Parkes Rural Distributions Pty Ltd v Balfour, R.J

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NOT FOR GENERAL DISTRIBUTION

l	IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY )

NO. NSW G.216 Of 1987

DIVISION

GENERAL

)

BETWEEN:

PARKES RURAL DISTRIBUTIONS

PTY LIMITED

Applicant

AND: RICHARD

JOHN

BALFOUR

Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY

DATE :

16 JULY

1987

MINUTES OF ORDER

THE COURT ORDERS

THAT:

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1.	The	application	seeking	relief	under	s.15 of the	,'
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Administrative Decisions (Judicial Review)	Act be
dismissed.

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2.	The applicant pay to the respondent his costs of theY	!
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application.	i . r'
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Note:	Settlement and entry of orders is dealt wlth in Order

36 of the	Court	Federal	Rules.	r ,
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NOT FOR GENERAL DISTRIBUTION

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IN THE FEDERAL COURT OF AUSTRALIA

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NEW SOUTH WALES DISTRICT REGISTRY )

NO. NSW G.216 Of 1987

1 I .

DIVISION

GENERAL

)

L -.

BETWEEN: PARKES RURAL DISTRIBUTIONS

PTY LIMITED	, -
Applicant

AND: RICHARD JOHN BALFOUR

Respondent

CORAM :

NILCOX J

PLACE :

SYDNEY

DATE :

16 JULY

1987

EXTEMPORE REASONS FOR JUDGMENT

There is before the Court an

application which was,

by leave, filed on 1 4 July seeking relief under s.15 of the connection with an Application under that Act which is sought

to he filed if an extension of time is granted.

The

application for an extension of time was filed on 20 May 1987,

and to that document was attached the form of Application

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whlch it was desired to file if an extension were granted.

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That application €or extension came before Burchett J

on 29 May 1987. By

arrangement, the matter was mentioned in

chambers before his Honour on 2 June 1987, when 2 4 August 1987

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was appolnted for the hearing of the extension of time.	In	.*
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the meantime, as I have said, an application has been made for

an interim order under s.15 and this application was debated	:.
this morning.

The relief which is sought is an order restraining

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the respondent, Richard John Balfour, from proceeding with

prosecutions against the applicant, Parkes Rural Distributions

Pty Limited -- which are identified by the numbers 5005D,

5006D, 5007D, 5009D

and 5011D -- at the Local Court, 302

Castlereagh Street, Sydney. Those prosecutions are currently intended to be listed for hearing next Monday, 20 July 1987;

a period untll 21 August 1987	having been reserved for the
hearing.

There is a very considerable history to the present

matter.

The various prosecutions arise out of the Petroleum

Products Subsidy Act 1965 (NSW).

Section 8 deals with

certificates given under that Act in relation to payments due

to registered distributors of eligible petroleum products.

Sectlon 8(iii) provides that where an authorised officer is

satisfied that an amount paid to a person under the Act was

not payable to that person, or exceeded the amount that was

payable to that person, he may give a certificate in wrlting

that the amount pald or the amount of the excess, as the case

may be, is repayable by that person to the State.

...

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It appears that the applicant was

a registered

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distributor of eligible petroleum products	in the years 1981	L '
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and 1982.

On 2 February 1982 Mr Glasson, an authorised

officer

under the Act, issued

a certificate

under

s.8(iii)

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certifying that a sum of $152,317.70 was repayable by Parkes

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Rural Distributions to the State of New South

Wales.

Parkes Rural Distributions sought review

of that

certiflcate under the Admlnistrative Decislons (Judicial

Review) Act:

and proceedings were taken in this Court, which

proceedings went on appeal to the Hlgh Court of Australia.

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a decision reported at 115 CLR 234, given on

20 August 1984,

the High Court

held that a certificate under s.8(iii) was not

a "decision under an enactment",

so as to be wlthin the

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jurisdiction of this	Court.	I_
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Shortly after that decision was given, namely on 13

November 1984, the present respondent, Richard John Balfouri

who was also an

authorised officer under

the Petroleum

Products

Subsidy

Act,

issued

a second

certlficate

under

s.E(iii).

This certificate was for a lesser amount, namely

$134,065.27.

At the time it was said by the Australian

Government Solicitor, in correspondence wlth the solicitors

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for the present applicant, that It	was intended that thls	I
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second certificate would	be in substitution €or the earlier	i'
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certiflcate.	I
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The present applicant commenced proceedings

in the

Supreme Court of New South Wales, attacking

the validity of

both certificates.

These proceedings came before Hunt J

July 1985. In a ~udgment

delivered on 10 July 1985, Hunt J

dismissed the application made to him.

He held that the

earlier of the two certificates was invalid, because of the fallure of Mr Glasson, prior to issuing the certificate, to

hear the affected person, namely Parkes Rural Distributions

Pty Limited.

His Honour dealt with a number of grounds

reference to which it was said that the second certificate was

invalid. He re~ected

an argument that it was not possible

under the State Act for an

uthorised officer to issue a

second, or an amended, certificate. He also dealt

with a

submission that the second certificate was out of time because

of the effect of cl.E2(6) of the Scheme adopted pursuant to

the Commonwealth Act: that is, the State Grants (Petroleum

Products) Act 1965.

That legislation provides for the

adoption by the Minister

of a Scheme, and it appears that such

a Scheme has been adopted referable to New South	Wales.
Clause E2 deals with certificates for payments,	and it follows

fairly closely s.8 of the State 'Act.	However, it contains	.	,'
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sub-clause (6), which reads as follows:

"(6) After the expiration of a period

f two years

from the date a claim

is made, no adjustment shall be

made or certified under this clause to the amount

certified as payable in connexion with the claim except

an ad~ustment for the recovery of an overpayment arising

out of fraud in relation to the claim or to payment

under the claim."

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It was submitted to Hunt J,'on bchalf of Mr Glasson

and Mr Balfour, that cl.E2(6) was of no relevance to a

challenge to a certificate given under

s.8(ili) of the State

Act.

His Honour rejected that submission

and considered the

application o f cl.E2(6)

to the case before him.

particular, he considered the qualification

at the end of the

clause dealing with an overpayment arising out

fraud.

It was

apparently put to his Honour

that the issue of

fraud was ~usticiable

In the proceedings before

him. His

Honour rejected that submission

and held that the issue of

fraud was one for determination

by the certifying officer,

subject only to the usual supervision effected

by the courts

through the medium

of judicial review.

It was apparently also submitted

that there was no

sufficient evidence to enable Mr Balfour

to come to a

conclusion that there existed fraud, but his Honour rejected

that submisslon.	In hls ~udgment	he expressed the view, and I
quote :

"There was In my view an abundance of evidence

available to the second defendant."

That is on the issue

of fraud.

Notwithstanding these findings, Hunt

J held that the

second certificate under s.8(iii) was invalid.

The reason for

his so finding was that at the time of its issue, no

certificate had been granted under

cl.A4 of the Commonwealth

Scheme. Clause

A4(1) provldes that, subject to sub-cls.(2)

and ( 3 ) of the clause, "the place or date of a sale shall for

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the purposes of thls scheme be the place or the date of sale	l
specified in the prlme document of the sale". For practical	:

purposes, the words "prime

document" may be regarded as

referring to the relevant Invoice. Sub-c1.(3)

provides that:

" ( 3 ) An authorised officer shall -

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(a)	if upon investigatlon of a sale he is satlsfied that the actual place or date of the sale was not the place or date speclfied in the prime document: or

(b) if no place or date for the sale

specifled in the prune document,

give a certificate stating the place at which and the date on which in his opinion the sale took place, and

the sale shall

be regarded as having taken place for the

purposes of this scheme at the place and on the date	I ,
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stated in the certificate."	t
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As I follow his reasoning, the view that was taken by Hunt J was that, unless and until there was a relevant

certificate under cl.A4(3) so as to displace the provisions of	._
cl.A4(1), an authorised offlcer could not under s.8(iii) make a certificate which was inconsistent with the prime document. Consequently, his Honour held that the second certificate was invalid.	2.
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However, a few days before the hearing before his

Honour -- namely, on 25 June 1985 -- a certificate under cl.A4

had in fact been issued.

It is this certificate whlch is

sought to be impugned In the principal proceedings in this

Court. Hunt J took the view that it would be futile to grant relief In respect of the second s.E(iii) certificate on thls	. .
ground, because it would be open to the respondent, Mr	t '
Balfour, Immediately to issue a thlrd s.8(iii) certiflcate
which was valid.	!

Before Hunt 3 considerable attention was

paid to the

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Issue of	natural -justice. It was submitted	that,	~n reaching	I !
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the conclusions set out in the second s.8(iii)	certificate, Mr	I.
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Balfour had denied the applicant natural justice. His Honour

devoted a lengthy section of his judgment

to an analysis of

the

evidence

these matters. For

the

most

part,

held

that

here

had been no failure to offer

appropriate

hearing.

However, there were some invoices in relation to

which it was conceded that the attention of the applicant

had

not been drawn.	But for one circumstance, as	I understand the	1
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judgment, Hunt J would have held that this failure vitiated

the certificate. However, the one circumstance was that it

was conceded on behalf of the applicant that

it would not have

been able to put any additional information before

Mr Balfour

in relatlon to the matters

in respect of which there

had been

that failure.

Consequently, Hunt J held that there was an

absence of prejudice

and, consequently, that the certificate

was not void because of the failure to afford natural

-justice

to the then plaintiff.	As I have said, the application before
Hunt J was dismissed.

An appeal was taken by Parkes Rural Distribution Pty

Limited to the Court of Appeal, which appeal

was dismissed on

2 4 November 1986.

Apparently not all of the grounds relied

upon before Hunt

J were reargued before the Court

of Appeal,

but the matter of natural lustice was

reargued:

as also was

the question of whether the issue of

fraud was one for the

officer or for the court.

The Court of Appeal agreed with thc

views on both these matters which have been expressed	by
Hunt J.

Parallel to the civil proceedings there have been

criminal proceedings. As I understand the history of the matter, 16 informations were laid by Mr Balfour, or other

officers, against Parkes Rural Distributions Pty Limited

December 1982 and in January 1983.

These informations all

alleged offences under

s.lS(2)

of the Petroleum Products

Subsidy Act.

I gather that most of the informations were

based upon para.(a),

whereby it is made an offence for a

person to obtain a payment under the Act that,

to the

knowledge of that person, is

not payable. There were

apparently also some informations based on para.(c), but they

are not material to the present proceedings. The events, the

subject of all of the informations,	took place in July and
August 1981.

It appears from a summary of the criminal

proceedings, which are

set out in a judgment of Yeldham

J in

the Supreme Court, dated 19 February 1987, that the hearing of

the first information commenced

on 17 August 1982. As at the

present time, as I understand the position, evidence has

been

taken in 11 of the 16 cases:

each of which has

been heard

separately. Apparently

in some three or four of the cases the

informations have been dismissed,

and there have been

convictions in the remainder.

There appear to have been

appeals in respect of each of the cases

where there have been

convictions, not all of which have yet been

completed.

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The very extensive delay whlch has occurred In the

resolution of these prosecutions seems to have been caused

partly by the contemporaneous civil proceedings, regarding the

validity of the certificates, and partly because of listing

problems, caused by the unavailability of magistrates in the

Local Court.

The current position is that the period

commencing next Monday has been set aside, apparently in the

expectation that it will be sufflcient to allow the remainlng

five matters to be heard and determined. As I understand the

position, although the present appllcant will continue

to seek

a separate hearing of each information, as is of course its

entitlement, it has not in the past raised, and does not

expect in the future to raise, any ob-jection to the hearing of

a subsequent informatlon by a magistrate who has already dealt

with an earlier information.

One can only say

that it would

be a matter of some dismay If the allotted period were not

sufficient to deal with these five cases. I say this because

it 1s now SIX years since the period during which the alleged

offences occurred: and

the information which has been given

by the clerk of the Local Court to the parties is that, if the

matters are not completed during this period, there will have

to be an ad~ournment

until May 1988. It would be most

unfortunate for prosecutlons, on matters such as these,

to be

so long delayed in being finalised.

I have reached the view that the present application should be refused and for a number of reasons.

The first

reason is that the Court has yet to determine the

application

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for extenslon of time In which to seek review under the limited by that Act for the filing of an application is 28

days.

There is a wide discretion in the Court to extend the

time, and it is not necessary for me to canvass the

r levant

principles or to

express any concluded view about the

prospects of the extension belng granted.

I merely say that I

thlnk that I must regard it as doubtful whether an extension

will be granted in this case.

I say this because the grounds

of review, which are set out

in the draft Application, seem to

traverse largely, if not entirely, grounds

which were argued

before Hunt J in respect of the

s.8(iii) certificate and, in

particular, the questions of natural justice and whether or

not the certificate was out of time; this latter issue itself

involving a question of whether there was material on which

there could be a finding of fraud.

The findings made

by Hunt J were unsuccessfully

attacked in the Court of Appeal. And

nothing has been put

before me today to indicate that there would be considerations in this Court which would be additional to those considered in

the earlier litigation.

It must be

a serious questlon, for

the

~ u d g e

determining the application for

extenslon of time,

whether thls is not simply an

attempt to re-litigate matters

already well considered.

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The second reason for my view is that, in any event,

the issues which would have to be determined, on the hearing would have to be determined by the magistrate.

of an application under the Adminlstrative Decisions (Judicial

Judicial review involves consideration of grounds of attack upon the making of an administrative decision.

The

relevant adminlstrative declsion was that of Mr Balfour:

make his certificate of 25 June 1985.

The focus would be on

events surroundlng the Issue of

that certificate, including

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the question whether he gave natural justice, and including	L ?
also the relationship between his certlficate and the two	.
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certificates granted under s.8(ili)	of	the	State Act. The	9.
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issue before the magistrate, or each of the magistrates

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there be more than one, who deals

with the pending

prosecutions 1s quite different:

namely, whether or not there

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has been an offence under s.l5(2)(a) of the State Act.

The

relevant events will primarily, if not entirely, be events

which occurred in and around July 1981.

It was conceded

by counsel, in the argument before

me, that the certlflcate

glven by Mr Balfour would not be a

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relevant document before

the magistrate.

Indeed, Mr McDevitt

said that In a prevlous prosecution he had strongly ob~ected

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to the tender of that certificate; it seems to me	rlghtly. I	1:
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have been informed by counsel for the respondent that	it	is	i-
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not intended	that Mr Balfour's certificate be tendered In	the	L
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pending proceedings. I thlnk that the position is that the	.~
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valldlty of the certlflcate, glven by Mr Balfour, is relevant only to the recoverability of the money. Consequently, I see

no problem about

the maglstrate deallng with

the questlon of

guilt or innocence on the presently pending

charges.

My third reason is that the circumstances are such

that the Court's dlscretlon ought to be exercised against

granting the relief which has been sought.

Three matters

should be mentioned in connection with discretion.

First, the

delay in bringing the principal proceedings under the

Administrative Decisions (Judicial Review)

Act is

considerable, namely, 23 months.

It is not as if the

applicant was unaware of the existence of that Act, as is

demonstrated by its unsuccessful attempt to use that Act

relation to the certificate granted by Mr Glasson.

Nor is it

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as if the applicant was unaware of the significance of matters

of natural justlce and the question whether

fraud is a

justiciable issue in the Court, as distinct from being a

matter for the certifier.

These were both matters referred to

in the proceedings before Hunt

J, and on appeal from him.

Secondly, the history which

I have already set out

shows that the date for hearing the applicatlon for extension

was selected, by agreement, at a time when the date of

resumption of the criminal proceedings was already

known. I

have no doubt whatever that

if Burchett J had been told on 2

June 1987 that there were proceedings pendlng

in the Local

Court to commence on

20 June 1987, and that it was desired

that an order be obtained to restrain those proceedings, he

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would have taken some steps to

have the application for

extenslon of time dealt with before that date.

Apparently,

nothing was said to him about that matter and, in the belief

that there was no particular urgency, his Honour set down the

extension application for 24 August.

I am told by counsel for

the respondent that the particular date was in fact chosen as

belng convenient to the parties because it was after the

completion of the period set aslde in the Local Court and

before the date of a pending District Court appeal in respect

of one of the convictions arising out of the prosecutions.

other words, it was chosen upon the assumption that the

criminal proceedings would continue.

Finally, I am disturbed about the lateness

of thls

current application.

It is a matter of grave concern that the

Court should be asked to take the step

of restraining another

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court from proceeding with the hearing of matters, for

which

it has set aside four to five weeks, only

two working days

before that period commences.

The scarcity of dates in the

Local Court is notorious.

It is shown once again

by the

history of these matters. A magistrate has been made

available to hear these

matters and, if I were at this stage

to restrain him or her from so doing, it seems extremely

likely that some or all of the

period which has been set aside

would not effectively be used.

By contrast, if that

application had been made a month or

so ago and been

successful, it may well have been possible for the dates to

have been made available to other parties.

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All of these matters are reasons why, as

a matter of

discretion, the present application should be refused.

The

order I make 1s that the present applicatlon

be refused and

that the applicant pay the respondent's costs of	the
application.
I certify this and the thirteen (13)

precedlng pages to

be a true copy of

the Reasons for Judgment	of	, .
,_

his Honour Mr Justice Wilcox.

Date:

5 Augustv 1987

Counsel for the Applicant:	Mr A A McDevitt
Solicitors for the Applicant:	Robert Hall & CO
Counsel €or the Respondent:	Mr P S Hastings
Solicitor for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	16 July 1987

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[1987] FCA 419

16 Jul 1987