RE PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING; EX PARTE FREMANTLE ISLAMIC ASSOCIATION INCORPORATED [2003] WASC 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 252
Case No:	CIV:1718/2003	Heard:	2 DECEMBER 2003
Coram:	PULLIN J	Delivered:	17/12/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Order nisi discharged
Category:	A
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Parties:	FREMANTLE ISLAMIC ASSOCIATION INCORPORATED PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING
Catchwords:	Administrative law Prerogative writs or orders Application for writ of certiorari to quash decision of respondent cancelling the incorporation of the applicant Whether donee of power may act via an agent Whether agent must act in the name of the donee Doctrine of administrative necessity
Legislation:	Associations Incorporation Act 1987, s 35, s 36
Case References:	Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Commonwealth v Rian Financial Services & Developments Pty Ltd (1992) 36 FCR 101 London County Council v Agricultural Food Products Ltd [1955] 2 QB 218 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 Owendale Pty Ltd v Anthony (1967) 117 CLR 539 Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 Re Plutonic Operations Ltd; Ex parte Roberts [1999] WASCA 133 Re Reference under s 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 David Cheney Pty Ltd v City of Adelaide [1998] SAERDC 476 Director of Public Prosecutions v His Honour Judge Fricke [1993] 1 VR 369 Dooney v Henry (2000) 174 ALR 41 FH Faulding & Co Ltd v Federal Commissioner of Taxation (1994) 54 FCR 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING; EX PARTE FREMANTLE ISLAMIC ASSOCIATION INCORPORATED [2003] WASC 252 CORAM : PULLIN J HEARD : 2 DECEMBER 2003 DELIVERED : 17 DECEMBER 2003 FILE NO/S : CIV 1718 of 2003 MATTER : Section 35 of the Associations Incorporation Act 1987

and

An application for a Writ of Prohibition against PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING

EX PARTE

FREMANTLE ISLAMIC ASSOCIATION INCORPORATED

Applicant

AND

PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING

Respondent

(Page 2)

Catchwords:

Administrative law - Prerogative writs or orders - Application for writ of certiorari to quash decision of respondent cancelling the incorporation of the applicant - Whether donee of power may act via an agent - Whether agent must act in the name of the donee - Doctrine of administrative necessity

Legislation:

Associations Incorporation Act 1987, s 35, s 36

Result:

Order nisi discharged

Category: A

Representation:

Counsel:

Applicant : Mr M J Hawkins

Respondent : Mr A R Beech

Solicitors:

Applicant : Naveen Pillay

Respondent : Department of Consumer & Employment Protection

Case(s) referred to in judgment(s):

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Commonwealth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Patrick John Walker, Commissioner for Fair Trading;

Details

AGLC: Re Patrick John Walker, Commissioner for Fair Trading; [2003] WASC 252
Case: [2003] WASC 252
Decision Date

CaseChat Overview and Summary

The case involves the Fremantle Islamic Association Incorporated, who sought a writ of certiorari to quash a decision made by the Commissioner for Fair Trading, Patrick John Walker, to cancel the incorporation of the association. The court was required to determine whether the Commissioner could delegate the power to cancel incorporation to an agent and whether the steps taken by the agent were valid. The court considered whether the Commissioner could act via an agent, whether the agent had to act in the name of the Commissioner, and whether the doctrine of administrative necessity applied. The court held that the Commissioner could act via an agent, but the steps taken had to be in the name of the Commissioner. The court found that the agent had acted in the name of the Commissioner, and the decision to cancel the incorporation was valid. The order nisi was discharged.

Orders