In that case, the particular officer the subject of the reviewable decision no longer held the relevant office at the time the Tribunal was considering the question of dismissal pursuant to s 42B. The Tribunal dismissed the proceeding at [39] because:
In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. Nor is there any reputation at stake or “face” to be saved. The interest which gave the applicant standing has long ceased to exist. He has no legitimate interest in pursuing them further.
In MacNeall, the Tribunal dismissed the application because it lacked any “any further utility”. In summary, on 1 September 2015, CASA issued the applicant a Class 2 medical certificate for 12 months which expired on 30 December 2015. The applicant argued that the certificate should have been for two years and should have commenced on 4 September 2015. The Tribunal determined that the relevant regulation led to the result that the certificate came into force on 30 December 2014 and that the Tribunal had no jurisdiction in relation to the term of the certificate.
The Respondent relied on Re Filsell for the proposition that the word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceeding; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings. The Tribunal notes that the Tribunal refused to dismiss the application in that case.
The Respondent relied on the decision of Sackville J in PW Adams Pty Ltd, an appeal from the Tribunal in respect of three decisions about fishing quota allocations relating to 1993, 1994 and 1995. Specifically, the Respondent relied on his Honour’s decision in respect of the 1993 quota. His Honour found that the Tribunal had erred in law but decided that there was no utility in an order requiring the Tribunal to reconsider the case. That was because his Honour found that that permit had been superseded by the 1994 and 1995 decisions in which an equivalent error had been made and in respect of which he did make orders.
His Honour did not think that there was any utility in remitting the 1994 quota matter to the Tribunal because there was no point in re-assessing the quota condition for a year that had already ended. However, his Honour did find that there was some utility in making a declaration that the Tribunal had erred in affirming a decision to apply a policy which failed to take into account a relevant consideration, namely the objective of the relevant legislation. The Applicant relied on that aspect of the case.
The Applicant relied on the decision of Merkel J in Allan, on appeal from the Tribunal, which was principally concerned with the standing of the applicant. The case concerned the widening of a freeway to within 100 metres of the applicant’s home. The development was financed by infrastructure borrowing certificates issued by the respondent. The applicant sought review of the decision to issue the certificates. When the Tribunal dealt with the proceeding, the applicant had sold his home.
After finding in favour of the applicant on the question of standing, his Honour dealt with the question of whether the AAT proceeding was frivolous or vexatious in three out of 76 paragraphs, [70] to [72]. His Honour found that the proceedings were not frivolous or vexatious.
At [46] of that decision, his Honour distinguished the case of Williams:
If the appellant succeeds on the merits and establishes that s 930 of the DAA Act prohibited the issue of infrastructure structure borrowing certificates, the AAT is empowered, inter alia, to set aside the DAA decisions granting the certificates: see s 43(1)(c) and (6) of the AAT Act. Accordingly, unlike Williams, the outcome of the AAT proceeding in the present case is not one that is “devoid of any practical effect”.
His Honour’s reasons for coming to that conclusion were set out at [71]:
… although there may no longer be any threatened interference with the appellant’s amenity, the expenses and inconvenience of his change of residence were said by him to have arisen solely from the original adverse effects claimed by him which led him to (request review of the decision). In the event that the evidence is accepted, and if, contrary to my view, the appellant’s change of residence can be a relevant consideration, in my view that change is not sufficiently disconnected from the appellant’s original “interest” to result in his application to the AAT being frivolous or vexatious.
In this case the permit was surrendered by the Respondent because it “was attended by technical issues”. On the evidence, only the Respondent knows what those issues are.
The Respondent is currently considering the Board’s application for another permit for the rodent eradication program. Based on the correspondence between the Board and the Respondent, the Tribunal finds that a new permit is likely to be issued. It may be issued subject to conditions or with no conditions. It is clear from the CEO’s email of 2 November 2017, that she understands that the new permit will be unconditional. In that case, the Respondent’s position is that there is no right of review in this Tribunal.
The Applicant is concerned that the Respondent made mistakes which may never be known or corrected if this proceeding is dismissed because the next permit will be unconditional and there will be no right of review in this Tribunal.
The Tribunal accepts that the Applicant will be affected by any future permit that the Respondent issues.
The permit which gave the Applicant standing to commence this proceeding ceased to be in force when it was surrendered.[5] Whatever the Tribunal’s decision may be, it would be “devoid of any practical effect”.[6]
[5] s 115(1) of the AGVET Code.
[6] Williams at [39].
The Tribunal does not accept the Applicant’s argument to the contrary. It does not accept that the case of Allan assists this Tribunal. There was no suggestion in that case that the infrastructure borrowing certificates had expired or lapsed or been surrendered.
The Tribunal does not accept that there is a question of saving face in this case that was alluded to in Williams.[7] That reference was clearly to the Applicant and not the Respondent. The Applicant in this case has been vindicated because the Respondent has recognised that there may be “technical” difficulties in the permit which go to its validity.
[7] At [39].
The Tribunal accepts that the proceedings were proper and appropriate when they were commenced. It does not accept that the Applicant’s view that it was “snookered” by a stratagem to which the Respondent and the Board were parties is a reason for not dismissing the proceedings.
The Tribunal does not accept that the Applicant has a legitimate interest in pursuing the proceeding further. It finds that it is seeking access to the s 37 documents to inform itself in respect of future decisions rather than the decision under review.
The Applicant argued that the Tribunal’s findings would be useful. The Tribunal finds that their utility, if any, would be limited to future decisions. Further, whether the Tribunal’s findings would be useful to the Applicant is speculative.
If the hearing proceeded, the Tribunal would expect that the Respondent would draw to its attention the “technical” matters about which it was concerned that go to invalidity. If the Tribunal concluded that the reviewable decision was invalid, it would be unnecessary to consider the merits of the reviewable decision.
The Tribunal’s role is to review certain decisions.[8]
[8] s 25 of the AAT Act
The Tribunal’s objective is set out in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Taking into account the powers and objectives of the Tribunal and the circumstances of this case, the Tribunal finds that this proceeding has become frivolous or vexatious.
The appropriate course is to dismiss the application for review pursuant to s 42B(1)(a) of the AAT Act.
Costs
The question of costs therefore does not arise in this case. The Tribunal has no general power to award costs, as acknowledged by the Applicant’s legal representative in its post-hearing submission on costs dated 23 November 2017. The submission referred to particular items in s 26 of the Administrative Appeals Regulation 2015 which confers a power on the Tribunal to award a “refund amount”. The powers conferred do not assist the Applicant because it has been unsuccessful.
Decision
The application for review is dismissed pursuant to s 42B(1)(a) of the AAT Act.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
..........................[sgd]..............................................
Associate
Dated: 6 December 2017
Date of hearing: 23 November 2017 Date final submissions received: 23 November 2017 Advocate for the Applicant: Mr P Curtin Solicitors for the Applicant: Mr S Griffiths, Pikes and Verekers Lawyers Solicitors for the Respondent: Mr J Davidson, Australian Government Solicitor
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