Trollope v The Honourable Justice Middleton - [2008] FCA 564

FEDERAL COURT OF AUSTRALIA
Trollope v The Honourable Justice Middleton [2008] FCA 564
CORRIGENDUM
BARRY BARTON TROLLOPE v THE HONOURABLE JUSTICE JOHN ERIC MIDDLETON and GESS RAMBALDI (AS TRUSTEE OF THE BANKRUPT ESTATE OF BARRY BARTON TROLLOPE)
VID 1080 OF 2007
TRACEY J
27 JUNE 2008 (CORRIGENDUM 29 JULY 2008)
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1080 OF 2007

BETWEEN:

BARRY BARTON TROLLOPE
Applicant

AND:

THE HONOURABLE JUSTICE JOHN ERIC MIDDLETON
First Respondent

GESS RAMBALDI (AS TRUSTEE OF THE BANKRUPT ESTATE OF BARRY BARTON TROLLOPE)
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

27 JUNE 2008

WHERE MADE:

MELBOURNE

CORRIGENDUM

On page 18 of the Judgment in the Certification Box “Solicitor for the Applicant” should read: “Madgwicks”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.
Associate:
Dated: 29 July 2008
FEDERAL COURT OF AUSTRALIA
Trollope v The Honourable Justice Middleton [2008] FCA 564
ADMINISTRATIVE LAW – whether “decision” to issue a search warrant pursuant to s 130 of the Bankruptcy Act 1966 (Cth) is a reviewable decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) – whether decision-maker obliged to provide a statement of reasons pursuant to s 13 of the ADJR Act – decision to issue warrant may result in the institution of civil proceedings (para (f) of Sch 2 of the ADJR Act) – no obligation to provide reasons
Bankruptcy Act 1966 (Cth) ss 129, 129A, 130
Administrative Decisions (Judicial) Review Act 1977 (Cth) s 3(4), 5, 13, 13(1), 13(2), 13(7), 13(11)(b), Sch 2 para (f)
Morton v Robins (1996) 14 ACLC 1197 cited
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 cited
Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 cited
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 cited
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 cited
Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476 cited
Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 cited
Osmond v Public Service Board [1984] 3 NSWLR 447 cited
Comcare Australia v Lees (1957) 151 ALR 647 cited
Hatfield v Health Insurance Commission (1987) 15 FCR 487 cited
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 cited
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 cited
Soldatow v Australia Council (1991) 28 FCR 1 cited
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 cited
Sullivan v Department of Transport (1978) 20 ALR 323 cited
Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 cited
Madera v Commissioner of Taxation (2004) 214 ALR 327 cited
Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535 followed
Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349 applied…

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

Case: [2008] FCA 564
Decision Date: 27 June 2008

CaseChat Overview and Summary

In the case of Trollope v The Honourable Justice Middleton, the applicant sought judicial review of a decision made by the Honourable Justice Middleton, who acted as an eligible judge under the Bankruptcy Act. The specific issue was the issuance of a search warrant by Justice Middleton. The applicant argued that he was aggrieved by the decision as it affected his interest in maintaining the confidentiality of certain documents claimed to be privileged. The court had to determine whether the applicant had standing to challenge the decision under the Administrative Decisions (Judicial Review) Act.

The court examined whether the applicant was aggrieved by the decision, as required by the ADJR Act. The applicant claimed that his interest in preserving the confidentiality of privileged documents was adversely affected by the issuance of the search warrant. The court acknowledged that a person has standing if their interests, broadly defined, are affected by the decision. The court considered whether the applicant's interests rose above those of an ordinary member of the public. In this case, the court found that the applicant did not have standing to challenge the decision as he did not provide sufficient evidence that his interests were adversely affected by the issuance of the search warrant.

The court dismissed the application and ordered the applicant to pay the second respondent's costs, which were incidental to the application. The court found that the applicant did not meet the threshold of being aggrieved by the decision, and therefore did not have standing to seek judicial review. The decision highlights the importance of demonstrating that an applicant's interests are adversely affected by the decision in question to establish standing under the ADJR Act.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the second respondent’s costs of an incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TRACEY J

Section 13 of the ADJR Act establishes a regime pursuant to which persons who have standing to make an application under that Act may seek reasons for the decision which they might seek to challenge. Relevantly the section provides:“(1)Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.(2)Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.(3)Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request:(a)give to the second-mentioned person notice in writing of his or her opinion; or(b)apply to the Federal Court or the Federal Magistrates Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.(4) … (4A)The Federal Court or the Federal Magistrates Court may, on the application of:(a)a person to whom the request is made under subsection (1); or (b)a person who has received a notice under subsection (3); make an order declaring the person who made the request concerned was, or was not, entitled to make the request.(5)…(6)...(7)If the Federal Court or the Federal Magistrates Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons of the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect of those findings, that evidence or other material or those reasons.(8)…(9)…(10)…(11)In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:(a) …(b)a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material to which those findings were based and the reasons for the decision; or(c)a decision included in any of the classes of decision set out in Schedule 2.”THE SUBMISSIONS

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

The second respondent accepted that, when acting as an eligible Judge under s 129A of the Bankruptcy Act and determining to issue a warrant under s 130 of that Act, a Judge is not acting in a judicial capacity or exercising judicial authority. This concession was properly made: see Morton v Robins (1996) 14 ACLC 1197. He also accepted that the decision of an eligible Judge under s 130 of the Bankruptcy Act was a decision of an administrative character made under an enactment which, if he had standing, was a decision which the applicant could challenge under the ADJR Act. This concession was also properly made: see Morton at 1198.CONSIDERATIONStanding The second respondent contends that there is no evidence that the applicant is a person aggrieved by his Honour’s decision to issue a search warrant. The warrant was to be executed at the premises of TS&B Retail and was so executed. The warrant was, it was said, issued because of matters arising in relation to the applicant’s bankrupt estate rather than the bankrupt himself. For these reasons it was submitted that the applicant did not have standing to apply for review under s 5 of the ADJR Act. Counsel for the applicant did not point to any evidence before the Court which went to the standing of the applicant. He did however state that, when the warrant was executed, the applicant claimed that some of the documents seized were subject to a claim, by him, of client legal privilege. As a result those documents were segregated and have not been examined by the second respondent. He submitted that his client’s interest in preserving the confidentiality of the privileged material was a relevant interest which was affected by the decision to issue the warrant. Had the warrant not been issued the maintenance of that confidentiality would not have been compromised. A person has the necessary standing to bring an application under the ADJR Act if he or she is aggrieved by the decision which it is desired to challenge. By s 3(4) of the ADJR Act it is provided that a person will be taken to be aggrieved by a decision if that decision adversely affects the interests of the person. The term “person who is aggrieved”, used in the ADJR Act, is not narrowly to be confined: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259. A person will have standing if his or her “interests”, broadly defined, are affected by the particular decision. Proprietary and financial interests are relevant interests. They are, however, by no means the only interests comprehended by s 3(4). It will be necessary, in any particular case, for the Court to form a judgment as to whether the person’s interests are affected to such a degree as to warrant the grant of standing: see Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382. The Court’s judgment will be influenced by the nature of the particular decision and the extent to which the interests of the applicant rise above those of an ordinary member of the public: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 133 per Gummow J. See also Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 473; Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476 at 477.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1080 OF 2007

JUDGE:	TRACEY J
DATE OF ORDER:	27 JUNE 2008
WHERE MADE:	MELBOURNE