Re Patrick John Walker, Commissioner for Fair Trading;
[2003] WASC 252
RE PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING; EX PARTE FREMANTLE ISLAMIC ASSOCIATION INCORPORATED [2003] WASC 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 252 | |
| Case No: | CIV:1718/2003 | 2 DECEMBER 2003 | |
| Coram: | PULLIN J | 17/12/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| A | |||
| PDF Version |
| 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
and
An application for a Writ of Prohibition against PATRICK JOHN WALKER, COMMISSIONER FOR FAIR TRADING
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 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
(Page 3)
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
Case(s) also cited:
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
(Page 4)
1 PULLIN J: This is the return of an order nisi for a writ of certiorari.
2 The decision the applicant seeks to quash is the decision cancelling the incorporation of the applicant. In short, the applicant says that steps taken to cancel the incorporation were taken by agents of the respondent, when s 35 of the Associations Incorporations Act 1987 ("Act") provided that it was the Commissioner himself who should make the decision.
3 Section 35 of the Act provides that, where the Commissioner "has reasonable cause to believe" that an incorporated association has been inoperative for the preceding 12 months, then the Commissioner may send, by certified post, a notice stating the ground or grounds on which it is proposed to cancel the incorporation of the association, and stating that if a reply showing cause to the contrary is not received within two months thereafter, the incorporation of the association would be cancelled.
4 Section 35(2) provides that unless the Commissioner is satisfied of certain specified matters within two months after the sending of the notice, or the Supreme Court on the application of an aggrieved person otherwise orders, the Commissioner may cancel the incorporation of the association.
5 Section 35(3) provides that where the Commissioner cancels the incorporation of an incorporated association, the Commissioner shall publish in the Government Gazette a notice of the cancellation.
6 Section 35(4) empowers the Commissioner to reinstate the incorporation of an association if the Commissioner is satisfied that the incorporation was cancelled as a result of an error on the part of the Commissioner.
7 Section 36 provides that where the incorporation of an incorporated association is cancelled under s 35, the property of the association vests in the Commissioner and the Commissioner may give directions concerning the distribution of the property.
8 The steps which must be taken by the Commissioner before he may cancel the incorporation of an association are therefore:
(a) to form a belief, on reasonable cause, about the matters listed in s 35(1);
(b) to send by certified post the notice required under s 35(1);
(Page 5)
- (c) to decide within the stated time whether he is satisfied about the matters listed in s 35(2), and if he is not so satisfied then;
(d) to cancel the incorporation;
(e) to publish in the Government Gazette, a notice of the cancellation as required by s 35(3).
9 The "Commissioner" is defined in s 3(1) of the Act to have the same meaning as in the Consumer Affairs Act 1971. The Consumer Affairs Act 1971 defines the Commissioner to mean the Commissioner for Fair Trading referred to in s 15 of the latter Act. Section 15 states that there shall be a Commissioner for Fair Trading appointed under the Public Sector Management Act 1994.
Facts
10 The applicant was incorporated on 19 May 1999.
11 By letter dated 15 August 2002, Jeannine Purdy, a "Senior Liaison Officer Associations" and an agent of the respondent, wrote to the President of the applicant, stating that the Department had received a complaint about the conduct of the applicant. The letter stated that it had been alleged that the inaugural annual general meeting of the applicant was convened on 10 July 1999 and that no annual general meeting had been convened since July 1999, despite the fact that the rules of the applicant required annual general meetings. The applicant was asked to respond. The letter also referred to the powers of the Commissioner to cancel the applicant's incorporation if it had been inoperative for 12 months. This letter was not part of the statutory process leading to cancellation of incorporation. As a result, it does not matter who signed or sent this letter.
12 There is no evidence before me about whether the Commissioner formed the belief on reasonable grounds about the matters in s 35(1), but, as the document to which I next refer was sent to the applicant, it can be presumed (if the notice is valid) that the belief was formed by the Commissioner (or his agent, if that is permitted). This is because where a power is conferred, upon terms requiring the prior formation of a particular opinion by the donee of the power, it will be presumed from the exercise of that power, in the absence of evidence to the contrary, that the donee had the required opinion. See McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 859-860 and Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 at [77].
(Page 6)
13 On 31 October 2002, a notice was sent to the applicant. It read:
"ASSOCIATIONS INCORPORATION ACT 1987
Section 35
NOTICE OF PROPOSED CANCELLATION
FREMANTLE ISLAMIC ASSOCIATION INCORPORATED
Notice is hereby given that it is the intention of the Commissioner for Fair Trading to cancel the incorporation of the above-named association under section 35(1)(a) of the Associations Incorporation Act 1987 as it
has been inoperative for the preceding 12 months.
If no reply showing cause to the contrary is received by the Commissioner within two (2) months from the date of this notice the incorporation of the association will be cancelled.
Dated the Thirty-first day of October, 2002
(Signature)
Denis Blakeway
Executive Officer, Associations and Charitable Collections
for Commissioner for Fair Trading"
14 This notice was the notice which was required under s 35(1).
15 By letter dated 13 January 2003, Ms Purdy, once again describing herself as "Senior Liaison Officer Associations", wrote to the former President of the applicant. The letter read:
"… I am writing to confirm that the [applicant] was cancelled on 2 January 2003. A copy of the notice of cancellation as published in the Government Gazette on 7 January 2002 … is enclosed for your information."
(Page 7)
16 This letter of 13 January 2003 is not a letter required by s 35. Section 35(2) authorises the Commissioner to cancel the incorporation. The letter of 13 January 2003 states that the cancellation occurred on 2 January 2003, but does not say who made the decision. Once again, it may be presumed by reason of the following document that the Commissioner was not satisfied of the matters listed in s 35(2), and that as a result the Commissioner, or his authorised agent, made the decision to cancel the applicant's incorporation. See again McLean Bros & Rigg Ltd v Grice (supra).
A notice was then published in the Government Gazette on 7 January 2003. It read:
"ASSOCIATIONS INCORPORATION ACT 1987
CANCELLED ASSOCIATION
(Section 35)
The Fremantle Islamic Association Incorporated
Notice is hereby given that the incorporation of the above-named association has been cancelled as from the date of this notice.
Dated the 2nd day of January, 2003
17 This publication in the Government Gazette was the step required by s 35(3) of the Act.
18 The above recital of the facts reveals that, at least in relation to the sending of the notice, it was Denis Blakeway who signed the notice "for the Commissioner for Fair Trading". There was no dispute that he was an agent for the Commissioner.
19 Subsequently letters were sent by the former President to the respondent making various points which go to the merits of whether or not the cancellation should have occurred. The merits of the Commissioner's decision is not in issue in this case, so I need not set out the points made by the former President.
20 The grounds of the order nisi read:
" …
(Page 8)
- B. Section 35 of the Act was not complied with in that it was not the [respondent] who held the belief required by section 35 to be held by the [respondent] and it was not the [respondent] who issued the notice required by the section to [be] given prior to the purported cancellation of the incorporation of the Applicant … but an employee or employees of the Department of Consumer and Employment Protection; and thus
C. The purported notice of proposed cancellation issued to the [applicant] dated the 31st October 2002 signed by Denis Blakeway and the purported cancellation of the incorporation of the [applicant] were of no effect."
21 The applicant, in its submissions, emphasises the fact that exercise of the power under s 35 of the Act adversely affects rights both of the association and of its members, who are now deprived of the right to determine where or to whom the assets may go.
22 The applicant points to the fact that there is no power of delegation in the Act, and yet in relation to numerous other statutes which confer functions, duties, powers and responsibilities on the Commissioner, the powers of delegation were conferred. Further, the applicant points to the Consumer Affairs Act 1971 and to the fact that s 23 provides that a reference to the Commissioner in certain sections of that Act "shall be deemed" to include a reference to a person approved by the Minister or Chief Executive Officer of the Department to carry out certain functions under that Act. It is argued that a lack of a similar provision in the Act, and the lack of any power of delegation, should lead the Court to a conclusion that it was intended that the Commissioner should act personally under s 35 of the Act.
23 There is a body of authority recognising the distinction between the delegation of statutory power by an authority to a person ("X") and the exercise of the authority's power by X as an authorised agent of the authority. See O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 30.
24 As Brennan J said in Re Reference under s 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94, there is a confusing similarity between the two situations. X may make the decision in each situation and both decisions may be valid exercises of power. However, as Brennan J said in
(Page 9)
- the Ombudsman's case (supra) at 94, the "sources of validity" are different. Where an authority has not delegated his power but has authorised another to act in exercise of his power, the act is to be done in the name of the authority: Ombudsman's case (supra) at 94 and London County Council v Agricultural Food Products Ltd [1955] 2 QB 218, per Romer LJ at 224. Where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name: Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562 at 611.
25 Whether the act required by statute may be done by an agent in the name of the authority, or whether the authority must act personally, depends upon an examination of the provision in question, read in the context of the statute as a whole. The nature of the power and all other circumstances of the case must be considered: O'Reilly's case (supra) page 11. Whether the exercise of the power could adversely affect the right or have serious consequences for a person, is a factor to be considered in coming to a conclusion: O'Reilly's case (supra) page 11. Whether, because of the number of powers and duties to be performed by the authority, Parliament must have intended that by reason of administrative necessity the authority could act via an agent, is also a matter for consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38, per Mason J.
26 In this case, the respondent points to the fact that the Commissioner has many thousands of decisions to make in the Act and in other Acts in which he is said by Parliament to have powers, duties and functions. If all of these powers, duties, and functions were matters to be attended to personally by the Commissioner rather than via his agents, then it is likely that the work could not be done. The applicant, however, points to the fact that in relation to s 35 of the Act, only a few associations have their incorporation cancelled each year. There were four such cases in the 2000–2001 financial year; 13 in 2001–2002, and 48 in 2002–2003. It is true, as the Chief Justice said in Re Plutonic Operations Ltd; Ex parte Roberts[1999] WASCA 133 at 36, that it is necessary to determine with respect to each of the powers whether it may be exercised personally, but this determination must take place by bearing in mind other responsibilities that the Commissioner has under the Act. As a matter of statutory construction, it is always necessary to read the Act as a whole.
27 In the case of s 35 of the Act,it is true, as the applicant says, that the exercise of power by the Commissioner has serious consequences for a corporation and its members. Many examples can be found where the consequences were serious yet the courts concluded that a power
(Page 10)
- conferred on an authority might be exercised through agents. So, for example, in Commonwealth v Rian Financial Services & Developments Pty Ltd (1992) 36 FCR 101, an agent was held to be authorised to exercise powers on behalf of an authority to cancel a contract. In Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, it was held that an agent could exercise powers to requisition land. In O'Reilly's case (supra), an agent could decide which documents a taxpayer would be required to produce pursuant to notice.
28 It is also to be noted that s 35, if read as requiring the Commissioner to take all of the steps referred to, would require him to personally attend at the post office to "send" a notice stating the ground or grounds on which it was proposed to cancel the incorporation of an association. Parliament should surely not have intended that result. In addition, the suggestion that the Commissioner should personally take all of the steps leading to cancellation of incorporation as well as attending to his many other duties and exercising the large number of other powers to be performed by him, both under the Act and under other Acts, leads me to the view that Parliament must have intended that he could act through an authorised agent. This is particularly so where Parliament has built safeguards into the Act. The safeguards are that the Supreme Court may be asked to intervene and prevent a cancellation order being made if proceedings are taken by an aggrieved person, and that if some error is made in the process, the Commissioner may reinstate the incorporation of the association.
29 The fact that there is no statutory authority to delegate powers, in my view, strengthens rather than weakens the view that Parliament must have intended that the Commissioner could act via agents.
30 The final matter to consider is whether the steps taken by the respondent's agents have been steps "taken in his name". In my opinion, the steps must be taken in the name of the authority. This means that the steps must be taken, literally, in his name. Thus, in the London County Council case (supra), which was referred to by Brennan J in the Ombudsman case (supra), a notice to quit had to be signed by an assistant as "the valuer to the Council". It was the valuer to the Council who was authorised. Romer LJ at 224 said:
"… If the notices in dispute had been signed by the assistant in his own name they would doubtless had been invalid. This, however, is not what was done; for the assistant signed in the name of the valuer and, as I have already intimated, the
(Page 11)
- signature is to be regarded as the valuer's own, provided that the assistant was authorized to affix it."
31 Turning to the facts in this case, the document which must come under scrutiny is the notice under s 35(1), which I have set out above. The signature of Denis Blakeway appears above his name, but the signature is said to be "for Commissioner for Fair Trading". The notice is therefore in the name of the Commissioner for Fair Trading, and the typing of the name of "Commissioner for Fair Trading" on the notice was similar to the affixing of a facsimile signature stamped on the document by an officer of the Commissioner of Taxation in O'Reilly's case (supra). The signature of Denis Blakeway identifies the agent who is affixing the name of the Commissioner for Fair Trading. The typing of the name of the Commissioner for Fair Trading is a signature by procuration, by proxy. See Denning LJ in the London County Council case (supra) at page 222. Strictly speaking, it was not necessary for Denis Blakeway's name to appear at all. He could, with the authority of the Commissioner, have affixed a facsimile signature of the Commissioner via a stamp, or written his name and nothing more. However, in my opinion, it makes for good administration for the agent authorised to sign a document in the name of a donee of power, to identify himself or herself as the person who has affixed, written, or added the name to the document.
32 The formation of the belief, on reasonable cause, of the matter in s 35(1) by Denis Blakeway (if that occurred) required no notice or document to be signed by him. If he was authorised to form a belief on behalf of the Commissioner (and that is not in dispute), then his belief was the belief of the Commissioner.
33 The only other document which is required under s 35, in the context of this case, is the publication in the Government Gazette, and that is a document in the name of the respondent (although probably by his agent).
34 For the above reasons, I would discharge the order nisi.
2
12
0