Ralkon v Aboriginal Development Commission

[1982] FCA 161

Re: RALKON AGRICULTURAL COMPANY PTY. LIMITED
And: ABORIGINAL DEVELOPMENT COMMISSION
Re: ABORIGINAL DEVELOPMENT COMMISSION
And: RALKON AGRICULTURAL COMPANY PTY. LIMITED (1982) 69 FLR 328
Nos. G50 and G62 of 1981
Administrative Decisions (Judicial Review) Act 1977

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
SOUTH AUSTRALIA REGISTRY
Keely J.(1)

CATCHWORDS

Administrative Decisions (Judicial Review) Act, 1977 - notice of objection to competency on ground that applicant not a "person aggrieved" - whether applicant an "aboriginal body" - whether decision set out findings, references to evidence and reasons - interrelation of s.11(3) and s.13 of the Administrative Decisions (Judicial Review) Act considered - whether request "in accordance with" or "under" s.13(1) - whether "not entitled to make the request"

Administrative Decisions (Judicial Review) Act, s.5(1), s.11(1), s.11(3), s.11(4), s.13(1), s.13(4A), s.13(5).

Aboriginal Development Commission Act, s.3, s.4(1), s,8, s.27(1), s.24(1), s.28.

Administrative Law - Application for extension of time to apply for order of review of decision - Notice of objection to competency - Whether applicant was a "person aggrieved" - Whether applicant was entitled to request a statement under s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - Meaning of "Aboriginal body" - Observations concerning prescribed period under s. 11(3)(a) - Whether request was "made under" s. 13(1) - Meaning of provisions of s. 13(4A) - Criteria for Court to consider in extending time - Aboriginal Development Commission Act 1980 (Cth), ss 3, 4(1), 8, 24(1), 27(1), 28 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), 11(1), 11(3), 11(4), 13(1), 13(4A), 13(5).

HEADNOTE

Section 4(1) of the Aboriginal Development Commission Act 1980 (Cth) provides as follows:

"In this Act unless the contrary intention appears, 'Aboriginal body' means a body corporate -

(a) that is controlled, whether directly or indirectly, by Aboriginals; and

(b) the principal objects of which are conducive to the advancement of Aboriginals . . . . "

Section 28 of the Aboriginal Development Commission Act 1980 provides as follows:

"For the purposes of section 24, the Commission may acquire by agreement any

real or personal property, and may grant, sell, lease or otherwise make available

property so acquired to an Aboriginal or Aboriginals, or to an Aboriginal body, on

such terms and conditions (if any) as are determined by the Commission."

The Aboriginal Development Commission Act (Cth) 1980 repealed both the Aboriginal Land Fund Act 1974 (Cth) and the Aboriginal Loans Commission Act 1974 (Cth), and the Aboriginal Development Commission (the Commission) replaced the Aboriginal Land Fund Commission. On 23 March 1981 the Commission wrote to the Point McLeay Community Council (the Council) informing it of the Commission's decision to offer a lease of a property known as "Bartlett's Farm" to the Council.

On 23 March 1981 the Commission also wrote to the Ralkon Agricultural Company Pty Ltd (Ralkon), which had been established by the Council to manage the Council's farming interests, advising Ralkon of the Commission's decision to offer the lease to the Council and purporting to set out the reasons for its decision.

Subsequently, a lease was entered into between the Council and the Commission and the lease was registered but Ralkon continued to farm the property.

In August or September 1981 the Council gave Ralkon notice to quit the land farmed by Ralkon and, by notice of motion filed on 16 November 1981, Ralkon sought an order pursuant to s. 5 of the Administration Decisions (Judicial Review) Act 1977 (Cth) (the A.D.J.R. Act) that there be an extension of time for lodging an application for an order to review the Commission's decision, and Ralkon also made an application on the same day for such an order of review.

By notice of objection to competency filed on 1 December 1981 the respondent Commission objected to the jurisdiction of the Federal Court of Australia to try the application on the ground that the applicant was not a "person aggrieved" by the decision within the meaning of the A.D.J.R. Act. The Commission also sought an order that Ralkon was not entitled to request a statement in writing under s. 13(1) of the A.D.J.R. Act and both matters were heard together by consent.

Held: (1) A corporate body does not fall within the words of the definition of "Aboriginal body" (in s. 4(1) of the Aboriginal Development Commission Act 1980) where none of its formal objects can be said to tend in a positive way towards the advancement of Aboriginals; it is not sufficient if the objects are simply not inconsistent with their advancement.

(2) Ralkon was a "person aggrieved" within the meaning of the Administrative Decisions (Judicial Review) Act 1977. Accordingly, the objection to competency should be dismissed.

Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437, per Ellicott J.; Ricegrowers Co-Operative Mills Ltd v. Bannerman and Trade Practices Commission (1981) 56 FLR 443 at 447, per Bowen C. J. and Franki J.; Vickers v. Minister for Business and Consumer Affairs (1982) 43 ALR 389; Doyle v. Chief of General Staff (1982) 42 ALR 283, followed.

(3) The letter of 23 March 1981 which was sent to Ralkon by the Commission did not contain sufficient detail to comply with the requirements of the provisions of s. 11(3)(a) of the Administrative Decision (Judicial Review) Act 1977.

Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196, referred to.

(4) Ralkon's request was not "made under" s. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 - in the sense used in s. 13(4A)(a) of that Act.

Per Keely J. - Sections 13(1) and 13(5) must be read together, and, so construed, s. 13(5) imports into s. 13(1) a requirement that the request for reasons must be made within twenty-eight days after the day on which the decision was furnished in writing to the applicant. Accordingly, the "right" to request reasons, contained in s. 13(1), expires after twenty-eight days.

(5) The Aboriginal Development Commission was not "a person to whom a request is made under" s. 13(1) in the sense in which those words were used in s. 13(4A)(a) of the Act and consequently the Commission's application would be dismissed.

Per Keely J. - Section 11(1)(c) of the Act does not fetter the court's discretion in deciding whether to extend the time and it does not in terms place any onus of proof upon the applicant although . . . it would be clearly wrong for the court to ignore the "prescribed period" and to grant extensions without cause. However, it would also be wrong for the court to require an applicant to establish special circumstances in support of its application . . . the court should not simply apply automatically the principles applicable to delay by a person seeking a prerogative writ.

(6) On consideration of all the circumstances of the instant case, including the conduct of the parties preceding the decision and the history of the discussions, the applicant Ralkon would be granted further time for the lodging of its application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the Commission's decision.

HEARING

Adelaide, 1982, February 25, 26; August 5. #DATE 5:8:1982

APPLICATION.

The applicant company sought an order pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), that there be an extension of time for the lodging of an application for an order to review, and a decision applied for an order of review. The respondent Commission filed a notice of objection to competency, and sought an order that the applicant company was not entitled to request a statement in writing under s. 13(1) of that Act. Both matters were heard together by consent.

J. R. Mansfield, for the applicant.

B. M. Debelle, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Genders Wilson & Partners.

Solicitors for the respondent: Finlaysons.

J.D.W.

ORDER

Orders accordingly.

JUDGE1

These matters concern a dispute between the Ralkon Agricultural Company Pty. Limited (Ralkon) and the Aboriginal Development Commission (the Commission) in relation to a property in South Australia known as "Bartlett's Farm". Ralkon was established by the Point McLeay Community Council (P.M.C.C.) in 1975 with the support of the Department of Aboriginal Affairs.

In October 1975 a body known as the South Australian Aboriginal Lands Trust owned two parcels of land upon which farming operations were conducted by the Point McLeay aboriginal community. It was proposed at this time that the Aboriginal Land Funds Commission (A.L.F.C.), a Commonwealth body established under the Aboriginal Land Fund Act 1974 (A.L.F. Act) - since repealed - should purchase an additional property in the area known as "Bartlett's Farm".

It was claimed by Mr. Mansfield, of counsel, for Ralkon that the A.L.F.C. acting under the A.L.F. Act gave a "grant of interest" in the land known as "Bartlett's Farm" to Ralkon in 1975. Mr. Debelle, of counsel, for the A.D.C. disputed the existence of such a grant but it was common ground between the parties that, whatever the formal position may have been with respect to the land, Ralkon has at all relevant times farmed "Bartlett's Farm" (together with the two other parcels of land mentioned above). Ralkon has also paid the rates and taxes and has maintained and improved the lands.

Evidence was given of correspondence between the A.L.F.C. and Ralkon concerning "Bartlett's Farm". As the letters were relied on by both parties I shall extract the relevant parts. A letter dated 8 March, 1979 from the A.L.F.C. to Ralkon included the following:-
"When the Aboriginal Land Fund Commission purchased "Bartlett's Farm" it proceeded to make a "Grant of Interest" to Ralkon to enable it to occupy and utilise the land. Under Section 20 of the Aboriginal Land Fund Act 1974 upon making a formal "Grant of Interest" your company assumed responsibility for the payment of rates, and other charges associated with operating the property i.e. electricity, water etc. The Commission is not responsible for the day to day operations of the property.

The Aboriginal Land Fund Commission currently holds title to Bartlett's Farm but steps are being taken to prepare a standard agreement which will formalise communities responsibilities in having "Grants of Interest" and allow the Commission to transfer titles to yours and other groups following incorporation under the Aboriginal Councils and Associations Act. The Commission has been directed to hold titles to land purchased by it for communities until communities incorporate under the Act so as to ensure land is not disposed of."
A letter dated 16 October, 1979 from the A.L.F.C. to Ralkon included the following:-
"In regard to the transfer of title to Bartletts Farm it is likely that the Commission will take steps to effect this transfer pending amendment to Section 78 of the Aboriginal Councils and Associations Act. The Commission will then formally approve a Grant of Interest under Section 20 (1) (a) of its Act to the Pt. McLeay Community, who will hold title to the property, with the Ralkon Agricultural Company continuing to manage and operate the same. . . "
Ralkon by letter to A.L.F.C. dated 5 November, 1979 said:-
"I am in receipt of your 39/75 of 16th Oct 1979. Many thanks.

As regards the transfer of title of 'Bartlett's Farm' I would refer you to yours of 8th March 1979. You informed us then that a formal Grant of Interest under Section 20 (1)(a) had already been given to this Company. No doubt you had inadvertently overlooked this."
In a letter dated 21 December, 1979 the A.L.F.C. replied:-
"I refer to your letter of 5 November 1979 concerning the transfer of title to Bartlett's Farm.
You will recall that in my advice of 16 October 1979 I indicated that it is likely that the Commission will take steps to effect the transfer of the title pending amendment to Section 78 of the Aboriginal Councils and Associations Act. The Commission will then formally approve a Grant of Interest under Section 20 (1) (a) of it's Act to the Point McLeay Community, who will hold title to the property, with the Ralkon Agricultural Company continuing to manage and operate it.

By taking this course of action the Commission would be acting in accordance with its original intention when the initial application to purchase the property was made on behalf of the Point McLeay Community Council in July 1975. It was at that time also intended that the South Australian Aboriginal Lands Trust would accept title to the property and in doing so would reach agreement with the Point McLeay Community Council to arrange a suitable lease for the operating company (Ralkon Co. Pty. Ltd.) over the property. As this arrangement was not proceeded with the Commission accepted responsibility for holding title to the property and subsequently approved a Grant of Interest under it's Act to the Ralkon Company. As mentioned, this course of action was contrary to the Commission's original intention; therefore the Commission will rectify the situation, by rescinding the present Grant of Interest to the Ralkon Company and approving a new Grant of Interest to the Point McLeay Community Council Inc. who will ultimately accept responsibility for holding title to the property.

Your Company will of course continue to operate and maintain the land in accordance with the wishes of the Pt McLeay Community Council and Ralkon Directors."
On 13 May, 1980 the A.L.F.C. wrote to the P.M.C.C. in the following terms:-
"This letter is to inform you that the Commission, at it's 25th meeting, formally agreed to transfer the existing Grant of Interest vested in the Ralkon Agricultural Company to the Pt. McLeay Community Council Incorporated.

On 21 December 1979 I wrote to the Chairman of the Ralkon Company outlining the Commission's intentions on this matter. I indicated that the Pt. McLeay Community Council was considered to be the appropriate body to ultimately hold title to Bartletts Farm, and that the Ralkon Company, a Corporation which had been established by the community would no doubt continue to operate and maintain the property in accordance with the wishes of your Council and the Ralkon Directors.

In order that your organisation understands it's responsibilities over the management aspects of the property I have listed a number of points which should clarify the situation.

(a) Land Titles

The A.L.F.C. will hold title to the property until such time as the Pt. McLeay Community Council becomes incorporated under the Aboriginal Councils and Associations Act, at which time the land title can be transferred to your organisation. . .

(d) This transfer of a Grant of Interest to your organisation now formalises the occupation and use of the property referred to as Bartletts Farm by the Pt. McLeay Community Council Incorporated. . . "
On the 23 March, 1981 the Aboriginal Development Commission, (which had replaced the A.L.F.C.) wrote to P.M.C.C. informing it of the decision to offer a lease of "Bartlett's Farm" to the P.M.C.C. for a period of 99 years as follows:-
"I am writing to convey to you the decision of the Aboriginal Development Commissioners in respect to the property known as Bartlett's Farm and in response to your letter of 21 November, 1980 seeking a lease over Bartlett's Farm.

2. In considering the Council's request, the Commissioners noted that the Council had established in October 1975, the Ralkon Agricultural Company Pty Ltd (Ralkon) to manage its farming interests. The Commissioners considered at the same time requests by Ralkon for title to the land as conveyed to the Commission by letter dated 7 July 1980, from Ralkon's consultative committee. The Commissioners also had in mind at the time a report of the unsuccessful attempt by the agricultural consultancy firm of Mr David Price to inspect the property in December 1980.

3. The outcome of the Commissioners' consideration is that they have decided to offer the Council a 99-year lease to Bartlett's Farm at a nominal rental subject to normal lease conditions and in particular to the following conditions:- . . . " (The letter then listed the conditions.)
On 23 March 1981 the Commission also wrote to Ralkon informing it of the decision as follows:-
"I am writing further to earlier correspondence to inform the Ralkon Agricultural Company that the Commissioners have finally resolved their position in respect of Bartlett's Farm.

The Commissioners, having regard to the facts that

(a) Bartlett's Farm was purchased at the request of the Point McLay Community Council for the benefit of the entire Point McLeay Community,

(b) Ralkon was established by the Point McLeay Community Council Inc. to manage the Council's farming interest, and

(c) the Council currently holds a grant of interest in the property from the Commission,

have decided to offer the Council a formal lease of the property."

The Aboriginal Development Commission Act 1980 (the A.D.C. Act) repealed the A.L.F. Act 1974 and the Aboriginal Loans Commission Act 1974 and established the Commission. The A.D.C. Act provides as follows:-
Section 3. "The purpose of this Act is to further the economic and social development of people of the Aboriginal race of Australia and people who are descendants of indigenous inhabitants of the Torres Strait Islands and, in particular, (as a recognition of the past dispossession and dispersal of such people) to establish a Capital Account with the object of promoting their development, self-management and self-sufficiency."

Section 8. "The functions of the Commission are, subject to and in accordance with this Act, to further the economic and social development of Aboriginals and, in particular, but without limiting the generality of the foregoing -

(a) to assist communities and groups of Aboriginals to acquire land;

(b) to assist Aboriginals to engage in business enterprises;

(c) to assist Aboriginals to obtain finance for housing and for other personal needs, and to provide such finance;

(d) to assist in the training of Aboriginals in relation to matters related to the functions of the Commission;

(e) to administer and control the Capital Account;

(f) to give advice and make recommendations to the Minister with respect to the furtherance of the economic and social development of Aboriginals; and

(g) such other functions in connection with the furtherance of the economic and social development of Aboriginals as the Minister determines by notice in writing given to the Commission."

Section 27(1). "The Commission may acquire by agreement any interests in land or personal property and may, on such terms and conditions as it determines, grant any interests so acquired, or any interests derived from interests so acquired, to Aboriginal land trusts for the object of enabling Aboriginals to occupy land or to Aboriginal corporations for the object of enabling members of those corporations to occupy land."

Section 24(1). "For the purposes of enabling Aboriginals to engage in business enterprises, moneys of the General Fund may, subject to sub-section (3), be applied - . . . (d) in the acquisition of property in pursuance of section 28; . . . ".

Section 28. "For the purposes of section 24, the Commission may acquire by agreement any real or personal property, and may grant, sell, lease or otherwise make available property so acquired to an Aboriginal or Aboriginals, or to an Aboriginal body, on such terms and conditions (if any) as are determined by the Commission."

The decision to grant a lease to the P.M.C.C. met with opposition from both Ralkon and the P.M.C.C. . On 30 March 1981 the P.M.C.C. passed a resolution "that all agreements entered into by the previous Council with the A.D.C. be declared null and void". The "offer of title" to the P.M.C.C. was also rejected on 12 May 1981 by a resolution of P.M.C.C. which also resolved "that the land known as Bartlett's Farm be vested in" Ralkon.

At an extraordinary meeting of the P.M.C.C. on 27 May 1981 it was decided that the Chairman of the P.M.C.C. and the Chairman of Ralkon should "go immediately to Canberra to request the A.D.C. to transfer the title to the South Australian Aboriginal Lands Trust". Their meeting with A.D.C. occurred on 29 May 1981.

However, subsequently, a lease between the P.M.C.C. and the Commission was entered into, lodged for registration on 25 September, 1981 and registered. Ralkon, however, continued to farm the property. By an undated letter received by Ralkon in August or September 1981 the P.M.C.C. gave Ralkon notice to quit the land farmed by Ralkon. There then followed disputes over the property and proceedings were commenced in the South Australian Supreme Court.

By a notice of motion dated and filed on 16 November, 1981 Ralkon sought an order pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the A.D.J.R. Act) that there be an extension of the time for lodging an application for an order to review the decision of the Commission that a lease of certain property known as "Bartlett's Farm" be granted to P.M.C.C. and on the same day also made an application for such an order of review.

By a notice of objection to competency filed on 1 December, 1981 the respondent Commission objected "to the jurisdiction of this court to try this application" on the ground that "the applicant is not a person aggrieved by the decision" within the meaning of the A.D.J.R. Act and on another ground which was not pursued. The notice of objection to competency in its original form contended that the applicant was not a person aggrived because the respondent was not an "Aboriginal land trust" nor an "Aboriginal corporation" within the meaning of the A.D.C. Act and therefore not eligible to receive a grant of interest in land under s.27 (1) of the A.D.C. Act. On 19 February 1982, however, the applicant's solicitors wrote to the respondent's solicitors stating that the applicant qualified for a grant of interest, not as an aboriginal land trust or as an aboriginal corporation under s.27 (1), but as an Aboriginal body under s.28 (1). It was common ground that this was the only ground on which the applicant claimed to be eligible under the Act for the grant of an interest.

In matter No. G62 of 1981 the respondent Commission seeks an order that Ralkon was not entitled to request a statement in writing under s.13 (1) of the A.D.J.R. Act. It was agreed by the parties that both matters should be heard together.

Section 5 of the A.D.J.R. Act provides :-
Section 5. "(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:" (The section then lists various grounds.)

It was submitted by Mr. Debelle for the Commission that unless Ralkon could establish that it is "an Aboriginal body" within the meaning of the A.D.C. Act, it would be ineligible to receive a grant of an interest in land under s.28 of the A.D.C. Act and any application for an extension of time to lodge an application for an order to review should be dismissed both because the applicant does not have standing to bring the action and because any order made by the Court would be futile.

Section 4(1) of the A.D.C. Act 1980 provides that, unless the contrary intention appears, "Aboriginal body" means a body corporate -

(a) that is controlled, whether directly or indirectly, by Aboriginals; and

(b) the principal objects of which are conducive to the advancement of Aboriginals.

There are thus three criteria that must be established :

( i) that Ralkon is a corporation;

( ii) that Ralkon is controlled by aboriginals; and

(iii) that the principal objects of Ralkon are conducive to the advancement of aboriginals.

It is common ground that Ralkon is a corporation. On the question of control Mr. Mansfield relied upon affidavit evidence that the directors of Ralkon are all of aboriginal descent and that all the persons holding shares in Ralkon are persons of aboriginal descent. Mr. Debelle, for the Commission, did not dispute this evidence but submitted that it did not constitute "control" within the meaning of the Act. He argued that, although aboriginals do at present control the company in the sense that the shareholders with voting control are all aboriginals or of aboriginal descent, it is necessary for Ralkon to show " . . . not only a de facto control, a present-day control, but a satisfaction that that will be the position in the future". Mr. Debelle submitted that it was essential that the articles of association of the Company provided a guarantee that the body corporate would continue to be controlled by aboriginals and it was common ground that the Articles of Ralkon did not provide such a guarantee. However, I am unable to accept Mr. Debelle's submission that it is necessary to establish that the body corporate will continue to be controlled by aboriginals. I consider that Ralkon is and was at all relevant times a body corporate directly controlled by aboriginals.

As to the question of whether the principal objects of Ralkon "are conducive to the advancement of Aboriginals", paragraph 2 of the memorandum of association of Ralkon states that the objects for which the company is established include:
"(a) To carry on in all respects the business of pastoralist farmer grazier husbander at such place or places and in such manner as the company shall think fit.

(b) To do all things necessary and expedient for the proper full and effectual carrying out of all of the objects of the company."

Mr. Mansfield conceded that the memorandum "does not refer in any place specifically to aboriginal purposes". He submitted that the words of the section, namely, that the objects are conducive to the advancement of aboriginals are satisfied because, "unless there is something which jars in the memorandum or articles as to the role of the company in relation to the advancement of aboriginals, any commercial enterprise generally, . . would be seen as conducive to the advancement of aboriginals". I am unable to accept that submission. Mr. Debelle relied upon the Shorter Oxford English Dictionary, which defines "conducive" as meaning "conducing or tending to (a specified end); fitted to promote or subserve".

Mr. Mansfield also submitted that the words "principal objects" were not intended to restrict the Court to looking simply at the objects clause in the company's memorandum of association but that the court should consider "the memorandum and articles . . the way in which it was incorporated . . the shareholding and the nature of the shareholding . . ". He relied upon new articles, which were inserted in 1979, which gave certain rights to holders of residents preference shares who were required to be resident on Point McLeay reserve and to be of aboriginal descent. However I consider that his submission fails to give sufficient weight to the fact that the definition of "Aboriginal body" in s.4(1) of the A.D.C. Act incorporates two specific requirements (a) that the body be controlled by aboriginals, and (b) that its principal objects are conducive to their advancement. It thus requires both "control" in practice and the existence of "principal objects" which are "conducive to the advancement of Aboriginals".

My present view is that a corporate body does not fall within the words of the definition of "Aboriginal body" where none of its formal objects can be said to tend in a positive way towards the advancement of aboriginals; it is not sufficient if the objects are simply not inconsistent with their advancement.

However, Mr. Mansfield, in submitting that Ralkon was a person aggrieved, relied upon four bases which he summarized in his written reply as follows :-
"1. That Ralkon had an interest in the land in any event, namely the grant of an interest to it by the A.L.F.C. pursuant to Section 20 of the A.L.F. Act.

2. That its interests are adversely affected in that Ralkon itself sought (prior to the decision complained of) to have the land transferred to it by the A.D.C. under the A.D.C. Act or in anticipation of that Act being passed.

3. That it had interests in the land potentially adversely affected by the decision, namely its right or interest in the occupation of the land, which has persisted since about 1975 and which (on the correspondence) was an interest intended by the A.D.C. to continue, and that those interests have in fact been adversely affected by the P.M.C.C. having the right to, or purporting to have the right to, eject it from the land and having in about September, 1981 sought to eject it; and

4. That its interests were adversely affected in that it, and its shareholders on the invitation in part of the then Minister for Aboriginal Affairs or his representatives, had invited members of the P.M.C.C. on a voluntary basis to subscribe to Ralkon upon a holding out that their interest would then be recognised through Ralkon as an entitlement to continue to develop the land".

The application for a review seeks an order quashing the decision and referring the matter to the respondent Commission for further consideration. It does so on grounds which include contentions "that the person who purported to make the decision did not have jurisdiction to make the decision", "that the decision was not authorised by the enactment" and "that the making of the decision was an improper exercise of the power conferred by the enactment".

In Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 Ellicott J. examined the question of the meaning of the expression "a person who is aggrieved" in the A.D.J.R. Act and said (at p. 79) :-
"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of a decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases however the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf. Robinson v. Western Australian Museum (1977) 138 C.L.R. 283)".

I agree, with respect, with the opinion there expressed by Ellicott J. - see also Bowen C.J. and Franki J. in Ricegrowers Co-Operative Mills Ltd. v Bannerman and T.P.C. (1981) 38 A.L.R. 535 at pp. 539-540, Morling J. in Vickers v Minister (17/5/1982 - unreported) and Doyle v Chief of General Staff per Fisher J. (8/7/1982 - unreported). I apply the principle there enunciated to the matters relied upon by Mr. Mansfield in the four matters summarized in his written reply, which are set out earlier - and in particular the contention that Ralkon's interests have been adversely affected by P.M.C.C. "purporting to have the right to eject it from the land and having in about September 1981 sought to eject it". In my opinion Ralkon is a "person aggrieved" within the meaning of the A.D.J.R. Act. Accordingly the objection to competency should be dismissed.

It is necessary to consider whether Ralkon requires an extension of time to make its application for an order of review - Ralkon having submitted that its application for such an extension is made for greater caution. Section 11(1)(c) of the A.D.J.R. Act provides, inter alia, that an application to the Court for an order of review shall be lodged "within the prescribed period or within such futher time as the court . . . allows".

Section 11(3) and (4) deal with the question of "prescribed period". They provide as follows:
"(3) The prescribed period for the purposes of paragraph (1) (c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after -

(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

(i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under sub-section 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of a decision is furnished to the applicant - the day on which the statement is so furnished.

(ii) if the applicant, in accordance with sub-section 13(1), requests the person who made the decision to furnish a statement as mentioned in that sub-section - the day on which the statement is furnished, the applicant is notified in accordance with sub-section 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under sub-section 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with sub-section 13A(3) or 14(3) that the statement will not be furnished; or

(iii) in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant."

"(4) Where -

(a) no period is prescribed for the making of applications for orders of review in relation to a particular decision; or

(b) no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision;
the Court may -

(c) in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or

(d) in a case to which paragraph (a) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to,

if the Court is of the opinion that the application was not made within a reasonable time after the decision was made."
Section 13(1) provides:-
Section 13. "(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the persons who made the decision, request him to furnish a statement in writing 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."

Both s.11(3)(a) and s.13(1) refer to documents containing "the findings on material questions of fact, . . the evidence or other material on which those findings were based and . . the reasons for the decision" which documents I shall refer to simply as "the reasons". Section 11(3) provides a number of different tests in order to ascertain the "prescribed period". If the decision sets out in writing "reasons" for the decision the prescribed period ends 28 days after the day on which that decision is furnished to him (s.11(3)(a)).

If the decision does not set out "reasons" but a statement in writing giving "reasons" is later furnished to the applicant voluntarily by the decision maker (i.e. without a request by the applicant under s.13(1)), the prescribed period ends 28 days after the day on which the statement in writing giving "reasons" is furnished to him (s.11(3)(b)(i)).

If the applicant does request reasons "in accordance with" s.13(1), then the prescribed period ends at the expiration of 28 days from one of four possible events (s.11(3)(b)(ii)) namely 28 days after the day on which -

- the statement containing "reasons" is furnished; or

- the applicant is notified in accordance with s.13(3) that he was not entitled to make the request; or

- the Court makes an order under s.13(4A) declaring that the applicant was not entitled to make the request; or

- the applicant is notified in accordance with sub-section 13A(3) or 14(3) that the statement will not be furnished.

If none of the foregoing apply, then the applicant has 28 days from the day on which the decision is furnished to him (s.11(3)(b)(iii)).

On the facts of the present case it is not necessary to consider s.11(3)(b)(i).

Section 11(3)(a)

Mr. Debelle submitted that Ralkon does require an extension of time because time expired pursuant to s.11(3)(a). He claimed that the letter dated 23 March, 1981 from the A.D.C. to Ralkon set out the findings on material questions of fact, referred to the evidence or other material on which the findings were based and gave the reasons for the decision and that time for Ralkon therefore expired 28 days after that letter was furnished to Ralkon.

Mr. Mansfield submitted that s.11(3)(a) intended a full and complete statement to be furnished - relying on Palmer v Minister for Australian Capital Territory (1978) 23 A.L.R. 196. In that case the Administrative Appeals Tribunal (Fisher J. presiding) considered words in s.28 of the Administrative Appeals Tribunal Act 1975 which are the same as those appearing in s.11(3)(a). It held (at p. 206) that the provision ". . . certainly intended that the citizen should be fully informed" and that "the reasons, when properly given, ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further . . .". In reaching that conclusion the Tribunal relied on statements by Megaw J. in Re Poyser & Mills Arbitration (1964) 2 Q.B. 467 at pp. 477-478, statements in Iveagh v Minister of Housing and Local Government (1964) 1 Q.B. 395 by Lord Denning at p. 410 and by Russell L.J. at p. 405 and by James L.J. in Elliott v London Borough of Southwark (1976) 2 All E.R. 781 at p. 791.

In its letter of 23 March, 1981 the A.D.C. gave three "reasons" for its decision:-
"(a) Bartlett's Farm was purchased at the request of the Point McLeay Community Council for the benefit of the entire Point McLeay community,

(b) Ralkon was established by the Point McLeay Community Council Inc. to manage the Council's farming interests, and

(c) the Council currently hold the grant of interest in the property from the Commission."
In my opinion the letter of 23 March, 1981 does not contain sufficient detail to comply with s.11(3)(a) (cf. Fisher J. in Palmer's Case (supra)). The letter is altogether too cryptic. I accept Mr. Debelle's submission that the one statement may perform the double function of both setting out a finding of fact and of giving a reason. However, in my opinion the letter of 23 March, 1981 to Ralkon did not set out the findings, reasons and other matters referred to in s. 11(3)(a).

Section 11(3)(b)(ii)

Mr. Mansfield submitted that the only relevant provisions of s.11 for the purposes of this case are contained in sub-section 3(b)(ii) and that time has not expired because : (1) the application was lodged within 28 days of being notified (under s.13(3)) that it was not entitled to make a request for reasons under s.13 and also because (2) the application for reasons, having already been made, was made before this Court could order under s.13(4A) that the applicant is not entitled to make the request. Mr. Mansfield submitted that a letter, dated 24 November, 1981, from Ralkon's solicitors to the solicitors for the A.D.C. constituted a request for a statement within the meaning of s.13. Omitting matters not relevant here it stated:-

"Our client is a person who is entitled to make application to the Court under Section 5 of the Administrative Decisions Judicial Review Act in relation to this decision made by the Aboriginal Development Commission. Pursuant to Section 13 of that Act, our client hereby requests that you furnish it with a statement, in writing, setting out any findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision of the Commission to grant the lease of the Bartletts Farm property to the Point McLeay Community Council and not to our client."

Mr. Mansfield submitted that the letter dated 22 December, 1981 to Ralkon's solicitors constituted a notice in writing within the meaning of s.13(3) and s.11(3)(b)(ii) that Ralkon was not entitled to make the request. Omitting matters not relevant here it stated:-
"In view of the fact that the letter dated 23rd March 1981 sets out the terms of the decision in writing and that your client's request for reasons was not made within twenty eight days of 23rd March 1981 your client is not entitled to make the request pursuant to the provisions of section 13(5) of the Administrative Decisions (Judicial Review) Act. In addition your client is not an Aboriginal corporation as defined by the Aboriginal Development Commission Act and is not therefore a person aggrieved who can bring an application under the Administrative Decisions (Judicial Review) Act. The Commission declines to provide the statement requested.

This letter confirms an intimation already given by Mr. Debelle as counsel to Mr. Mansfield, counsel for your client, during the preliminary hearings before Mr. Justice Fisher. We note that Mr. Justice Fisher has indicated that the question whether your client is entitled to apply for reasons will be heard at the same time as the other matters. We think it desirable that there ought to be a formal Application on the file to deal with the matter and accordingly our client is preparing an application pursuant to section 13(3) of the Administrative Decisions (Judicial Review) Act. We will serve that application within the next few days. We take this course in order that there should not be any procedural matter outstanding when these matters all come on for hearing."

Mr. Mansfield conceded that if these arguments were correct in law it would follow that Ralkon or any other applicatn may, under the Act, apply for reasons at any time, no matter how long after the decision is made. He submitted that no time is fixed within which reasons may be requested under s.13(1) and that s.11 (in part) "ties" the 28 day period to a refusal to supply reasons or to an order of the Court under s.13(4A).

Mr. Debelle submitted that the Court should not construe the Act in this way and that ". . . if the applicant seeks to have the benefit (of) section 13 it should institute that procedure first and not after it has made its application, so the rules governing time when an application is made must have regard to what has transpired at the time the application is made, and not after". He submitted that the prescribed period under s.11 is to be considered as at the date of the application, which was made on 16 November, 1981. A request for reasons not having been made until 24 November, 1981, Mr. Debelle submitted that s.11(3)(b)(ii) has no application.

It is, of course, necessary to read the relevant part of s.11(3)(b)(ii) together with the provisions of s.13 of the Act. Section 11(3)(b)(ii) provides that, "if the applicant in accordance with s.13(1) requests" a statement of reasons, the 28 day period will run from the day on which "in accordance with sub-section 13(3)" he is notified he "was not entitled to make the request".

Section 13(5) provides:-
"(5) A person to whom a request for a statement in relation to a decision is made under sub-section (1) may refuse to prepare and furnish the statement if -

(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request - the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or

(b) in any other case - the request was not made within a reasonable time after the decision was made,

and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished."

In my opinion s. 13(1) and 13(5) must be read together and, so construed, s. 13(5) imports into s.13(1) a requirement that the request for reasons must be made within 28 days after the day on which the decision was furnished in writing to the applicant. Accordingly, the "right" to request reasons, contained in s.13(1), expires after 28 days. Because his right to request reasons expires at the expiration of 28 days from the date on which the decision is furnished, it follows that the request can only be made "in accordance with sub-section 13(1)" - in the sense in which those words are used in s.11(3)(b)(ii) - if it is made within that period. Accordingly, in my opinion the letter dated 24 November, 1981 was not capable of constituting a request for a statement "in accordance with" s.13(1) (when read with s.13(5)) because the request was not made within 28 days of the decision being furnished in writing to the applicant - namely, within 28 days from 23 March, 1981.

Section 13(4A) states -
"The Court may, on the application of

(a) a person to whom a request is made under sub-section (1); or

(b) . . . . ,

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request".

For the reasons already given in considering whether Ralkon's request, was made "in accordance with" s.13(1) - in the sense used in s.11(3)(b)(ii) - in my opinion it was not "made under" s.13(1) - in the sense used in s.13(4A)(a). Section 13(4A) confers, upon a person to whom a request for "reasons" has been made under s.13(1), a right to make an application for "an order declaring that the person . . . was not entitled to make the request". In my opinion such a declaration can only be made if the Court is satisfied that the person requesting "reasons" did not fall within the class of persons entitled to request reasons, as defined by s.13(1) (i.e. "a person who is aggrieved" within the meaning of s.5). I consider that, properly construed in its context, s.13(4A) does not confer a right to seek an order declaring that a person, who does fall within the class of persons so entitled, is no longer entitled to seek reasons by reason of the expiration of 28 days after the day on which the decision was furnished. (s.13(5)(a)).

In this connexion it should be noted that s.13(3) gives, to a person to whom a request for "reasons" has been made, a right to give notice in writing that in his opinion the applicant is not entitled to make the request for reasons. In my opinion this sub-section is referring only to a notice in writing of an opinion that he is not entitled to reasons because he does not fall within the class of persons entitled under s.13(1) to request reasons (i.e. "a person who is aggrieved"). Section 13(3) does not confer a right upon that person to give a notice in writing that in his opinion the person making the request for "reasons" is not "entitled" to make the request in the sense that he is no longer "entitled" to seek reasons because he is out of time. If he has in fact formed such an opinion (that the request for reasons is out of time) then his rights are governed by a different sub-section (s.13(5)) which gives him the right to refuse to prepare and furnish reasons. Under s.13(5) he may refuse "reasons" to a person who is "entitled" to seek reasons in the sense that he falls within the class of persons entitled - as defined in s.13(1) - but who has failed to request reasons within 28 days upon the day on which the decision was furnished to the person requesting reasons.

It follows that the Aboriginal Development Commission is not "a person to whom a request is made under" s.13(1) in the sense in which those words are used in s.13(4A)(a) and its application in matter No. G. 62 of 1981 is dismissed.

Having reached the conclusion that no other "prescribed period" is applicable, it follows that s.11(3)(b)(iii) - which applies "in any other case" - governs the matter and the limitation period was 28 days after the day on which the document setting out the terms of the decision was furnished to Ralkon (23 March, 1981). Accordingly, Ralkon's application for an order of review was lodged out of time and it is necessary to consider its application for an extension of time.

On this question Mr. Mansfield and Mr. Debelle both dealt in some detail with various factual matters relating to the history of the matter and in particular the alleged delay by Ralkon in bringing these proceedings. The factual material was contained in affidavits and documents and was not subject to cross-examination. As I have decided to exercise my discretion in favour of the applicant Ralkon by granting the extension of time sought, in my view it is undesirable that I should express views as to those factual matters including the time at which Ralkon knew of the decision having regard to the fact that there were directors common to Ralkon and P.M.C.C. and the role of solicitors in the matter - matters relied upon by Mr. Debelle.

Section 11(1)(c) does not fetter the Court's discretion in deciding whether to extend the time. It states that an application for an order of review may be lodged "within such further time as the Court (whether before or after the prescribed time) allows". It does not in terms place any onus of proof upon the applicant although plainly an application for an extension must be made and the Court will not grant it unless it considers that it is proper to do so. It would clearly be wrong for the Court to ignore the "prescribed period" and to grant extensions without cause but in my opinion it would also be wrong for the Court to require an applicant to establish special circumstances in support of its application.

I accept Mr. Debelle's submission that delay is relevant as are the reasons for delay and the conduct of the parties generally insofar as it bears upon the delay - including on-going negotiations as to the dispute. I do not consider that the Court should simply apply automatically the principles applicable to delay by a person seeking a prerogative writ. However, in all the circumstances of this case including the conduct of the parties preceding the decision of 23 March, 1981, and the history of the discussions, in my opinion the delay in the present case is not such that I should refuse the application.

I accept Mr. Debelle's submission that the rights of third parties are plainly relevant in considering whether to grant an extension of time but, on the material before me in this case, I accept Mr. Mansfield's submission in his written reply that "There is no suggestion that an innocent or an independent or unaware third party is in any way affected. I agree, with respect, with the words of Bray C.J. in Lovett v Le Gall (1975) 10 S.A.S.R. 479 at p. 485:-
"If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension".
That passage was quoted with approval by Fisher J. in Doyle's Case (supra).

Mr. Debelle also submitted that the Court should not grant an extension of time as any order in favour of the applicant would be futile. He submitted that the Commission "could not give a grant to Ralkon" and also that the Court could not "in any way remedy the register book" - citing Commonwealth v New South Wales 33 C.L.R. 1 and R. v Registrar of Titles 20 C.L.R. 379. However, assuming - without deciding - that those submissions as to the powers of the Commission and the Court are correct, I am not persuaded that other possible orders would be futile.

On an examination of the factual material and a consideration of the submissions made, I consider that this is a proper case in which to grant the application and I order that the applicant Ralkon have further time up to and including 16 November, 1981 for the lodging of its application under the Administrative Decisions (Judicial Review) Act 1977 for the order of review of the decision of the Aboriginal Development Commission made on 23 March, 1981.