Peninsula Anglican Boys School v Honorable Senator Susan Ryan, Minister for Education for the Commomwealth of Australia

[1985] FCA 381

3bl CATCHWORDS

ADMINISTRATIVE LAW - Judlcml renew - Extension of tlme for

maklnq of appllcatlon to revlew - Applicatlon In respect of

related declslons already before Court - Motlon to amend

Applicatlon so as to challenge validity of addltlonal

decisions and conduct - Distinction between the grant of leave

to permit challenge to decisions and conduct related only to

the position of the applicant and decisions of general

appllcation and affectlng other persons - Evldence that

general declsion has been used as a basis for decxsions

affectlng the particular cases of numerous other applicants.

Administrative Decisions (Judlclal Review) Act	1977 s.11(3)
NSW G.415 01 L984

PEEIINYULA ANGLICAN BOYS SCHOOL v THE HOItOURABLE SENATOR SUSAN

R Y W - MIEIISTEZ7 FOX EDUCATION FOP THE COMMONWEALTH OF ACTSTRALLA

Wilcox J.

Sydney

18 July 1985

1N THE FEDERAL COURT OF AUSTRALIA	J J
NEW SOUTH WALES DISTRICT REGISTRY	I No. 13.415 of 1984
I
GENERAL DIVISION	1

BETWEEN:

PENINSULA ANGLICAN BOYS

SCHOOL a school

conducted by the

Council f o r the

Promotion of Sydney

Anglican Diocesan

Schools

Applicant

Respondent

CORAM :	WILCOX J.
m:	l8 JULY 1985
PLACE :	SYDSI3NEY

I

MINUTE OF ORDERS

I

I	THE COURT IjI7DEF.S THAT:
L. The Appllcatlon 1s allowed lnsoiar as paragraphs Id)

and (er are concerned.

2 .

2 . Leave granted to the appllcant to flle an amended

application on the form attached to the affidavit ot

David Graham Charles dated 24 June 1985 wlth the

deletlon of paragraph ICI contained therem.

3 . Leave granted to the respondents to tile further

affidavits which they may desire to rely upon in the

light of this amendment within twenty-one (21) days

from today.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

I

IN THE FEDEkhL COURT OF BTJSTRALIA	J
I
NEW SOUTH blXES DISTRICT REGISTRY	I No. G.415 ot 1984
)
GENERAL DIVISION	1

BETWEEN: PENINSULA ANGLICAN BOYS

SCHOOL a school conducted by the Council for the

Promotion of Sydney

Anglican Diocesal

Schools

Applicant

Respondent

CORAM:	WILCOX J.
m:	18 JULY 1985
PLACE :	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

!

Thls is an appllcatlon to amend an applicatlon for

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review so as to expand the varlous decisions and conduct complamed of. By reason of the time when those events occurred, it 1 s necessary for the appllcant to obtaln leave of

I

2.

the Court under s.ll(31 of the Administrative Declslons

(Judlclal Renew) Act 1977 to make that amendment	at this
stage .

It appears that on 12 June 1984 the Minlster for

Educatlon refused an appllcatlon made by the applicant for a

capital grant to fund what was described as stage 2 of the

development of the Peninsula Anglican	Boys School at
Warrlewood.

The applicant sought a renew by the Minister of her

decision but this was unsuccessful, as notifled on 27 August

1984. On 29 November 1984 the original Appllcation was filed

In this Court. It was out of time and that circumstance	was
drawn to the applicant's attentlon.

The matter came before me on 14 February 1985 when I

was Informed by a sollcltor appearing on behalf of the

respondent Munster that no ob~ectlon was taken to the

extenslon of time for flllnq the appllcatlon. Accordlngly, by consent, 1 ordered that the time for flling an appllcation for

renew be extended up to and lncludlnq the date of fllmq the

Appllcatlon. I made certaln dlrectlons as to artldavlts and

they have been complled wlth and a hearing date has been

- . . . .. . - ..

fixed.

I

3 .

The current applicatlon seeks to expand the category

of declslons and conduct by addlng three addltional matters.

As the Appllcatlon stands It calls In questlon only declslons

of the Minlster, respectively of 12 June 1984 and 27 August

1984, that 15, the origmal decision which she made to refuse

the application for a grant and her declsion to refuse the

appeal made to her to reverse that decision.

By para.(c) of the proposed amended Application, the

applicants seek renew o t the conduct of the Minister in

glvlnq to the Commonwealth Schools Commission certaln

instructions on or about 16 May 1983. It appears that those

instructlons were in the form f guldelines Issued to the

Commission in respect of future funding decisions.

By paras.(d) and (e) the applicant challenges the

conduct of the Commlsslon andlor Its Chairman in actlng on the

s a d Instructions, givlng advlce to the Mlnister and the

recommendatlon of the Commissicm and/or Its Chairman made on

31 May 1984 that the appllcatlon for capltal grant be refused.

It seems to me that there are two separate questlons

Involved In the current appllcatlon. The flrst of these 1s

whether I should accede to the appllcatlon lnsoiar as It

permlts a dlrect attack on the conduct of the Minister In May

1983. The second 1s whether I should accede to the

4 .

application insofar as It relates to the conduct of the

Commonwealth Schools Commission In relatlon to the appllcation of this particular applicant in May 1984.

In relatlon to the first matter I have been informed

by senlor counsel for the appllcant that It wlll be part of

his client's case that the decisions made in respect of hls

client in 1984 are vitiated by adherence to the guidelines

given by the Minlster in 1983. He says, therefore, that it

will be necessary for the Court to conslder the legal validity

of those guidelines In determining the case even as presently

framed. Senior counsel for the respondent disputes that this

is a necessary consequence. I express no view about that

matter at this stage.

If it be correct, as the applicant contends, that the

proceedlngs as presently framed necessarily require the Court

to conslder the legal validity of the guldellnes, then there

1 s no necesslty to add para.(c) in order for the Court to

review the conduct	of the Minlster In relation to those
guidellnes.

If that assumptlon IS not correct and the effect of

para.tc1 would be to open up the validlty of the guldelines

!

generally, then it 1s my vlew that it would be an incorrect

exerclse of my dlscretion to permlt that course to be taken.

The reason that I say this 1s because there 1 s evldence filed

l

5.

by the Assistant Commissroner of the School Facilities Branch

of the Commonwealth Schools Commlsslon deposlng to the extent

of grants whlch have been made to varlous schools throughout

Australla, Inter alia, In the years 1983, 1984 and 1985. It

appears from that affldavlt that numerous decisions have been

taken affecting numerous schools by reference to those

guldelines. It would In my view be undesirable to permit at

this late stage, some two years later, the amendment of the

current Appllcatlon so as to permit an attack upon the legal

valldity of those guidelines. In the circumstances those

guidellnes should not be reviewed unless that is essential in

order to determine the proceedings as presently constituted.

As I say if thls is essential, then leave is not

required. If it is not essential then, in my view, leave

should not be granted. It will be for the partles to argue at

the hearlng itself the extent to which the Court 1s obllged to

conslder the valldity or the 1983 guldelines. I refuse the

Application Insofar as It relates to para.cc)	of the draft
amended Appllcation.

In respect of paras.(d) and (e) I think different

conslderations prevail. Firstiy those paragraphs are related

directly to the applicant's appllcation and do not seek to

challenge a general declsion whlch has ramlflcations for other

schools; secondly they relate to the conduct of the second

respondent, that is the Schools Commlssion leading up to the

6.

declsion which 1s attacked. It may very well be that the

conduct would in any event h to be examlned at the hearlng

In order to conslder the ground of attack	In the Application
as currently framed.

However, It 1s desirable that, if the Commisslon’s

conduct and recommendations are to be attacked as legally

Invalid, that the Commission itself be a party. I think it is

desirable for there to be an amendment addlng the Commlsslon

as a second respondent and making explicit what might

otherwise be impllclt by the addltlon of paras.(d) and (e). I

propose to allow the Application Insofar s those two

paragraphs are concerned. I grant leave to the appllcant to

file an amended application on the form attached to the

affidavit of David Graham Charles dated 24 June 1985 with the

deletion of paragraph (c) contained therem.

The applicant must pay the respondent’s costs of thls

application.

L certify that thls and the five (S)

precedlng pages are a true copy of

the Reasons for Judgment hereln of

his Honour Mr. Justice Wilcox.

~ _ -

Assoclate: ’ 7 7 ,

.

! _ .

7.

Counsel for the appllcant:

Mr B W Rayment Q C with

Mr A J Sullivan

Solicltors for the appllcant:

Messrs Allen Allen & Hemsley

Counsel for the respondent:

Mr D E Grieve Q C wlth

Mr C T Stevens

Solicitors for the respondent:

Australlan Government

Solicitor

Date(s) of hearing: July 18 1985

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