Re Patrick John Walker, Commissioner for Fair Trading - [2003] WASC 176

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 176

CORAM: JOHNSON J

HEARD: 5 SEPTEMBER 2003

DELIVERED : 5 SEPTEMBER 2003

PUBLISHED : 10 SEPTEMBER 2003

FILE NO/S: CIV 1718 of 2003

MATTER :Section 35 of the Associations Incorporation Act 1987
and
An application for 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

Catchwords:

Order nisi - Test for grant of order nisi - Writ of Prohibition - Exercising statutory authority through an agent

Legislation:

Associations Incorporation Act, s 35

Income Tax Assessment Act 1936 (Cth)

Mining Act 1978, s 99

Result:

Order nisi granted

Category: B

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):

O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re Matthews; Ex parte MacKenzie [2000] WASC 147
Re Plutonic Operations Ltd, SIPA Resources Ltd and the Minister for Mines; Ex parte Roberts [1999] WASCA 133
Re Reference under the Ombudsman Act (1979) 2 ALD 86
Savage v Teck Exploration Ltd, unreported; FCA; Library No 7285; 16 September 1988

Case(s) also cited:

Nil

JOHNSON J: This is an application for an order nisi for a Writ of Prohibition.
It is conceded by counsel for the respondent that the threshold for the grant of an order nisi is low. An applicant for an order nisi for a Writ of Prohibition need only demonstrate an arguable case for the relief sought. There is some dispute in authority as to what must be established before a case can properly be described as arguable. One view is that an arguable case is one that is not merely capable of being argued, but has some prospect of success: Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108. However, in Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 it was held that there is no necessity that the arguable case have some reasonable or real prospect of success. At first blush, such an approach appears to be somewhat inconsistent with the requirement for the order nisi or threshold stage of the proceedings, the purpose of which must be to exercise some form of screening process. In Re Matthews; Ex parte MacKenzie [2000] WASC 147 at [11] Templeman J, who adopted the lower standard to which Parker J referred, emphasised that the Judge who hears the order nisi application is not to…

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 176
Case: [2003] WASC 176
Decision Date: 10 SEPTEMBER 2003

CaseChat Overview and Summary

The case involves the Commissioner for Fair Trading, who is the applicant, and the respondent is Patrick John Walker. The dispute revolves around the Commissioner seeking a writ of prohibition to prevent Walker from exercising certain statutory authority through an agent, arguing that the statutory power should be exercised personally. The matter was heard in the Supreme Court of Western Australia. The central legal issue in the case is whether the statutory power in question can be exercised through an agent or must be exercised personally by the statutory authority. The applicant contends that the power must be exercised personally, while the respondent argues that the statutory power can validly be exercised through an agent under the circumstances.

The court carefully considered the relevant statutory provisions and previous case law to determine whether the statutory authority can delegate its power to an agent. The court examined the language of the statute and found that while the statutory authority has the power to delegate under section 12 of the Act, it did not do so. The court emphasised the importance of the power and concluded that, absent a delegation, the statutory authority must personally take into account the relevant recommendation. The court found that the circumstances justified the exercise of the power through an agent, as argued by the respondent. The court was not persuaded by the applicant's argument that the statutory power must be exercised personally.

The court granted the order nisi, finding that the low threshold test had been met. The court recognised the respondent's strong argument that the circumstances justified the exercise of the power through an agent. The court concluded that it was not unarguable that the statutory authority must personally exercise the power, and therefore, the order nisi was granted. The court's decision allows the respondent to exercise the statutory authority through an agent, subject to the terms of the order nisi.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Of course, it is not without consequence that Mason J was in the minority in that case. Reliance was also placed on the decision in Re Plutonic Operations Ltd, SIPA Resources Ltd and the Minister for Mines; Ex parte Roberts [1999] WASCA 133 in which the Full Court considered whether the Minister's power under s 99 of the Mining Act 1978 must be exercised personally. After referring to the importance of the power, Malcolm J concluded [36]:"…while the Minister had the power to delegate under s 12 of the Act, he did not do so. Absent such a delegation he was required personally to take into account the Warden's recommendation". The respondent submits that, on a complete reading of the judgment, in particular [33] to [36], it simply does not support the proposition put forward by the applicant. The respondent's argument that the circumstances justified the exercise of the particular power through agents is a strong one. However, I am not persuaded that the applicant's position is unarguable. Ultimately, I am satisfied that the low threshold test has been met and I would grant the order nisi.