Parkes Rural Distributions Pty Ltd v Glasson, Edward John

[1982] FCA 266

Re: PARKES RURAL DISTRIBUTIONS PTY. LTD.
And: EDWARD JOHN GLASSON
No. G165 of 1982
Certificate said to express 'decision'

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.

CATCHWORDS

Certificate said to express "decision" - whether "decision" made under an "enactment" or is referable to a Statute of the New South Wales Parliament - objection to competency.

States Grants (Petroleum Products) Act 1965

Petroleum Products Subsidy Act 1965

Administrative Decisions (Judicial Review) Act 1977

HEARING

SYDNEY

#DATE 10:12:1982

ORDER

1. The objection as to competency is upheld.

2. The application be stood over generally to be mentioned on seven days' notice.

3. Either side will have liberty to apply on three days' notice.

4. Costs reserved.

JUDGE1

PARKES RURAL DISTRIBUTIONS PTY. LIMITED (applicant) has made application relying on the provisions of s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) to review what is said to be a decision by EDWARD JOHN GLASSON (respondent) expressed in a Certificate dated 2 February 1982 to which more detailed reference is made below. The respondent has filed a Notice of Objection to Competency which will be considered later.

It will be convenient to refer briefly to certain complementary legislation of the Commonwealth of Australia and the State of New South Wales.

The States Grants (Petroleum Products) Act 1965 (Petroleum Products Act) is stated in its preamble to be

"An Act to grant Financial Assistance to the States in connexion with the Prices of certain Petroleum Products."

Sections of it which are more obviously relevant are as follows:-

"3. There are payable to each State, by way of financial assistance, amounts equal to the amounts expended by that State in making payments to distributors of eligible petroleum products in accordance with a scheme formulated by the Minister in relation to that State for the purposes of this Act. . . . . .

5. (1) - (4) . . . . .

(5) The scheme

(a) shall provide for the payment by the State to registered distributors of eligible petroleum products, in respect of the sale by them at places to which the scheme applies of any eligible petroleum products, of amounts ascertained in accordance with the scheme; and

(b) may provide for the payment by the State to registered distributors of eligible petroleum products -

(i) in respect of the application by them to their own use at places to which the scheme applies of any eligible petroleum products; and

(ii) in respect of expenses incurred by them in connexion with the scheme, of amounts ascertained in accordance with the scheme. ......

11. Payment to a State under this Act of any amount (including an advance) is subject to the condition that the State will repay to the Commonwealth, on demand by the Minister of State for Finance, the amount by which, at the time of the demand, the total of the amounts (including advances) paid to the State under this Act exceeds the total of the amounts that have become payable to the State under section 3 of this Act.

12. (1) The Commonwealth shall pay to a State the amount of any damages or costs paid or incurred by the State in or in connexion with any action or proceeding arising out of an act or thing done or omitted to be done by the State in pursuance of the scheme in relation to the State for the purposes of this Act.

(2) The last three preceding sections do not apply to or in relation to a payment made in pursuance of this section. ........ "

The Scheme referred to in s.3 was pursuant to s.4 of the Petroleum Products Act formulated by the then Minister of Business and Consumer Affairs. Under the heading "PART A - PRELIMINARY" para. A1 reads -

"The States Grants (Petroleum Products) Act 1965 of the Parliament of the Commonwealth of Australia as amended at the date this scheme is formulated provides for the grant of financial assistance to each State of the Commonwealth in amounts equal to amounts expended by that State in making payments to distributors of certain petroleum products in accordance with a scheme formulated by the Minister administering the Act in relation to that State for the purposes of the Act. This scheme is the scheme so formulated in relation to the State of NEW SOUTH WALES."

PART B referring to petroleum products deals with the classes thereof to which the Scheme applies. PART C refers to registration of distributors; and PART D to claims by those distributors in respect of sales of eligible petroleum products by the distributor.

PART E is concerned with payments by the State. Para. E1 is as follows -

(1) "A claim shall be examined by an authorized officer whose function will be to give a certificate stating the amount that in his opinion is payable to the registered distributor in connexion with the claim.

(2) When giving a certificate under this clause the authorized officer shall take into account -

(a) the total amount that, subject to further examination as provided in clause E2, the registered distributor is entitled to be paid under this scheme in respect of the sales included in the claim;

(b) the amount of any addition or deduction that may be made pursuant to clause E2;

(c) In the case of a registered oil company so much of advances made -

(i) under clause E4 as have not been set off against payments made by a State; and

(ii) under clause E6 as may not be set off against the amount payable to it for administrative expenses,
and shall specify each amount so taken into account.

E2. (1) The giving of a certificate under clause E1 is not to be taken as finally disposing of a claim and each claim shall subject to sub-clause (6) be subject to further examination.

(2) If upon any further examination of a claim an authorized officer is satisfied that the amount the registered distributor is entitled to in connexion with the claim differs from the amount specified as payable in the certificate relating to the claim, the difference shall, after allowance is made for any previous adjustments under this clause, be payable by the State to the registered distributor or be recoverable by the State from the registered distributor, as the case may require.

(3) An amount payable pursuant to sub-clause (2) by the State to a registered distributor may be added by an authorized officer to the amount for which he would otherwise give a certificate under clause E1 in connexion with a subsequent claim by the registered distributor.

(4) An amount recoverable pursuant to sub-clause (2) by the State from a registered distributor or any part or balance of an amount so recoverable may be deducted by an authorized officer from the amount for which he would otherwise give a certificate under clause E1 in connexion with a subsequent claim by the registered distributor.

(5) Where an amount or the balance of an amount is payable by the State to a registered distributor or is recoverable by the State from a registered distributor and is not taken into account in connexion with a subsequent claim as provided in sub-clause (3) or (4) of this clause, an authorized officer shall give a certificate stating that in his opinion the amount or the amount of the balance, plus any amount for administrative costs calculated as provided in clause E5, is so payable or recoverable as the case may be.
.....
E7. Payments by the State to a registered distributor of amounts to which the registered distributor is entitled under clause E3 and of amounts provided for by clause E4 shall, as between the Commonwealth and the State, be payments by the State in accordance with this scheme provided that, in ascertaining the total of the payments by the State, any amounts recovered by the State from the registered distributor or refunded to the State by the registered distributor as contemplated in this Part shall for the purposes of this scheme be brought into account as deductions."

The New South Wales Parliament passed the Petroleum Products Subsidy Act 1965 (The Subsidy Act) expressed to apply to sales or consumption of petroleum products by registered distributors to which the Scheme applies, thereby meaning the Scheme already mentioned. The following sections of it are more immediately relevant -

"4. There are payable, in accordance with this Act, to registered distributors of eligible petroleum products, amounts ascertained in accordance with the scheme. .....

6. (1) The Minister may appoint persons to be authorized officers for the purposes of this Act. ....

8. (1) An authorized officer shall examine each claim for a payment under this Act made to him and shall, if he is satisfied that an amount is payable to the claimant, give a certificate in writing to that effect. .....

(3) Where an authorized officer is satisfied that an amount paid to a person under this Act (including an amount paid by way of an advance) was not payable to that person or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State. .....

(5) For the purposes of this Act, a document purporting to be a certificate referred to in this section shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given. .....

10. Where an authorized officer gives a certificate under section 8(3) that an amount is repayable by a person to the State, the person is liable to repay that amount to the State and such amount may be recovered in a court of competent jurisdiction as a debt due to the State. .....

15. (1) A person who refuses or fails -

(a) to attend before an authorized officer;

(b) to be sworn or make an affirmation; or

(c) to answer a question or produce an account, book or document, when so required in pursuance of this Act shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding one hundred dollars.

(2) A person who -

(a) obtains a payment under this Act that, to the knowledge of that person, is not payable;

(b) obtains a payment under this Act by means of a statement that, to the knowledge of that person, is false or misleading in a material particular; or ..... shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding one thousand dollars or imprisonment for twelve months. ....

(4) Where a person is convicted of an offence against subsection (2), the court may, in addition to imposing a penalty under that subsection, order the person to refund to the State the amount of any payment under this Act wrongfully obtained by that person.

(5) Where a court has made an order under subsection (4), a certificate under the hand of the appropriate officer of the court specifying the amount ordered to be refunded and the person by whom the amount is payable may be filed in a court having civil jurisdiction to the extent of that amount and is thereupon enforceable in all respects as a final judgment of that court.

16. (1) The Minister may, either generally or otherwise as provided in the instrument of delegation, by writing under his hand delegate all or any of his powers under this Act (except this power of delegation) to such person as may be specified in the instrument of delegation.

(2) A power so delegated may be exercised by the delegate in accordance with the instrument of delegation.

(3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Minister. ...."

The Treasurer of the State of New South Wales, being the Minister administering the Petroleum Products Subsidy (Amendment) Act 1978 by instrument has delegated to the Collector of Customs for New South Wales, the power to appoint officers of the Department of Business and Consumer Affairs as authorised officers in terms of s.6 of the Act. It is not clear to me how the delegation was made pursuant to the Act referred to above; but it is not suggested that there has been any fault in any delegation. I assume delegations to have been correctly made.

The Collector of Customs for New South Wales, pursuant to such delegations under the New South Wales Act, appointed officers of the Department of Business and Consumer Affairs as authorised officers for the purposes of s.6 aforesaid, including the respondent. The appointment was stated to take place as from 23 March 1981.

The applicant is registered as a distributor of eligible petroleum products for the purposes of the Scheme. Following certain investigations between July and December 1981 into claims submitted by the applicant, the respondent was satisfied that amounts previously paid to the applicant under the State Act exceeded amounts that were payable by $152,317.70 and that amount should be recovered from the applicant.

On 2 February 1982, he signed a certificate which he said he did "under s.8(3)" of the State Act in respect of the said sum.

With this background, it is convenient now to set out the document in which the "decision", the subject of consideration here, is said to be expressed. It is as follows -

"PETROLEUM PRODUCTS SUBSIDY ACT, 1965 (N.S.W.) CERTIFICATE UNDER SECTION 8 I, EDWARD JOHN GLASSON, an authorised officer under section 6 of the Petroleum Products Subsidy Act, 1965 (N.S.W.) am satisfied that the amounts paid to Parkes Rural Distributions Pty. Limited under the said Act in respect of claims made for the months of April 1980 to June 1981 inclusive exceeded the amount that was payable to Parkes Rural Distributions Pty. Limited by One hundred and fifty two thousand three hundred and seventeen dollars and seventy cents ($152,317.70) AND I HEREBY CERTIFY that the amount of $152,317.70 is repayable by Parkes Rural Distributions Pty. Limited to the State of New South Wales."

It is the decision which this certificate is said to evidence which then may be the subject of review under the Judicial Review Act, by reference to the definition in s.3 viz.:-

"(1) In this Act, unless the contrary intention appears - ..... "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1; ...."

The Notice of Objection to Competency, omitting formalities, reads as follows -

"The applicant was not a person who was entitled to apply to the Court under Section 5 of the Act, because the decisions referred to in the Application for an Order of Review herein were not decisions to which the Act applied as the said decisions were made under the Petroleum Products Subsidy Act, 1965, an Act of the State of New South Wales which was not an "enactment" for the purposes of the Act."

Counsel for the respondent expressly conceded that for the purpose of this hearing that which was captured or enclosed in the certificate of the respondent was a "decision of an administrative character." He argued that it had not been shown that the certificate was given under an "enactment" within the meaning of that expression as set out in the Judicial Review Act s.3. Further, he said, to the contrary, the certificate was given under the Subsidy Act. He referred to the status of the respondent, the heading on the certificate, the wording of it and the consistency between that and s.8(3) of the Subsidy Act. He submitted that any "decision" which had been made was not one which was referred to in s.5 of the Judicial Review Act.

Supporting the objection to competency, he submitted that the respondent, by delegation, was an authorised officer within the meaning of s.3 of the Subsidy Act; that the decision sought to be reviewed was of "State character"; that it was not made under an enactment in the sense of an Act of the Commonwealth Parliament or an instrument made under such an Act but was made under the Subsidy Act. He submitted that the certificate by its heading indicated the intention of the certifier; that the substance of the document confirmed it was an exercise of power under s.8(3) of the Subsidy Act; that it was understandable that the certifier would rely on that section and Act since the consequential provisions of s.10 facilitated recovery; whereas there is no provision in the Scheme corresponding to s.10. He referred to The Australian National University v. Arthur Lee Burns (unreported decision of the Full Court of the Federal Court dated 8 October 1982); Evans v. Friemann (1981) 35 ALR 428; The King v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 C.L.R. 141 (Barrett v. Opitz); Felton v. Mulligan (1971) 124 C.L.R. 367 (Felton). He argued that simply because one might look to the Scheme for guidance as to the basis of repayment, the matter was not thereby "under" a law of the Commonwealth.

Counsel for the applicant submitted that the decision was one made under an Act of the Commonwealth Parliament or under an instrument (being the Scheme) made under an Act of the Commonwealth Parliament i.e. the Petroleum Products Act. He referred to the Subsidy Act s.2, the definition of Scheme in s.3, s.4, providing for payment of amounts ascertained in accordance with the Scheme. He submitted one looks to the Scheme to ascertain how the amounts are payable and to ascertain the quantum of the subsidy. It followed that one should examine the Scheme to find out how payments are made and the circumstances wherein an officer may certify an amount is repayable; the Subsidy Act could not stand on its own but needed the Petroleum Products Act to give it "fulfilment". He argued that it mattered not that the authorised officer headed a certificate with the title of the Subsidy Act; the ultimate power is vested in the Scheme. He submitted the Certificate made by the respondent was made not under s.8 of the Subsidy Act but, as I understand him, by reference to Clauses E1 and E2(5) of the Scheme; that overpayments could be recovered under "normal" provisions of the Common Law. He referred to South Australian Electricity Cold Stores Limited v. Electricity Trust of South Australia (1957) 98 C.L.R. 65. Referring to para.E2(5) he submitted that s.8(3) was almost a mirror image of words used in the Scheme; that respondent was performing duties imposed on him by both those sections. He referred to the judgment by Latham C.J. in Barrett v. Opitz (supra) at p.154. He submitted that the certificate owed its existence to Federal Law. As to "instrument" he referred to Stroud's Judicial Dictionary 4th Ed. p.1386; Hamblin v. Duffy (1981) 34 ALR 333 at 337.

I have not referred to all arguments of counsel.

The total legislation envisages the granting of "Financial Assistance" to the States; they, in turn, will be concerned with individual distributors. It is at that level that one might ordinarily expect to observe arrangements as to payment and repayment of appropriate amounts and, I suggest, "decisions" to be made therefor.

The certificate was one which the respondent was entitled to make pursuant to s.8(3) of the Subsidy Act. He said he made it "under" that section though I agree with applicant's counsel this does not end the matter. The certificate, "purported" to be under s.8, is, having regard to s.8(5), of significance. The wording of the certificate follows s.8(3), envisaging, no doubt, s.10. Probably any amount recovered would be within the meaning of "recoveries" in s.17 of the Subsidy Act and to be credited to the account to which that section refers. Then it will be brought into account as provided by the Scheme E7. I would add that a certificate which followed E2(5) would differ significantly from the s.8(3) certificate in that the former would state the opinion of the authorised officer rather than he is "satisfied" (s.8(3)) that an amount was not "payable" or exceeded the amount payable. And the certifier under E2(5) would certify that an amount was "recoverable" whereas the s.8(3) certificate will state as here that an amount is "repayable".

In resolving this matter, I have found most assistance from Barrett v. Opitz (supra) per Lathan C.J. at p.154 and Felton at p.388 per Windeyer J. and per Menzies J. though dissenting in the result at p.382.

In my opinion, any decision which is evidenced by the relevant certificate is not one made under an enactment within the meaning of s.3 of the Judicial Review Act. Further, though it is not necessary to say so, it was made under a State Statute, viz. the Subsidy Act.

The Orders I make are -

1. I uphold the objection as to competency.

2. The application will stand over generally to be mentioned on seven days' notice.

3. Either side will have liberty to apply on three days' notice.

4. Costs reserved.