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 try the matter. His Honour also referred to the statement of Malcolm CJ in Savage v Teck Exploration Ltd, unreported; FCA; Library No 7285; 16 September 1988, which is in the following terms:
"On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendments so that the matter may proceed to the Full Court on a proper basis."
It is clear from this statement that the order nisi process does serve some purpose even where the Judge granting the order considers the arguable case to have no real prospect of success. For these reasons, I too would adopt the lower standard to which Parker J referred in Re Capobianco; Ex parte Castelli (supra).
The relevant facts can be briefly stated. By notice in the name of the Commissioner for Fair Trading dated 2 January 2003 and published in the Government Gazette of 7 January 2003, the applicant's incorporation was cancelled.
The power to cancel incorporation is conferred on the Commissioner by s 35 of the Associations Incorporation Act 1987. The section requires that the Commissioner take a number of steps before exercising the power to cancel the incorporation. Relevantly, notice must be sent to the association 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 after the date on which the notice is sent, the incorporation of the association will be cancelled by the Commissioner: subs (1).
Subsection (2) relevantly provides that unless the Commissioner is satisfied, within two months after the date of sending a notice, that cause has been shown, the Commissioner may cancel the incorporation of the association. Subsection (3) contains a requirement for publication in the Government Gazette of the notice of cancellation.
This application results from the fact that the Commissioner did not himself take the necessary steps, rather the steps were taken by employees of the Department of Consumer and Employment Protection ("the Department"). The correspondence between the applicant and the Department is simply signed by the employees in their own names and over their own titles. However, both the notice of proposed cancellation and the cancellation notice were in the name of the Commissioner.
It is important to note from the outset that no power of delegation is given to the Commissioner under the Associations Incorporation Act. Nor is any relevant power of delegation given to the Commission under any other legislation. However, the Commissioner has signed authorisations for the two employees who dealt with the cancellation of the applicant's incorporation to exercise all the functions, powers, duties and responsibilities conferred on the Commissioner under the Act.
The issues raised by the grounds stated in the application are:
(1)Whether the employees were acting as delegates or agents;
(2)Whether the respondent was entitled to delegate or act through an agent.
The absence of a power to delegate is conceded by the respondent. On behalf of the applicant it is said that when a delegate exercises a power, he or she does so in his or her own name. When an agent acts, he or she does so in the name of the person on whom the power or function is conferred: see Re Reference under the Ombudsmen Act (1979) 2 ALD 86 at 93 ‑ 94, per Brennan J (sitting as President of the Administrative Appeals Tribunal). The apparent thrust of this submission is that, as the relevant documentation was signed by the employees under their own name and title, it is open to conclude that they were purporting to exercise a delegated power in circumstances where no power to delegate exists.
I accept the submission of the respondent that the only conclusion which may reasonably be drawn from the material put before the Court, in particular, the existence of the authorisation, is that the employees were acting as the Commissioner's agents rather than exercising any delegated power. In my view, the contrary proposition is unarguable and I would not be prepared to grant an order nisi with respect to Ground A of the application.
The only remaining issue is whether, in issuing the notice of proposed cancellation, in deciding to cancel the applicant's incorporation, or in issuing the notice of cancellation, the respondent was entitled to act through an agent.
I have been referred to a number of authorities which address the circumstances in which it is appropriate for Ministers and people acting in certain positions to act through an agent. The respondent puts forward a compelling argument, supplemented by authority and affidavit material, that it was appropriate for the respondent to act through agents in exercising his power under s 35. In particular, the respondent relies on the majority decision of the High Court in O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1, at 11 and 30, where it was held that the powers conferred by s 264(1) of the Income Tax Assessment Act 1936 (Cth) were not intended to be exercised only by the Commissioner or his delegate, but might be exercised through a properly authorised officer.
In essence, the applicant's position is twofold. First, the position of the respondent in this case is said to be distinguishable from that of the Commissioner for Taxation in the O'Reilly case. Secondly, even accepting that there exists a power to delegate, certain powers must be exercised personally and the power to cancel the applicant's incorporation falls within such a category. In support of that proposition, counsel for the applicant referred the Court to the decision of Mason J in O'Reilly where his Honour made the following observation:
"Apart from any exercise of his power of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of the discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing the notice."
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.