The Council of St. Andrews Cathedral School v Dawkins, J. (Minister of State for Employment, Education & Training)

[1989] FCA 218

Re: THE COUNCIL OF ST ANDREW'S CATHEDRAL SCHOOL
And: JOHN DAWKINS, MINISTER OF STATE FOR EMPLOYMENT, EDUCATION AND TRAINING
No. ACT G49 of 1988
FED No. 218
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Application for extension of time to make application for orders of review - Legislation providing for financial assistance to the States in respect of recurrent expenditure of non-systemic schools - Decisions relating to level of financial assistance in respect of particular school - Discretion unconfined - Non statutory guidelines issued by Minister - Length of delay in making application - Advantage taken by applicant of avenues of review and appeal on merits - Such avenues administrative, not statutory - Whether decision to be reviewed the operative decision - Effect of repeal of provision under which decision made.

Acts Interpretation Act 1901 (Cth), s.8(c)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

States Grants (Schools Assistance) Act 1983 (Cth), s.24 and Schedule 8

States Grants (Schools Assistance) Act 1984 (Cth), ss.7, 29, 90 and Schedule 9

States Grants (Schools Assistance) Amendment Act 1985 (Cth), ss.8, 9

HEARING

CANBERRA

#DATE 12:5:1989

Counsel for the applicant :Mr A. Robertson

Solicitors for the applicant :Mallesons Stephen Jaques

Counsel for the respondent :Mrs P. Flemming, Q.C.

and Mrs V.J. Bonsey

Solicitor for the respondent :Australian Government Solicitor

ORDER

The time within which a proceeding may be commenced by the applicant for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the decision made by the respondent on 3 June 1988 relating to the level of financial assistance to be provided under the States Grants (Schools Assistance) Act 1984 (Cth) in respect of St Andrew's Cathedral School be extended up to and including 7 October 1988.

Otherwise the motion, notice of which was given on 27 February 1989, be dismissed.

The applicant pay the respondent's costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application by motion on notice on behalf of The Council of St Andrew's Cathedral School ("the applicant") for extensions of time within which to institute proceedings for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). Extensions of time are sought in respect of two decisions relating to the level of financial assistance to be provided in respect of St Andrew's Cathedral School under legislation to which it will be necessary to refer. The earlier of those decisions was made on 20 June 1985 by Dr James Frederick McMorrow. The later was made on 3 June 1988 by the respondent, Mr John Dawkins, the Minister of State for Employment, Education and Training. At the commencement of the hearing an extension of time to bring a proceeding under the Judicial Review Act was also sought in respect of a decision made on 1 May 1987 by Senator Susan Ryan, then Minister of State for Education, but the application for such extension was abandoned during the course of the hearing.

1. The respondent does not oppose an extension of time being granted in respect of the decision made on 3 June 1988. The substantial question for determination is whether an extension should be granted in respect of the decision made on 20 June 1985, that extension being opposed. To consider that question it is necessary to refer in some detail to the relevant legislation and the history of the matter.

2. Upon its coming into operation on 21 December 1983, the States Grants (Schools Assistance) Act 1983 (Cth) became the then most recent in a series of statutes relating to the grant of financial assistance to the States for and in relation to government and non-government schools. That Act made provision, inter alia, for grants to be made to the States for recurrent expenditure (that is, expenditure other than capital expenditure) of non-systemic schools during the year which commenced on 1 January 1984. Sub-section 24(9) provided that the Minister might authorise payment to a State, by way of financial assistance to the State in respect of recurrent expenditure of a non-systemic school situated in the State, being a school included in a list of non-systemic schools, of such amounts, not exceeding, in the aggregate, the sum of the amounts calculated in accordance with pars (a) to (e) of the sub-section, as the Minister determined. Paragraphs (a) and (b) of that sub-section were in the following terms:
   

"(a) an amount equal to the product of the amount specified in column 2 of Schedule 8 opposite to the level of assistance in column 1 of that Schedule that is the level of assistance specified in the list of non-systemic schools in relation to the school and the number of students receiving primary education at the school on the date (in paragraphs (b) and (c) referred to as the 'census date') that is the schools census date for that State or is such other date as the Minister, in special circumstances, determines in relation to the school;

(b) an amount equal to the product of the amount specified in column 3 of Schedule 8 opposite to the level of assistance in column 1 of that Schedule that is the level of assistance specified in the list of non-systemic schools in relation to the school and the number of students receiving secondary education at the school on the census date."

Schedule 8 identified four levels of assistance as Levels 1a, 1b, 2 and 3. The criteria by which the level of assistance appropriate to a particular school was to be ascertained or calculated was not set out in the statute or in regulations made under the statute. Columns 2 and 3 of Schedule 8 respectively specified, in respect of each level of assistance, an amount per primary school student and an amount per secondary school student. Level 1a provided the lowest level of funding assistance.

1. Financial assistance granted to a State under s.24 in respect of recurrent expenditure of a non-systemic school in the State was to be granted subject to certain conditions. One of those conditions was that the State, subject to a further condition to which it is unnecessary to refer, would, without undue delay, pay to the approved authority of the school (being the person or body declared to be such by the Minister pursuant to sub-s.3(17)) an amount equal to each amount paid to the State under s.24 in relation to the school (sub-s.24(10)).

2. It is common ground between the parties that, in respect of the year which commenced on 1 January 1984, St Andrew's Cathedral School ("the School") was included in the relevant list of non-systemic schools and received from the State of New South Wales amounts by way of financial assistance, being amounts received by the State under the above legislation. The amounts so received included amounts calculated by reference to the circumstance that the level of assistance specified in relation to the School in the list of non-systemic schools was Level 1b.

3. The States Grants (Schools Assistance) Act 1984 (Cth), so far as relevant, came into operation on 25 October 1984. Section 29 provided that the Minister might authorize the payment to a State, by way of financial assistance to the State in respect of recurrent expenditure (that is, expenditure (other than short-term emergency expenditure) not being capital expenditure) of a non-systemic school situated in the State in respect of a year to which the section applied (being the calendar years 1985, 1986, 1987 and 1988 - see sub-s.29(6)), of such amounts as the Minister determined. The amounts so determined were not to exceed, in the aggregate, the sum of amounts calculated in accordance with pars (a) to (h) in sub-s.29(1). Paragraphs (a) and (b) were in the following terms:
   

"(a) an amount equal to the product of -

(i) an amount being -

(A)the amount specified in the column of Part II of Schedule 9 that relates to that year opposite to the reference to the level of assistance in column 1 of that Part that is the level of assistance specified in the list of non-systemic schools, in relation to that school in that year; or

(B)if the school was included in the list of non-systemic schools referred to in section 24 of the States Grants (Schools Assistance) Act 1983 and the amount specified in column 2 of Schedule 8 to that Act opposite to the reference to the level of assistance in column 1 of that Schedule that is the level of assistance specified in that list in relation to that school is a greater amount than the amount referred to in sub-sub-paragraph (A) -- that greater amount; and

(ii) the number of students receiving primary education at the school on the schools census date for that year or on such other date as the Minister, in special circumstances, determines for the purposes of this sub-paragraph in relation to the school in respect of that year;

(b) an amount equal to the product of -

(i) an amount being -

(A) the amount specified in the column of Part IV of Schedule 9 that relates to that year opposite to the reference to the level of assistance in column 1 of that Part that is the level of assistance specified in the list of non-systemic schools in relation to that school in that year; or

(B) if the school was included in the list of non-systemic schools referred to in section 24 of the States Grants (Schools Assistance) Act 1983 and the amount specified in column 3 of Schedule 8 to that Act opposite to the reference to the level of assistance in column 1 of that Schedule that is the level of assistance specified in that list in relation to that school is a greater amount than the amount referred to in sub-sub-paragraph (A) -- that greater amount; and

(ii) the number of students receiving secondary education at the school on the schools census date for that year or on such other date as the Minister determines for the purposes of this sub-paragraph in respect of that year."

Parts II and IV of Schedule 9 identified, by consecutive arabic numerals, twelve levels of assistance, the lowest level of assistance being Level 1. In respect of each level of assistance an amount was specified in Column 2 described as "Amount per student for year 1985" and another amount in Column 3 described as "Amount per student for each of the years 1986, 1987 and 1988". Again, the statute contained no definition of each level of assistance nor did it set out the criteria by which the Minister was to determine which level of assistance was appropriate to a particular school. Financial assistance granted to a State under s.29 in respect of a year to which the section applied was to be granted subject to certain conditions. One of those conditions was that the State, subject to a further condition to which it is unnecessary to refer, would, without undue delay, pay to the approved authority of the school an amount equal to the amount paid to the State in relation to the school in respect of that year (sub-s.29(5)).

1. Section 7 made provision for a list of non-systemic schools. Sub-sections (1) and (2) provided:
   

"(1) In this Act, a reference to the list of non-systemic schools shall be construed as a reference to the list of non-systemic schools in force for the purposes of the States Grants (Schools Assistance) Act 1983 immediately before the commencing day or, if that list is varied after that day in accordance with this section, that list as so varied.

(2) The Minister shall, where the Minister considers it appropriate to do so, as soon as practicable after the commencing day, determine in writing that the list of non-systemic schools be varied, with effect from a date specified in the determination including a date before the making of the determination, by substituting for the level, denominated as level 1a, level 1b, level 2 or level 3, at which financial assistance was provided in respect of the school under the States Grants (Schools Assistance) Act 1983 a new level, denominated by a number between 1 and 12

(inclusive), at which financial assistance is to be provided in respect of the school under this Act, and, where the Minister does so, the list shall, with effect from that date, be deemed to be so varied."

The commencing day was 25 October 1984. Sub-section (20) of that section provided:

"(20) The Minister may, having regard to any significant change in the need of a non-systemic school for financial assistance, for the purpose of meeting recurrent expenditure of the school, by determination in writing, vary the list of non-systemic schools by specifying, in the instrument of variation, in respect of the school, a different level at which financial assistance is to be provided to the school for the purpose of meeting recurrent expenditure of the school and, where the Minister does so, the variation to the list as so in force shall, unless the Minister, in special circumstances, specifies in his or her determination that it should take effect from the 1 January preceding the making of the determination, take effect from the expiration of the 31 December next following the making of the determination."

By sub-s.7(21), the Minister was required, as soon as practicable after 31 December 1984 and 31 December of each year to which s.29 applied, to cause the list of non-systemic schools to be published in the Commonwealth of Australia Gazette.

1. Section 90 provided:
   

"Any declaration, approval, authorization, determination, direction or notification made or given under, or for the purposes of, this Act shall be made or given by instrument in writing and any declaration, approval, auhorization, determination, direction or notification so made or given, or deemed to be made or given under, or for the purposes of, this Act, may be varied or revoked by instrument in writing by the person authorized to make or give the relevant declaration, approval, authorization, determination, direction or notification."

1. On 18 December 1984, Mr A.K. Beavis, the Principal of the School, received from the Commonwealth Schools Commission ("the Commission") a letter dated 14 December 1984 signed by Dr P.D. Tannock informing him that the Minister had approved new procedures for the assessment of non-government schools' funding categories for the period 1985-1988. These were said to be based on a new formula, called the Education Resources Index, a description of which was set out in a document attached to the letter. The letter contained the following paragraphs:
   

"After calculating the Education Resources Index for your school, the Commission has decided that it would not be appropriate to categorise the school without further review of its particular circumstances. In the first instance this review will be undertaken on the basis of information which the Commission already has available to it through the administration of the Capital Grants and other funding programs and through past assessments of recently established schools for general recurrent grants. It may, however, be necessary to seek further information from you. Should this be the case, an officer of the Commission will contact you. It would be helpful if you could provide the Director of the Commission's office in your State with the name(s) and telephone number(s) of persons who may be contacted over the holiday period.

I wish to assure you that the categorisation of your school for 1985-88 will be given the highest priority. Should we be unable to complete the review before the first payment due in January your school will receive the same per student amounts in 1985 as it received in 1984."

1. In summary, the Education Resources Index for a particular school was to be the percentage which the total net private income of the school (being the aggregate of total private cash income of the school and the value of the shortfall, if any, in the actual salaries paid by the school to its teachers and professional support staff relative to the average salaries paid in government schools less allowances for boarding school costs and day school capital-related costs) bore to an assessment standard. Under the sub-heading "(E) Allowance for day school capital-related costs", the following appeared:
   

"A general allowance is made, as a deduction from total private income, for capital-related costs (i.e. direct capital expenditure, debt servicing, cash provisions for future capital works, etc). It is calculated as a percentage of the school's private cash income (after the deduction of allowable boarding costs), with the percentage determined by the value of private cash income as a proportion of the assessment standard, as follows:

Private cash income as Percentage of private a percentage of the cash income allowed assessment standard for capital costs 15% or less 40.0% 100% or more 7.5% Allowances are calculated on a progressive scale between these limits. The minimum allowance for capital-related costs is set at 5% of the assessment standard."

The document also stated that the Education Resources Index value to be used for the 1985 general recurrent grants classification was the enrolment-weighted average of the Education Resources Index values based on 1981 data and 1983 data respectively. It was further stated that, after calculation, the average was to be truncated to its whole number part and this value was to be used as the basis for classification according to the category boundaries set out in a further attachment which listed 12 levels of funding. The higher the value of the Education Resources Index, the lower the per capita level of funding was to be. A value of 88 or above resulted in a school being classified at Level 1.

1. Also attached to the letter was a document headed "Grounds and Arrangements for Reviews and Appeals". Under the sub-heading "A. Reviews" the document contained the following:
   

"A school or school system may seek a review of its funding category for 1985-1988 on one or more of the following grounds:

(a) the school provides substantial additional services for a significant number of students with special needs. Such students would include students from isolated rural areas, Aboriginal and Torres Strait Islander students, students from low socio-economic backgrounds and students with physical or intellectual disabilities. Boarding schools serving a substantial number of students from any of the above groups will be eligible for a reconsideration of the allowance for boarding costs included in the Education Resources Index (ERI);

(b) the school has capital expenditure (including debt servicing) which is substantially higher than the allowance for capital-related costs incorporated in the ERI and that expenditure relates to facilities within acceptable guidelines and for which there is demonstrable educational need;

(c) the school has experienced a major change of circumstances since the data years on which the subsidy category is based or one or both of the data years were atypical.

Schools which intend to seek a review should notify the Commission in writing by 28 February 1985, specifying the ground or grounds upon which the review is sought. Upon receipt of an application for review the Commission will advise the school of the information which it will be required to submit in support of its application. Late notification of intention to seek a review will not be accepted.

Reviews will be considered initially by the Commission which will, where appropriate, seek further information and advice from its State Offices or Planning and Finance Committees. The decision on the review will be made by the Minister on the advice of the Chairman."

1. In elaboration of grounds (b) and (c) the document provided:
   

"Ground (b) - Capital Expenditure The intention of this ground for review is to ensure that an appropriate allowance is made for the application of private income to justifiable capital needs. Schools will be required to supply sufficient information about the capital facilities to which the debt servicing and other capital expenditure undertaken in the data years relate to enable the Commission to satisfy itself that:

. the facilities are required for the school to provide a basic and acceptable standard of educational service; . the type, standard and cost of the facilities are consistent with Commission guidelines. A more favourable category will not be granted if:

. the additional capital allowance required for adequate recognition of justifiable capital needs does not result in an ERI value supporting an increase in grants; . the Commission considers that an increase in the capital allowance would be inappropriate in relation to the school's overall standard of recurrent and capital resources. Ground (c) - Change of Circumstances The use of both 1981 and 1983 data in determining funding categorisations is designed to even out the effects of moderate fluctuations in school income. The intention of this ground for review is to enable additional information to be considered for schools which have experienced a change in circumstances sufficient to render even the average of 1981 and 1983 data unrepresentative of the school's present operation. A more favourable funding category will not be granted if:

. the ERI value for the school's present operating pattern does not support an increase in grants; . the present operating pattern of the school is likely to be temporary and to revert within the funding period to a stable pattern adequately represented by the combination of 1981 and 1983 data. Short-term financial hardship will not be an adequate basis on its own for a change in funding category. Relevant cases will be considered under the Short Term Emergency Assistance Program."

1. Under the sub-heading "B. Appeals" the document stated:
   

"Schools dissatisfied with the outcome of the review will have the opportunity to make a more formal appeal, including personal representation if desired, to a Ministerially appointed Panel of Commissioners.

Appeals will be considered on the same grounds as those for reviews set out above. Detailed information about the procedures for appeals will be forwarded to schools with the notification of decisions on reviews."

1. It is to be noted that the provisions made for reviews and appeals were administrative provisions only. They had no statutory foundation.

2. Mr Beavis received a letter dated 7 March 1985 from the Commission stating that the 1985 classification for the School should be made at an early date. The letter went on:
   

"Once the school has been notified in writing of its funding level, it will have approximately four weeks in which to notify its intentions to seek review and indicate the grounds on which a review is sought. Review documentation would not be required at that stage."

1. By telegrams dated 21 and 24 June 1985, Mr Beavis was informed that the school had been placed in category 1 for the period 1985-1988 and that the "deadline date" for appeal against the category was 19 July 1985. The decision notified in those telegrams was made by Dr McMorrow on 20 June 1985 and is the earlier of the decisions in respect of which an extension of time to commence a proceeding under the Judicial Review Act is sought. In making that decision Dr McMorrow is said to have been exercising, by delegation, the power conferred on the Minister by sub-s.7(2) of the States Grants (Schools Assistance) Act 1984. No instrument of delegation is in evidence.

2. By letter dated 5 July 1985 the School appealed against the decision placing it in category 1. The letter stated that the basis upon which the appeal was being made could not be formulated until a promised letter from the Commission setting out the basis of the decision had been received.

3. Mr Beavis subsequently received a letter from the Commission dated 31 July 1985 stating that the School's funding category for the period 1985-1988 had been "finalised" and that details of the calculation of the Education Resources Index for the School could be obtained upon written application. The letter contained the following paragraphs:
   

"The average 1981/83 value of the Education Resources Index for your school is 90. An amendment to the school's 1983 data, which involved the inclusion of a substantial subsidy provided by the Church to offset the school's interest payments, resulted in a recalculated ERI of 94. The Commission noted that the level of the school's actual debt servicing costs for both 1981 and 1983 is considerably higher than the capital allowance provided by the ERI. It noted also that the school is not receiving State interest subsidies to offset these costs and understands that this is related to the arrangement whereby the school does not have guaranteed permanent tenure of the facilities which it is using. Based on a careful consideration of the data which is available to the Commission in relation to your school, St Andrew's Cathedral School has been placed in category 1 for the period 1985-88. The Commission is concerned that it has no formal information about the nature of the school's facilities or of the tenure arrangement and acknowledges that this may be an important consideration in finalising an appropriate funding category for the school. In view of this, the Commission invites the school to provide relevant additional information upon which further consideration of the categorization can be based. Enclosed is a form and a set of Explanatory Notes which will enable you to provide the information required. The form should be returned to this Office by 16 September 1985.

....

Your school will continue to receive the same per student grants in money terms in 1985 as you received in 1984 until the Commission has completed its examination of the new information."

1. It does not appear from the evidence before the Court whether steps were taken by Mr Beavis to obtain details of the calculation of the Education Resources Index for the School. Nor does the basis upon which Dr McMorrow's decision was made appear from the evidence except in so far as it may be gleaned from the letter dated 31 July 1985. No statement under s.13 of the Judicial Review Act in respect of that decision is before the Court. Whether such a statement was requested is not established by the evidence.

2. According to Mr Beavis' affidavit sworn 27 February 1989, the School thereafter provided further information to the Commission. It appears from other material that that information was provided under cover of a declaration dated 8 October 1985. The information itself is not in evidence.

3. On 11 December 1985, before there had been any decision upon the reconsideration envisaged by the letter dated 31 July 1985 or upon the School's appeal (see letter dated 5 July 1985), relevant provisions of the States Grants (Schools Assistance) Amendment Act 1985 (Cth) came into operation. Sub-section 8(1) of that Act amended s.7 of the States Grants (Schools Assistance) Act 1984 (Cth), the latter Act being referred to in the amending Act as "the Principal Act". Section 7 was amended by omitting sub-sections (1) to (4) inclusive and substituting a new sub-s.(1), a provision dealing with a subject matter different from that dealt with by the former sub-ss.(1) and (2) the text of which is set out above. Sub-s.7(20) was also omitted. Sub-section 8(2) of the amending Act provided:
   

"(2) Notwithstanding the amendments made by sub-section (1), a determination under sub-section 7(2) of the Principal Act that is in force immediately before the commencement of this section, continues in force, after the commencement of this section, as if sub-section 7(2) of the Principal Act had not been omitted."

1. Section 9 of the amending Act inserted in the Principal Act a number of new sections including s.7C. Sub-sections (5) and (6) of the new section provided:
   

"(5) The Minister may, having regard to any significant change in the need of a non-systemic school for financial assistance for the purpose of meeting recurrent expenditure of the school, by determination in writing, vary the list of non-systemic schools by specifying, in the determination, a different level (being a level of assistance set out in column 1 of Parts I, II, III and IV of Schedule 9) as the level at which financial assistance is to be provided, under section 29, to the school for the purpose of meeting recurrent expenditure of the school.

(6) Where the Minister makes a determination under sub-section (5), the determination shall, unless the Minister, in special circumstances, specifies in the determination that it takes effect from the 1 January preceding the making of the determination, take effect from the 31 December next following the making of the determination."

1. The amending Act also repealed Schedule 9 to the Principal Act and substituted a new schedule. It is unnecessary to refer to the new schedule except to observe that it continued to identify the levels of assistance by the consecutive arabic numerals 1 to 12 inclusive.

2. It appears that a decision was not made on the review of the School's general recurrent funding category until 4 September 1986 when Mr N.W.F. Fisher, Deputy Secretary, Department of Education, confirmed that the level of assistance appropriate to the School was Level 1. Mr Fisher is said in some of the material before the Court to have made that decision as a delegate of the then Minister. No instrument of delegation is, however, before the Court. It must also be said that the material before the Court does not provide an explanation of what occurred between 8 October 1985 when the School provided material to the Commission in response to the letter from the Commission dated 31 July 1985 and 4 September 1986 when Mr Fisher confirmed that Level 1 was the appropriate level of assistance for the School.

3. The document recording Mr Fisher's decision showed 5 July 1985 as the date the review was sought and 18 March 1986 as the "Date of final clearance of data". It also showed that the matter had been reviewed under grounds (b) and (c) as set out in the attachment to the letter dated 14 December 1984, the review on ground (b) having been sought by the School and the review on ground (c) having been initiated by the Commission. The document stated that the level of the School's actual debt servicing costs for 1981 and 1983 were higher than the capital allowance incorporated in the Education Resources Index and that, because the School did not have guaranteed permanent tenure of the facilities it was using, there was no offset through the receipt of State interest subsidies. As appears from an attachment to the document, the reference to the School's facilities was a reference to the top two floors of St Andrew's House where the School was accommodated. Under the sub-heading "Summary of assessment", the following appeared:
   

"The school's existing available tuition facilities are slightly below Commonwealth global area guidelines. However an examination of the school's capital allowance/income allocation is not considered appropriate given the school's available facilities (including additional facilities not initially assessed in relation to Commonwealth global area guidelines) and overall level of recurrent and capital resources. The average of all four data years is considered appropriate for categorisation purposes. The resultant average value of 98, incorporating the smoothing of income generated by supporting organisations, warrants confirming the school in category 1."

1. Although it was suggested during the course of the hearing that it might be necessary to seek an order of review under the Judicial Review Act in respect of Mr Fisher's decision, with the consequent necessity for an application to extend the time within which to do so, no application is before the Court in relation to that decision.

2. The Department of Education wrote to Mr Beavis a letter dated 10 September 1986 concerning the School's request for a review of the general recurrent funding category determined for the School for the period 1985-1988. The letter said:
   

"The examination and assessment of the information provided by you in support of the review request has now been completed. The review indicates that the previously determined funding category for the period 1985-88 continues to reflect accurately the school's current operating characteristics and should therefore be maintained. A summary of the review is attached for your information."

The letter also informed Mr Beavis that, if the School disagreed with the outcome of the review, a formal appeal to the Non-Government Schools Funding Review Committee might be lodged. Notification of an intention to appeal was to be lodged at a specified address within 28 days of the receipt of the letter. The Non-Government Schools Funding Review Committee was a non statutory body which appears to have been established on 31 October 1985 by the then Minister, Senator Ryan.

1. According to Mr Beavis' affidavit, he subsequently notified the Department of Education that the School wished to appeal and at the same time engaged a firm of solicitors to assist the School in relation to the appeal. The appeal was apparently lodged on 1 October 1986. A submission (apparently dated 31 October 1986) was, according to Mr Beavis, made in writing to the Non-Government Schools Funding Review Committee and representatives of the School appeared before the Committee on 21 November 1986.

2. The document recording the review made by the Non-Government Schools Funding Review Committee states that the School advanced three arguments in support of its appeal. According to the document, the School contended that an amount of $105,000.00 per annum should be deducted from its private income for the data years as it represented moneys paid by the Anglican Diocese to offset the School's capital costs; that certain properties should not be included in its available facilities and it should, in consequence, receive the benefit of the capital allowance/income allocation in calculating its Education Resources Index; and that its special circumstances due to its location in the inner city of Sydney should be taken into account in determining its category for general recurrent funding.

3. By letter dated 1 May 1987, Mr Beavis was informed by the Minister, Senator Ryan, that the Non-Government Schools Funding Review Committee had recommended that the earlier decision made by the Department of Education which confirmed the School in category 1 for Commonwealth general recurrent grants for 1985 should stand and that she agreed with that recommendation. The letter also stated that the Minister had arranged for the Department of Education to accept a late application for review of the School's funding category for 1986 if the School wished to follow that course.

4. The School sought a review of its funding category for 1986 but that application was unsuccessful, the decision thereon being made on 18 September 1987 by Mr V.W. Fitzgerald, Secretary to the Department of Employment, Education and Training. Mr Beavis was informed of the decision by a letter from the Department dated 30 September 1987.

5. By letter dated 12 May 1987, solicitors acting for the School had requested a statement under the provisions of s.13 of the Judicial Review Act in respect of the decision of the Minister recorded in the letter dated 1 May 1987. That statement was provided under cover of a letter dated 5 June 1987 from the Department of Education. The reasons for the decision were stated in the following terms:
   

"1. By virtue of sub-section 7C(5) of the States Grants (Schools Assistance) Act 1984 the Minister is empowered, having regard to any significant change in the need of a non-systemic school for financial assistance for the purpose of meeting recurrent expenditure of the school, to determine a different level of financial assistance to be provided to the school for the purpose of meeting recurrent expenditure.

2. The school appealed on ground (b) and the Commonwealth Department of Education considered a possible basis for an appeal on ground (c) as set out in the Program Guidelines 1985 (para 2.16) and the Commonwealth Programs for Schools Administrative Guidelines 1986 (para 2.17).

3. Having taken into account the school's arguments the Minister was not satisfied that during the period 1981 to 1985 inclusive the school

(a) incurred capital expenditure (including debt servicing) that warranted special consideration

(b) experienced a major change in its operating circumstances.

4. The Minister accordingly decided not to exercise her powers under sub-section 7C(5) of the States Grants (Schools Assistance) Act 1984 to change the level of financial assistance from category 1 for payment of Commonwealth general recurrent grants for 1985-88."

The Program Guidelines 1985 and the Commonwealth Programs for School Administrative Guidelines 1986 are not in evidence.

1. On 8 July 1987, the present applicant commenced a proceeding (No. ACT G 47 of 1987) in this Court under the Judicial Review Act for an order of review in respect of the Minister's decision dated 1 May 1987. Although certain affidavits were filed in the proceeding on behalf of the applicant, the matter did not proceed to a hearing and on 1 July 1988 an order was made, by consent, dismissing the application and ordering that the respondent Minister pay the applicant's costs. The making of that order followed discussions and correspondence between the parties and the making of the decision referred to below. The correspondence included a letter dated 8 April 1988 from the Australian Government Solicitor to the solicitors for the School confirming a proposal which had been discussed by telephone that "the matter under review be put before the Minister for Education afresh for reconsideration". A reconsideration of the matter took place and on 3 June 1988, Mr John Dawkins, the Minister for Employment, Education and Training, confirmed the School in category 1 for Commonwealth general recurrent grant payment purposes. On 11 July 1988, a request for a statement under s.13 of the Judicial Review Act in respect of that decision was made by the School's solicitors. That statement was furnished under cover of a letter dated 2 August 1988.

2. On 7 October 1988, an application was filed in this Court on behalf of the applicant seeking an order of review under the Judicial Review Act in respect of the decision made on 3 June 1988. That application was not filed within the period prescribed by s.11(3)(b)(ii) of the Judicial Review Act; hence the application for extension of the time within which to bring that proceeding.

3. An application for an order of review in respect of the decision made by Dr McMorrow on 20 June 1985 has not yet been filed. The applicant proposes, in the event of the extensions of time sought being granted, to amend the application filed in respect of the decision made on 3 June 1988 to encompass the review of the earlier decision.

4. Before referring to the particular features of this case bearing upon the question whether an extension of time should be granted to enable the applicant to commence a proceeding seeking an order of review in respect of the decision made on 20 June 1985 by Dr McMorrow, reference should be made, in order to put it to one side, to a submission put to the Court by counsel for the respondent. It was submitted that to set aside Dr McMorrow's decision would be futile as, by reason of the repeal of sub-ss.7(1) and 7(2) of the States Grants (Schools Assistance) Act 1984 (Cth) by s.8 of the States Grants (Schools Assistance) Amendment Act 1985 (Cth), no decision can now be made, in substitution for that made by Dr McMorrow, determining the level of financial assistance appropriate for the School during the calendar years 1985 to 1988 inclusive.

5. I am unable to agree that that would be the consequence of setting aside Dr McMorrow's decision. It may be accepted that the carrying into effect of the legislative scheme granting financial assistance to the States in respect of recurrent expenditure of non-systemic schools in respect of the calendar years 1985 to 1988 inclusive depended upon the existence of a list of non-systemic schools specifying, within the twelve levels for which Schedule 9 to the Act provided, the appropriate level of assistance for each of those schools. It was a matter for the Minister to identify the schools and to determine, in respect of each, the appropriate level of assistance. Sub-sections 7(1) and 7(2) no doubt provided what was considered to be an appropriate procedure by which the Minister might have the necessary list prepared, that is to say, by adopting the list of non-systemic schools in force for the purposes of the States Grants (Schools Assistance) Act 1983 (Cth) and varying that list by inserting therein the appropriate level of assistance determined by him under the new provisions. But the absence of that prescribed procedure would not have resulted in the scheme being inoperative: the result would simply have been that the Minister would have been free to adopt any procedure he considered appropriate to have the necessary list prepared. In my opinion, the Minister retained that ability after the repeal of sub-ss.7(1) and 7(2). Consequently, if the decision made by Dr McMorrow on 20 June 1985 (assuming it to have been the operative decision - a matter to which I will refer later in these reasons) were to be set aside, there would remain an unresolved question concerning the level of assistance appropriate to the School in respect of the calendar years 1985 to 1988 inclusive and, in those circumstances, it would be open to the Minister, indeed it might be said that he would be bound, to consider that unresolved question and determine the appropriate level of assistance for the School. Whether that result is required by the terms of the States Grants (Schools Assistance) Act 1984 (Cth) itself or by the operation of s.8(c) of the Acts Interpretation Act 1901 (Cth) it is unnecessary to determine.

6. In considering whether the extension of time sought should be granted, it is relevant to take into account the length of time, more than 3 1/2 years, which elapsed between the date of Dr McMorrow's decision (20 June 1985) and the date (3 March 1989) when the motion for the extension of time came before the Court. The lapse of such a long period of time must make it more difficult for the applicant to satisfy the Court that grounds sufficient to warrant the necessary extension of time have been made out.

7. The grounds which the applicant has foreshadowed as those upon which an order of review would be sought in respect of Dr McMorrow's decision in the event of an appropriate extension of time being granted are that the making of the decision was an improper exercise of the power conferred by sub-s.7(2) of States Grants (Schools Assistance) Act 1984 (Cth) (Judicial Review Act, par.5(1)(e)) and that there was no evidence or other material to justify the making of the decision (ibid., par.5(1)(h)). In relation to the first of these grounds, the applicant has foreshadowed reliance upon pars (a), (b) and (f) of sub-s.5(2) of the Judicial Review Act. Paragraph (a) refers to the taking of an irrelevant consideration into account, par.(b) to failing to take a relevant consideration into account and par.(f) to the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. It is asserted that the decision was made in accordance with administrative guidelines, presumably those set out in the attachment to the letter dated 14 December 1984, without regard to the merits of the School's case and that Dr McMorrow failed to take into account -
   

(a) the capital allowance/income allocation applicable to the School in accordance with the guidelines; and

(b) the greater need of the School because of additional costs occasioned by the School's situation as a school seven floors above street level in the inner city of Sydney.

The irrelevant consideration asserted to have been taken into account is described as "the payment of $105,000.00 to the applicant by St Andrew's House Corporation". The various grounds are not expressed as being in the alternative though it may be that grounds based on pars (a) and (b) of sub-s.5(2) of the Judicial Review Act are intended to be read as alternative to the ground based on par.(f) of that sub-section.

1. In seeking to sustain at least some of these grounds the applicant will be confronted with the difficulties arising from the circumstance that the statutory provisions do not expressly prescribe the criteria by reference to which the appropriate level of assistance for a particular school is to be determined. The discretion is conferred in the most general terms and, in accordance with established authority, the factors which the decision-maker may take into account are unconfined except in so far as they may be defined or limited by implication arising from a consideration of the subject-matter, scope and purpose of the statute: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at pp 39-40. It must also be taken as established that the extent of a statutory discretion is not to be limited by reference to guidelines, having no statutory basis, issued by a decision-maker: Minister for Industry and Commerce v. East West Trading Co. Pty Ltd (1986) 10 FCR 264 at p 269; Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 11 FCR 528 at pp 540-1; Broadbridge v. Stammers (1987) 16 FCR 296; Gerah Imports Pty Ltd v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1 at pp 10-13. These difficulties for the applicant are, I think, relevant matters to be taken into account in considering whether an extension of time should be granted.

2. I also have taken into account the very real doubt that must exist whether Dr McMorrow's decision was, and remains, an operative decision. This consideration has two aspects. First, a consideration of the terms of the letter dated 31 July 1985 addressed to Mr Beavis by the Commission and referred to earlier in these reasons strongly suggests that Dr McMorrow's classification of the School at Level 1 was never intended to have operative effect. The letter recorded that the classification was based on such data, acknowledged to be deficient in some respects, then available to the Commission and the School was invited to provide relevant additional information when, it was stated, further consideration would be given to the appropriate level of assistance. That Dr McMorrow's decision was not to have immediate effect was made clear by the further statement that the School was to receive the same per student grants in money terms in 1985 as it received in 1984 "until the Commission has completed its examination of the new information". Secondly, the history set out earlier in these reasons shows that additional information was provided by the School and the appropriate level of assistance was considered by Mr N.W.F. Fisher who, in a decision made on 4 September 1986, confirmed that the appropriate level was Level 1. The circumstance that sub-s.7(1) and 7(2) of the Act of 1984 had been repealed prior to the date of Mr Fisher's decision is, for the reasons already stated, of no consequence. I have no reason to doubt that, had Mr Fisher concluded that the appropriate level of assistance was Level 2 or Level 3, being the levels for which the School contended, that conclusion would have been reflected in a variation of the list of non-systemic schools then in force pursuant to sub-s.8(2) of the amending Act of 1985. It is also significant that, subsequently to Mr Fisher's decision, the appropriate level of funding was again considered, at the School's request, by the Non-Government Schools Funding Review Committee.

3. A further factor to be taken into account is that the applicant, having a choice whether to challenge the decision made by Dr McMorrow on any of the grounds set out in s.5 of the Judicial Review Act or to take advantage of the system, albeit not statutory but administrative only, of reviews and appeals on the merits outlined in the attachment to the letter from the Commission dated 31 July 1985, chose to follow the latter course. So far as appears from the evidence before the Court, the applicant at no time prior to the filing of its notice of motion dated 27 February 1989 gave any indication to those responsible for the administration of the scheme that Dr McMorrow's decision was challenged on the ground of legal error. Having pursued each of the avenues of administrative review and appeal on the merits, the applicant, being dissatisfied with the result, now wishes to retrace its steps and challenge the validity of Dr McMorrow's decision. The applicant asserts that there was a misunderstanding as to the scope of the review which was to be undertaken following the dismissal, by consent, of the proceeding brought by the applicant for an order of review in respect of the decision made by Senator Ryan on 1 May 1987. I have some difficulty in accepting that assertion as the subsequent review had taken place and the decision thereon announced prior to the dismissal of the proceeding. But, be that as it may, such a misunderstanding, if it occurred, may give rise to some other right in the applicant but it provides no basis for now extending the time to allow the decision made by Dr McMorrow to be challenged.

4. A consideration of the above factors, in combination, has led me to conclude that no sufficient ground has been established to warrant an extension of time to enable a proceeding to be brought in this Court for an order of review in respect of the decision made by Dr McMorrow on 20 June 1985. I should add that, although no application is formally before the Court to extend the time to enable such a proceeding to be brought in respect of the decision made by Mr Fisher on 4 September 1986, I have considered the question as the matter was to some extent canvassed during argument. In my opinion, the considerations which have led me to conclude that no extension of time should be granted in relation to Dr McMorrow's decision would also have led me to conclude that no extension of time should be granted in relation to Mr Fisher's decision.

5. In the result, the time within which a proceeding may be commenced by the applicant for an order of review in respect of the decision made by the respondent on 3 June 1988 is extended up to and including 7 October 1988. Otherwise the motion, notice of which was given on 27 February 1989, is dismissed. The applicant must pay the respondent's costs of the motion.