Re: ALAN MAXWELL ROSS; JOHN STAFFORD HEAP And: FRANCIS XAVIER COSTIGAN and THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA No. G30 of 1982 Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Ellicott J.
CATCHWORDS
Administrative Law - Order of Review - Interlocutory Relief - Royal Commission under Commonwealth and Victorian Letters Patent into conduct by Federated Ship and Painters and Dockers Union - Disposition of shares as part of tax minimisation transaction - Possible involvement therein of union members - Inquiry by Royal Commission into minimisation transaction concerning applicant Heap - Whether consideration thereof relevant to inquiry by Royal Commission under Commonwealth Letters Patent - Whether decisions to issue summonses and inquire of an administrative character - Whether made under an enactment - Whether decisions to which the Act applies or conduct engaged in or proposed to be engaged in for the purpose of making such a decision - Whether terms of reference of Commonwealth Letters Patent beyond constitutional power.
1. The application for interlocutory relief be dismissed.
2. The applicants pay the costs of the respondent of the application.
JUDGE1
This is an application for interlocutory relief in proceedings brought by Alan Maxwell Ross and John Stafford Heap ("the applicants") under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") against Francis Xavier Costigan ("the respondent") in which they seek an order of review of decisions alleged to have been made and conduct alleged to have been engaged in by the respondent as Royal Commissioner appointed by the Commonwealth to enquire into certain conduct by the Federated Ship Painters and Dockers Union ("the Union"). The Commonwealth Letters Patent are dated 10 September 1980.
On 1 October 1980 another Royal Commission appointing the respondent as Commissioner and relating to the Union was issued by the Governor of the State of Victoria.
The scope of these two commissions differ and I shall refer to them subsequently.
The respondent has been conducting inquiries pursuant to the respective Letters Patent since October 1980. In the course of those inquiries questions have been asked under oath concerning transactions entered into by the applicant, John Stafford Heap and others relating to the disposition of shares in certain asociated companies in relation to which transactions he was advised by the applicant, Alan Maxwell Ross. Counsel assisting the Commission indicated that he proposed to question witnesses with a view to ascertaining whether either of the applicants by engaging in these transactions had been party to a breach or involved in a criminal conspiracy to breach s.67 of the Companies Act 1961 (N.S.W.). Counsel also indicated an intention in due course (no doubt if he thought the evidence warranted it) to submit that the Commissioner should recommend to government that…
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.
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Details
AGLC
Ross, A.M. & Anor v Costigan, F.X. [1982] FCA 57
Case
[1982] FCA 57
Decision Date
CaseChat Overview and Summary
The applicants, including Ross and Costigan, sought interlocutory relief against the decisions made by the Royal Commission established under Commonwealth and Victorian Letters Patent to investigate the conduct of the Federated Ship and Painters and Dockers Union. The applicants challenged the relevance of their involvement in a tax minimisation transaction to the Royal Commission's inquiry. The applicants also sought to argue that the Royal Commission's decisions to issue summonses and conduct the inquiry were administrative in nature, made under an enactment, and that the terms of reference of the Commonwealth Letters Patent exceeded the constitutional power.
The central legal issues in the case were whether the decisions made by the Royal Commission were administrative in nature, whether they were made under an enactment, and whether the terms of reference of the Commonwealth Letters Patent exceeded the constitutional power. The applicants argued that the Royal Commission's decisions to issue summonses and conduct the inquiry were administrative in nature, made under an enactment, and that the terms of reference of the Commonwealth Letters Patent exceeded the constitutional power. The applicants further argued that the consideration of their involvement in the tax minimisation transaction was not relevant to the Royal Commission's inquiry.
The court dismissed the application for interlocutory relief. It found that the decisions made by the Royal Commission were not administrative in nature and were not made under an enactment. The court further found that the terms of reference of the Commonwealth Letters Patent did not exceed the constitutional power. The court held that the Royal Commission's inquiry into the tax minimisation transaction was relevant to its investigation of the conduct of the Federated Ship and Painters and Dockers Union. The court held that the applicants had not demonstrated a sufficient likelihood of success on the merits of their case to warrant the grant of interlocutory relief.
The court dismissed the application for interlocutory relief and ordered the applicants to pay the costs of the respondent. The court held that the Royal Commission's decisions to issue summonses and conduct the inquiry were not administrative in nature, were not made under an enactment, and did not exceed the constitutional power. The court further held that the Royal Commission's inquiry into the tax minimisation transaction was relevant to its investigation of the conduct of the Federated Ship and Painters and Dockers Union.
Orders
Orders of the court
1. The application for interlocutory relief be dismissed.
2. The applicants pay the costs of the respondent of the application.