United States Tobacco Company v Minister of Consumer Affairs

[1988] FCA 391

Re: UNITED STATES TOBACCO COMPANY
And: THE MINISTER FOR CONSUMER AFFAIRS and THE TRADE PRACTICES COMMISSION
No. G158 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
NEW SOUTH WALES DISTRICT
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial review - practice and procedure - motion to be joined as a party to proceedings - Federal Court rules - inherent jurisdiction - statutory jurisdiction - parties to litigation - intervention by non statutory body not made party to proceedings - 'person interested' - sufficient or special interest - amicus curiae defined and explained.

Administrative Decisions (Judicial Review) Act 1977 - ss 5 and 12

Federal Court of Australia Act 1976 - s 23

Federal Court of Australia Rules - Order 6 Rule 8

Trade Practices Act 1977 - ss 65C and 65J

HEARING

SYDNEY

#DATE 14:7:1988

Counsel and solicitors for Mr. B.W. Walker

United States Tobacco Company instructed by

Baker and McKenzie Solicitors

Counsel and solicitors for Mr. J. Allsop
the Minister for Consumer instructed by the
Affairs and Trade Practices Australian Government Solicitor
Commission

Counsel and solicitors for Mr. B.J. Preston
Australian Federation of instructed by
Consumer Organisations Inc. Slater and Gordon

Solicitors

ORDER

Application of Australian Federation of Consumer Organisations Inc. to be joined as a further respondent or to intervene as if a party is refused.

Leave is granted to the Australian Federation of Consumer Organisations Inc. to appear as an amicus curiae at and prior to the hearing of this matter.

Costs of this motion are reserved.

The question of the costs of the amicus curiae may be argued at a convenient time.

NOTE: Settlement and entry of orders are dealt with in accordance with order 36 of the Federal Court Rules.

JUDGE1

The United States Tobacco Company (the applicant) is seeking an order of review pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) of what is alleged to be a decision by the Minister of Consumer Affairs (the Minister) to which the Judicial Review Act applies, to gazette a notice (the notice) pursuant to section 65J (1) of the Trade Practices Act 1974 (the Act) on 13 January 1988. The notice signified the Minister's intention to declare certain smokeless tobacco goods unsafe pursuant to section 65C(5) of the Act. An order of review is also sought of the conduct of the Minister and the Trade Practices Commission (the Commission) in relation to a conference called by the Commission on the Minister's instruction under section 65J(4) of the Act (the conference).

1. On 28 March 1988, I gave judgment refusing a motion by the applicant, argued on 25 March, for interlocutory injunctions seeking to restrain the holding and continuance of the conference and for other relief. Leave to appeal from that decision was refused by Foster J. on 5 May 1988. At the hearing of that aspect of the proceedings before me, the Australian Federation of Consumer Organisations Inc. (AFCO) appeared and orally asked to be joined as an additional respondent. No notice of motion for joinder or affidavit was produced at the time. The applicant's motion was urgent, as the conference was due to resume on the next working day. All parties consented to AFCO's request (the applicant only reserving its position as to costs) and AFCO had appeared before the Commission at previous sittings of the conference. For these reasons, I gave AFCO provisional leave to participate in the interlocutory application and said I would join it as a respondent upon its filing an affidavit establishing its status and interest in the proceedings. Affidavits were not filed until 12 and 13 April 1988. They were filed in G 769 of 1988 which, as my judgment on 28 March shows, was deferred by consent on 25 March, and has subsequently been dismissed with costs. No costs were awarded to AFCO in the interlocutory proceedings in this matter.

2. On 19 May 1988 AFCO applied on motion filed in court on 13 May to become a party to the action proper, supported by the affidavits dated 11 and 12 April 1988 of Robin Brown, its Executive Director and Public Officer, and Peter Kenneth Cashman, its solicitor, respectively. Alternatively, it seeks leave to intervene in the proceedings. Both applications are opposed by the applicant. The Minister and the Commission neither opposed nor supported the application.

3. The evidence establishes that AFCO is an umbrella organisation of a number of federal and state consumer bodies and organisations such as the Australian Consumers' Association, State Consumer Associations and the New South Wales Association for Consumer Education. Its main objective is to protect consumer interests. It acts in the interests of developing the consumer movement and the formation of consumer organisations. It is the body through whom individual consumers can advocate particular concerns relating to such varied areas as health, public transport, the development of safety and performance of, and information regarding, consumer goods. Its constitution provides inter alia as follows:
   "2.1 The objects and powers of the Federation are:
   

(a) to represent the views of the Federation on matters affecting consumers;

(b) to provide a forum for the discussion of matters that are of common interest to consumer organisations;

(c) to focus attention on consumer problems and consumer affairs;

(d) to assist and encourage the formation of consumer organisations;

(e) to act as a central agency by providing, as far as possible, facilities and services for consumer organisations that are members of the Federation;

(f) to establish and maintain high ethical standards and to encourage high standards of performance in the interests of consumers among members of the Federation;

(g) to co-operate and affiliate with organisations having similar objects both within and outside Australia;

(h) to study or compare or have studied and compared matters of all kinds concerning consumers which are relevant to the interests of organisations that are members of the Federation and to the communities served by those organisations;

(i) to collate or have collated and to distribute consumer information to members of the Federation and to the public;

(j) to foster consumer education;

(k) to carry out or have carried out tests, investigations and studies on matters affecting consumers;

(l) to prepare or have prepared and publish information, opinions and reports on matters affecting consumer organisations or consumers;

(m) to raise funds from grants, donations, subscriptions and loans from international, national, State and Local Government authorities, from councils, corporations, foundations and associations, from private persons, from the sale of publications or as fees for services, and to receive any gifts, legacies or other benefits, provided always that the raising of such funds or the receipt of such gifts, legacies or other benefits shall be wholly compatible with the objects, aims, stated policy and independence of the Federation;

(n) to apply the funds of the Federation in promoting its objects and, in particular, to purchase, take on lease or in exchange, hire or otherwise acquire any real or personal property, to construct, maintain or alter any building or works, and to invest moneys in such manner as the Executive Committee, without restriction of any laws limiting the investment of moneys by trustees, may from time to time determine;

(o) to do all such things as are incidental or conducive to the attainment of the objects and the exercise of the powers of the Federation.

2.2 In the construction of these expressions of objects and powers the expressions shall be given their widest possible meaning consistent with their sense and intention, and objects and powers shall not be regarded as being in any way limited or restricted because of the manner in which they are expressed - provided always that in all activities in pursuance and fulfilment of its objects and powers the Federation shall act and react in a manner that is strictly non-party political."

1. The conference was first convened on 10 February 1988 when the applicant disputed its validity and sought an adjournment until these Federal Court proceedings had been heard. It reconvened on 9 March 1988, when the Commission requested written submissions from the parties as to whether or not the conference should continue notwithstanding the Federal Court proceedings. On 23 March 1988 the conference convened for a directions hearing which was then re-scheduled to 28 March 1988, the date on which my earlier judgment was delivered.

2. There are two alternative grounds upon which AFCO seeks to be joined as a party to these proceedings. These are pursuant to section 12 of the Judicial Review Act and on a general law basis.
   The General Law Basis

3. AFCO argued that joinder is authorised and justified by all or any one of the following:
   

(a) Order 6 Rule 8(1)(b) of the Federal Court Rules

(b) the inherent jurisdiction of the court

(c) section 23 of the Federal Court Act 1976.

Federal Court Rules

1. Order 6 Rule 8 provides:
   

"8.(1) Where a person who is not a party -

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.

(2) A person shall not be added as an applicant without his consent."

1. AFCO submitted that this provision should not be given a restrictive meaning. Reference was made to many cases including Re Trade Practices Commission (1978) 18 ALR 17 at 22 and 23 per Franki J; on appeal to the Full Federal Court (1979) 27 ALR 551; and to the High Court (1981) 148 CLR 150; McIntosh v Williams (1979) 2 NSWLR 543 at 561 per Hutley J.A. (with whom Moffitt P and Samuels J.A. agreed at 547.)

2. AFCO further submitted that the test which I should adopt was whether its rights or liabilities may directly be affected by any order which the court may make: Penang Mining Co v Choong Sam (1969) 2 Malay Law Journal 52; Re Trade Practices Commission (above); Re Multi-Tech Services (1982) 30 SASR 218. AFCO argued that its rights, arising from its status as a party to the conference, will be affected by any order which the court ultimately makes in these proceedings.

3. In Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 478, the High Court recognised that the attendance of a party to a mining inquiry gave rise to a right to challenge the legal validity or the conduct of the inquiry. AFCO says that its situation is analagous to the situation in Sinclair.

4. In response to these submissions, the applicant argued that there is no reason why AFCO 'ought to have been joined' and nothing which makes AFCO a 'party necessary' for the matters that must be determined by the Court in this case. AFCO was not for instance in the position of a contractual party who may have a legal or other right to be so joined or protected. The applicant says that the Minister is clearly the statutory guardian of the public interest in this matter. Even though the Minister will be defending a decision he has made, it is his primary duty, as Minister for Consumer Affairs, to ensure the observing of the legislation. The Minister's title illustrates his representation of the public interest. Therefore, the applicant stated, in defending his own actions, the Minister is simultaneously acting in the public interest.

5. In considering the equivalent provision under Part 8 Rule 8 of the New South Wales Supreme Court Rules in Re Great Eastern Cleaning Services Pty Ltd (1978) 2 NSWLR 278, Needham J. held that the Commissioner of Taxation should be joined as a party to the proceedings and stated at 280-81:
   

"Clearly, the Commissioner was not a necessary party, in the sense of being a person who 'ought to have been joined as a party'. The respondent to the application is the Corporate Affairs Commission . . . It was only when one looked at the evidence filed in support of the summons that it became clear that the making of the order could adversely affect the legal rights of the Commissioner, in that the proceedings which he has commenced against the applicant could founder . . . It seems to me that the Commissioner is in a position to put before the Court matters which could be relevant to the exercise of the discretion. There is no one else who has been shown to have any interest in putting forward such matters. The respondent Commission is interested only to see that an order for restoration is accompanied by orders or undertakings which will ensure that the company will operate in accordance with the requirements of the law. It appears to be an inevitable conclusion that the Commissioner is one whose 'joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon'."

1. In his judgment at 281, Needham J. cites Gurtner v Circuit (1968) 2 QB 587 with approval. In that case, what is known as the 'wide' interpretation on the question of allowing a person to be joined as a party was given by Lord Denning at 595:
   

"It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to 'be effectually and completely determined and adjudicated upon' between all those directly concerned in the outcome."

1. Lord Denning did not follow the 'narrow' interpretation of Devlin J. in Amon v Raphael Tuck & Son Ltd (1956) 1 QB 357 at 380:
   

"Of course, whatever the object, it is the words of the rule that now govern the matter, and it is true that the words 'all the questions involved in the cause or matter' are very wide. They are so wide that no-one suggests that they can be read without some limitation. The limitation is not something that is left to be settled by the court in its discretion. It is there in the earlier words of the rule. The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately . . . The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party."

1. Apparently to bridge the gap between these two approaches, the House of Lords, in Vandervell Trustees Ltd v White (1971) AC 912, considered that the similar provision in the English Supreme Court Rules (O 15 R 6 (2)) should be interpreted generously but literally. Their Lordships were of opinion inter alia that parties should only be joined where the dispute between the existing parties required the additional parties for the thorough resolution of the issues involved.

2. Having considered the authorities, Needham J. in Great Eastern Cleaning Services went on to say at 281:
   

"Although it is not possible to find a principle unanimously adopted in the decisions, and although the conclusion I have suggested might be inconsistent with the principles put forward in some of the cases, it seems to me that the rule must be construed in accordance with the ordinary meaning of its words, unless there is an authority binding on me which decides to the contrary. I think the House of Lords, in Vandervell Trustees Ltd v White (1971) AC 912, construed the words of the equivalent English rule without placing on them any such gloss as, for example, was placed upon them by Willmer J. in The Result (1958) p 174 and by Devlin J. in Amon v Raphael Tuck & Sons Ltd (1956) 1 QB 357. The English Court of Appeal decision in Gurtner v Circuit (1968) 2 QB 587 is inconsistent with there being any such gloss."

1. I agree with respect with Needham J.'s general approach. "Parties" to litigation will normally be persons or entities with some self-interest at stake in the actual outcome of the case. They will not be people who are interested in, in the sense of being generally concerned by or worried about, the subject matter or the way it is resolved. Unaided by a statutory facility, they will not generally be public bodies, however worthy and expert, which will neither gain nor lose anything for themselves (as distinct perhaps from the political, organisational or public interests they exist to protect or promote) from the determination of the litigation.

2. AFCO also says that it is a party with 'sufficient interest' in the matter: Rushby v Roberts (1983) 1 NSWLR 350, and that it is a 'person interested' within the wide definition given in Australian Conservation Foundation v Environment Protection Appeal Board (1982) 49 LGR 326. It also claims to have a 'special interest' in this matter as referred to in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. AFCO seeks to establish its interest, special interest or sufficient interest by reference to four main factors:
   

(i) It made submissions to the Minister before he gazetted the notice and claims to be therefore partially responsible for its issue.

(ii) It was a party to, in the sense of being present at, the conference (as was the National Health and Medical Research Council, the Commission and the Minister on 9 March 1988; on the 18 February 1988, these same parties and the Federal Bureau of Consumer Affairs had been present).

(iii) It has special knowledge of facts concerning possible injury to smokeless tobacco users because of its access to documents in the public domain. It says it can produce factual evidence which will assist the court in resolving the issue before it: Shales v Lieschke (1985) 3 NSWLR 65 at 80 per Kirby P.

(iv) It claims to be the 'premier person or body concerned with consumer protection' which is the object and purpose of Division 1A of the Act.

1. In response to these four factors, the applicant put the view that AFCO should not be considered in any different or particular way than the other persons or bodies who made submissions to the Minister. The evidence disclosed that these included the Australian Rough Riders Association Incorporated, the Embassy of the United States of America, the Australian Bushmen's Campdraft and Rodeo Association Ltd, Curry's Merry Muster Rodeo Association, the Society of Snuff Grinders, Blenders & Purveyors of the United Kingdom, Wests Softball Club of Bundaberg (Qld) and some 43 other organisations and individuals. Not much therefore turns on this status of AFCO as supporting the present motion. For similar reasons, the same may be said of AFCO's reliance on its attendance at and participation in the conference. In any event, my inclination would be to treat each application on its own merits without reference to the characteristics of non applicants for joinder. These are factors to take into consideration, but by themselves they are not decisive.

2. So far as evidence is concerned, the applicant asked me to infer that the Minister's evidence, being in the same interest, would be no different to any evidence which AFCO could bring, in the light of the fact that traditionally the Minister has represented the public interest. I am not sure that I should accept this conclusion, but as no information was given of the evidence which could be produced to the Court by AFCO, and as I can see only very limited use to which any available evidence of the tenour vaguely intimated could be put in this application, I am simply not in a position to determine this matter affirmatively in favour of AFCO.

1. The applicant further stated that AFCO had no special statutory or other role allowing it to describe itself as the 'premier person or body concerned with consumer protection'. Rather, the applicant stated, the Minister as the person responsible for the administration of Division 1A of Part V of the Act, is appropriately so described. Assuming that both arms of this point of view were wrong, and that the claim by AFCO was correct, this would not provide a basis for joinder. Every case involving fish would potentially attract the Fishmongers Association. A building case would be susceptible to a wide range of applications for joinder. In a democratic community, almost every subject matter is the concern of one society or another. The involvement of a public body in the general subject matter of a suit can hardly be a significant criterion for becoming a party. This is not a 'floodgates' argument. It is merely that our adversarial system of litigation is not intended to accommodate such groups as parties.

2. The applicant submitted that this is a case where the approach used in the Australian Conservation Foundation v Commonwealth (above) should be followed because the ACF was a body like AFCO seeking standing in a case against a person seeking substantive relief. In that case it was said by Gibbs J. at 530-1 (to which remarks I also referred in Abdul Quiddus Ebrahimi v The Minister for Immigration & Ethnic Affairs unreported 23 May 1988):
   

"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

1. Gibbs J. concluded that the Foundation had no special interest as did Stephen J. for substantially the same reasons. Stephen J. stated at 539:
   

"An individual does not suffer such damage as to give rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern."

1. In Onus (above) Brennan J., with whom Gibbs C.J., Mason, Murphy, Aicken and Wilson JJ. agreed, said at 74-5:
   

"A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show the plaintiff is uniquely affected; there may be some others whose interests might be affected in like manner . . . Whether a plaintiff has shown a sufficient interest in a particular case must be a question of degree, but not a question of discussion."

1. AFCO submitted that being a 'person interested' has a wider meaning than the expression 'person aggrieved' as appears in section 5 (1) of the Judicial Review Act. Lockhart J. in Ogle v Strickland (1987) 71 ALR 41 stated at 50:
   

" . . . the words 'a person who is aggrieved' do not mean the same as 'any person'."

1. The same must be said of 'person interested'.

2. Lockhart J. went to say at 50:
   

"I do not say that, if anybody at all has standing to bring applications under the Judicial Review Act, the 'floodgates' will open and the court will be swamped with cases. This argument has been advanced on numerous occasions and rejected: see, for example, Dyson v Attorney-General (1911) 1 KB 410 per Farwell L.J. at 423; Colonial Sugar Refining Co Ltd v Attorney-General(Cth) (1912) 15 CLR 182, per Griffith C.J. at 189-191 and Barton J. at 202-4; and Phelps v Western Mining Corp Ltd (1978) 20 ALR 183; 33 FLR 327 per Deane J. at 333-4. It is an argument without substance and reality. There are real constraints which would discourage people from instituting proceedings whose only interest is strong views or feelings. The burden of costs, including the risk of orders for costs being made against them if they lose, and the power of courts to control their own proceedings, including the power to dismiss proceedings or strike out pleadings if they are vexatious, frivolous or an abuse of process are examples of some constraints."

1. These strong words warrant universal attention and application. But AFCO stated that in determining the question of sufficiency of interest, I should have regard to the purpose of Division 1 Part VA of the Act, which itself is concerned with the protection of the members of the public. Phelps v Western Mining Corporation Ltd, referred to by Lockhart J., is often and rightly quoted to illustrate that by section 80 of the Act, Parliament intended to involve interested members of the public in the enforcement and effective operation of the Act. On this subject Deane J., then sitting as a member of the Full Court of this Court, said (FLR at 333) with quintessential descriptive prowess:
   

"The argument that to give the words which the Parliament has used their ordinary meaning would, to use a popular phrase, 'open the flood-gates of litigation' strikes me as irrelevant and somewhat unreal. Irrelevant, in that I can see neither warrant for concluding that the Parliament did not intend that flood-gates be opened on practices which contravene the provisions of the Act nor reason for viewing that prospect, if it were a realistic one, with other than equanimity. Unreal, in that the argument not only assumes the existence of a shoal of officious busybodies agitatedly waiting, behind the 'flood-gates', for the opportunity to institute costly litigation in which they have no legitimate interest but treats as novel and revolutionary an approach to the enforcement of laws which has long been established in the ordinary administration of the criminal law . . . "

1. It must be borne in mind that leave will not be granted to intervene " . . . to a mere busybody who was interfering in things which did not concern him": R v Paddington Valuation Officer (1966) 1 QB 380 at 401. But Deane J.'s exemplar of literary skill enables us ordinary folk to understand the gravamen of the scope of the Act which the essence of those observations prescribed. AFCO is no busybody but, in my opinion, it fails to establish the requirements which rule 8 prescribes. It simply does not have the requisite involvement in the substance and outcome of the litigation.
   Inherent Jurisdiction

2. AFCO submitted alternatively that it can and should be joined as a party to these proceedings under what it described as the 'inherent jurisdiction' of this Court. It was again put that a restrictive approach should not be taken to this question. Reference was made to dicta in Rusby v Roberts (above) per Street C.J. at 354; Shales v Lieschke (above) per Kirby P; and Hughes Motor Services Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 at 351 per Bowen C.J.
   Federal Court Act

3. Conjointly with its calling in aid the Court's inherent jurisdiction, AFCO further submitted that a third source of power for joinder was to be found in section 23 of the Federal Court Act 1976. This provides:
   "23. The Court has power, in relation to matters in which
   

it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

1. In this connection reliance was placed on the remarks of Deane J. in Jackson v Sterling Industries Ltd (1987) 71 ALR 457 at 462-3:
   

"Section 23 of the Federal Court of Australia Act 1976 (Cth) confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'. Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction."

1. Further amplification was provided at 468-9 by Toohey J., who dissented the result of the case but on this matter aroused no objection and gained apparent assent from the other members of the Court:
   

"The Federal Court was established by the Federal Court of Australia Act 1976 (Cth). In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; 37 ALR 66, Gibbs C.J., Stephen, Mason and Wilson JJ. said (CLR at 161; ALR at 73):

'The Federal Court of Australia Act sets up the Federal Court and arms it with certain powers, eg ss 22 and 23. But generally speaking, and apart from s 32, the Act does not invest the Court with jurisdiction. It leaves it with the Parliament to do so by other statutes (s 19). This the Parliament has done by other statutes, such as the Trade Practices Act.'

It follows that to determine the jurisdiction of the court in a particular matter, regard must generally be had to some statute other than the Federal Court of Australia Act. In the present case jurisdiction to entertain the claim under the Trade Practices Act derives from that Act. Jurisdiction to deal with the common law claims made by the respondent depends upon the considerations mentioned in Fencott v Muller (1983) 152 CLR 570; 46 ALR 41 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; 49 ALR 193. An Act conferring jurisdiction on the Federal Court may of course confer particular powers on the court in respect of the subject matter of jurisdiction.

. . . . . . . . . . . .

The Federal Court is a creature of statute, but so too are the superior courts and other courts of this country. The High Court itself has the jurisdiction conferred upon it by the Constitution and Acts of the Parliament. Though it is common to speak of the inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth there is within the federal system of this country no court of unlimited jurisdiction. The notion of inherent jurisdiction is in any event capable of misleading for, when examined, it is invariably concerned with the power of a particular court to act in a particular way: see for instance the analysis of judicial decisions in Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264. In R v Forbes; ex parte Bevan (1972) 127 CLR 1 at 7 Menzies J. said of inherent jurisdiction that it is 'the power which a court has simply because it is a court of a particular description'. A Full Court of the Federal Court commented in Parsons v Martin (1984) 5 FCR 235 at 241; 58 ALR 395 at 401:

'In our opinion a court exercising jurisdiction conferred by a statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter for statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.

In view of the way in which the phrase 'inherent jurisdiction' is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.'"

1. Wilson and Dawson JJ. said at 460-1:
   

"However, the declaration of the Federal Court as a superior court is to be given effect as far as it can be and, as Aicken J. remarked in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 535, the vesting of judicial power in the specific matters permitted by the Constitution (see ss 75, 76, 77) carries with it such implied power as is necessarily inherent in the nature of the judicial power itself. Having regard to the declaration of the Federal Court as a superior court and a court of law and equity, the implied power should be construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction.

Be that as it may, it cannot be suggested that either the power to grant relief under s 23 or an implied power to prevent an abuse of process extends to the creation and enforcement of rights in addition to those for the protection or enforcement of which the jurisdiction of the court is invoked. The power given by s 23 is expressly limited to the making of orders in relation to matters in which the court has jurisdiction and it does not extend the jurisdiction of the Federal Court. Nor could that court's implied power be employed to create and enforce new rights. Whilst the implied power carries with it all that is necessary for the proper functioning of that court, it does not extend its jurisdiction beyond that which is vested in it."

1. These observations thus make clear that:
   

1. there is no independent jurisdiction inherently available, in the sense of historically or necessarily accruing, to the Court to exercise powers to make orders;

2. the Court has power to make orders which are incidental or necessary to the exercise of jurisdiction elsewhere derived;

3. section 23 does not confer any jurisdiction on this Court but merely provides it with necessary incidental powers to give effect to the jurisdiction derived elsewhere.

1. This means that the fate of AFCO's application depends upon jurisdiction arising under the Judicial Review Act.
   Section 12 Judicial Review Act

2. This provides:
   

"12(1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.

(2) The Court may, in its discretion -

(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b) refuse the application."

1. The applicant submitted that AFCO is not 'a person interested' in any decision which is the subject of the application for review, within the meaning of this section.

2. The applicant further submitted that in exercising the discretion provided by the section, I should consider the fact that AFCO has no financial interests at stake and therefore that it would not suffer any detriment by not being joined. It further stated that 'person interested' should be given a legal interpretation as opposed to its ordinary meaning, that is, that AFCO would not have any rights or liabilities affected by not being joined as a party.

3. In Fordham v Evans (1986-87) 14 FCR 474, it was held that a person who has legal rights against another may be affected by a decision and is thus a person interested within section 12 (1) of the Judicial Review Act. The applicant submitted that emphasis is to be placed on a person being affected or being more concerned by the outcome of a decision than someone who is not 'interested'. At 476 Jenkinson J. said of 'a person interested' in section 12:
   

"As Young C.J. pointed out in Australian Conservation Foundation v Environment Protection Appeal Board (1983) VR 385 at 393, the expression 'person interested' has been used in many statutes. The subject matter of the interest has a substantial influence on the determination of the meaning to be assigned to the expression in any particular statutory context: of Roehampton Swimming Pool Ltd (1968) 1 WLR 1693 at 1696-1699. In respect of the expression 'person who is aggrieved by a decision', Ellicott J. observed in Tooheys Ltd v Minister for Business and Consumer Affairs

(1981) 54 FLR 421 at 437:

'I am satisfied from the broad nature of the decisions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended.'

The same considerations suggest the same conclusion concerning the phrase 'person interested in a decision' in s 12(1)."

1. His Honour went on to say at 476-77:
   

"It is sufficient for present purposes to say that in my opinion a person whose legal rights against another may be affected by a decision is a person interested in the decision, within s 12(1), if the possibility is a real, and not a remote, fanciful possibility.

. . . . . . . . . . .

To go so far is to go no further, in enlargement of the class comprehended by the phrase 'a person interested in a decision', than Ellicott J. went in enlargement of the class comprehended by the expression 'person who is aggrieved by a decision'. Indeed, it is to go not so far, for Ellicott J. and the members of the Full Court in Ricegrowers Co-Operative Mills Ltd v Bannerman (1981) 56 FLR 443 declared that the latter expression comprehended any person who can show a grievance which will be suffered as a result of the decision beyond that which he or she has as an ordinary member of the public. It might be thought that the draftsman of s 12(1) would not have wished to offer to every person able to show a grievance which will be suffered as result of the decision or as the result of the quashing or setting aside of the decision, beyond that which an ordinary member of the public will have, an opportunity to be made a party to the proceedings for review of the decision. The question whether or not the draftsman did confer the opportunity on a class so widely defined need not be answered on this occasion, I think."

1. In Ebrahimi (above) I drew attention to the views expressed in Onus and Ogle v Strickland (both above), with which I respectfully agree, that there should be no artificial or narrow limitation on the expression 'aggrieved'. The same applies to 'interested'. But the applicant's assertion here was that AFCO would be no more affected than any other member of the public. It therefore submitted that there is no question of discretion in this matter.

2. On the question of discretion, Jenkinson J. in Fordham stated at 477:
   

"The structure and verbiage of s 12(2) makes it clear that membership of the class defined in s 12(1) confers no right to joinder in a proceeding for an order of review under the Act, but merely a right to have exercised the Court's discretionary judgment whether to make the applicant under s 12 a party. The Act contains no statement of any criterion by reference to which the discretion is to be guided. The applicant's interest in the decision, by reason of which he or she gained entitlement to make the application under s 12, will no doubt afford a consideration in favour of granting the application. But the weight of that consideration may be great or small, according to the nature of the interest."

1. There again seems little doubt that AFCO has not established the 'interest' which the authorities have enunciated.
   Intervention

2. AFCO alternatively sought to be allowed to intervene in these proceedings. I take this application to be primarily to lead evidence, state a point of view and assist the court to understand, in the context of the litigation, the interests of the consumers whom AFCO is established to protect. Of interventions generally, Hutley J.A. in Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391 said at 396:
   

"A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney General of the Commonwealth of Australia v The Queen (the Boilermakers' case) (1957) 95 CLR 529, though he was only an intervener in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 in the High Court. See also Attorney-General for Ontario v Winner (1954) 2 WLR 418."

1. Whatever else can be said about that judgment in general and that passage in particular, it seems to me that this definition and distinction cannot be exhaustive, especially for non-statutory interveners. Even before the enactment of section 78A of the Judiciary Act 1903, the Federal Attorney General had long been regarded as occupying a special position in this regard, especially in constitutional matters. If based on the interventions cited by him, Hutley J.A.'s dictum cannot therefore be of general application. A person may, for example, be allowed to intervene on conditions, or on limited issues, or to argue a particular interest. Such an intervener will, amongst other things, not normally be subject to orders in the proceedings, including for the full taxed costs of the parties to the action. This type of intervention is akin to the amicus curiae procedure and is quite different to joinder as a party.

2. No cases were cited by AFCO to support this alternate request. In Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331 Dixon J., as he then was, commented on the question of intervention by States and the Commonwealth as 'persons interested':
   

"I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise."

1. The concept of intervention in court proceedings in Australia by right or title, while rare, is well established. The most well known example is the right of intervention bestowed by the Judiciary Act (section 78A) on the Attorneys-General of the Commonwealth, of each of the States and of the Northern Territory when a court proceeding involves a matter arising under the Constitution or involving its interpretation. Attorneys General do not have to be granted leave to intervene: State Bank of New South Wales v Commonwealth Savings Bank of Australia (High Court) (1986) 65 ALR 74; (Court of Appeal) (1986) 4 NSWLR 549.

2. Another example is the statutory power of intervention conferred upon the Director of Public Prosecutions by the Director of Public Prosecutions Act 1983. Section 15(a)(iii) declares the power of intervention, and section 6(1)(k) confers the function of appearing in extradition proceedings. In Hempel v Moore (1987) 70 ALR 714, the Director applied to be joined as a party in appeal proceedings arising out of an application by Israel for the extradition of a person from Australia. The Director had appeared in the magistrate's court proceedings to conduct the matter on behalf of Israel. The extradition treaty between Australia and Israel provided:
   

"The requested State shall arrange for the representation of the requesting State in any legal proceedings relating to the extradition of the person whose extradition is requested and shall otherwise represent the interests of the requesting State."

1. French J. found at 717 that:
   

". . . the appearance of the Director of Public Prosecutions in such proceedings is one way in which Australia may discharge its treaty obligation. It does not mean that he necessarily acts as counsel or solicitor for the requesting state. Such a role is only appropriate where the requesting party is a party to the proceedings."

1. Section 11(1)(o) of the Human Rights and Equal Opportunity Act 1986, section 20(1)(e) of the Racial Discrimination Act 1975, and section 48(1)(gb) of the Sex Discrimination Act 1984, confer upon the Human Rights and Equal Opportunity Commission the function of intervening, with the leave of the particular court, in cases involving human rights issues, including matters of sex and race discrimination. These interventions, which may be granted on conditions, appear to indicate a legislative intention that the Courts pay specific regard, in defining the common law, interpreting statutory law and exercising discretions, to Australia's international treaty obligations in relation to human rights. Leave has been sought and granted in two decided cases thus far: Tarumi Pty Ltd v Bankstown City Council, (1987) EOC 92-214 and Aldridge v Booth, Federal Court of Australia, Spender J., unreported, 30 May 1988. In both cases, the leave was sought and granted on certain legal issues only.

2. These statutory rights or obligations to intervene contain within the relevant statutes or by clear implication, the interests which the interveners are intended to advance or defend. A voluntary highly reputable but non statutory public body like AFCO, seeking to represent a general consumer interest in product safety, or like the ACF, seeking to advocate and ensure environmental protection, will not normally be an intervener in this category. Its role in the legal proceedings of others could only be to assist the court to understand the matter from a public standpoint, to provide any relevant expertise, and to describe as necessary any breadth of general effect if available discretions were exercised or decisions made one way or the other. This raises the question of its participation as an amicus curiae.
   Amicus Curiae

3. The origins of the amicus curiae are somewhat mysterious, although there are cases reported as early as the beginning of the 14th century. The device was known in Roman law. Instances are noted in the Yearbooks of 1353 (25 Edw III 65) and of 1486 (7 Edw IV 16). It was also found in the early French courts in limited form. The original "friend of the court" appears to have been a disinterested bystander who interposed and volunteered information on a matter of law which the Judge was overlooking or about which the Judge was apparently mistaken or doubtful: Fort Worth & Denver City Railway Co v Greathouse and Ors, Court of Civil Appeals of Texas (1931) 41 SW 2nd 418 at 422.

4. In Grice v R (1957) 11 DLR (2nd) 699 at 702, Ferguson J. in the Supreme Court of Ontario said:
   

"In its ordinary use the term implies friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard of which it is in danger of going wrong."

1. Holthouse's Law Dictionary described it in somewhat more genteel terms:
   

"When a judge is doubtful or mistaken in matter of law, a bystander may inform the court thereof as amicus curiae. Counsel in court frequently act in this capacity when they happen to be in possession of a case which the judge has not seen or does not at the moment remember."

1. Professor Samuel Krislov of Michigan State University wrote in Volume 72 of the Yale Law Journal (No. 4 of March 1964) that "the function of amicus curiae at common law was one of oral 'Shepardizing', the bringing up of cases not known to the Judge." Krislov cited one extreme instance of a member of the House of Commons who, as he had been present at the passage by Parliament of the relevant statute, wished to inform the court as amicus curiae of Parliament's intentions in doing so: Horton v Ruesby (1686) 90 ER 326.

2. The Yearbooks and early reports cite instances of amici curiae being more widely permitted - acting for infants (Beard v Travers (1749) 27 ER 1052); drawing attention to manifest error (The Protector v Geering (1656) 145 ER 394 - where it was said that interventions were welcome since "it is for the honour of a court of justice to avoid error"); giving information as to the death of a party (Falmouth v Strode (1701) 88 ER 949); and calling attention to existing appropriate statutes (The Prince's Case (1606) 77 ER 481). In the latter case at 516, the ultimate denouement occurred when the Court assailed the two amici curiae for their trouble:
   

"But in truth the serjeant and his son have not performed the office of a good friend or of a good informer, for they have omitted one clause in the same Act . . . and have thereby endeavoured to deceive the Court . . ."

1. These cases and later writings on the subject have demonstrated that the courts have always avoided a precise delimiting of the scope of the facility. This means that the judicial discretion to permit the intervention and its flexibility have been maximised. The amicus did not even have to be a lawyer. The Supreme Court of Missouri in Ex parte Brockman (1911) 233 Mo. 135 at 154; 134 SW 977 at 982 quoted this breadth with exquisite poetry:
   

"If such appearance was as amicus curiae and as a matter of grace, then that grace alone concerns us. Grace doth not abound through consent of one's adversary. It droppeth, withal, like mercy - as the gentle and refreshing dews of Heaven. It goeth where it listeth."

1. Ex parte Lloyd (Monte 69), an 1830 bankruptcy case, further illustrated the versatility of the amicus curiae concept. The court reporter for the case who was also a practising lawyer, had accepted retainers from both sides in the case. The Lord Chancellor, believing that in his official judicial role he could not advise the attorney which client to represent, appointed himself amicus curiae in which capacity he felt he could advise the lawyer which way to go.

2. The practice of permitting appearances amicus curiae in the American and Canadian courts has grown in the last 100 years in particular. Three general categories have developed:
   

1. Government - federal, state and local - and government agencies and bodies.

2. Private organisations of professional or other occupational membership - employers, commercial entities, trade unions, bar associations and many others.

3. Private associations and entities, in general formally organised, which purport to speak for non-occupational broad public interests - religious bodies, specific racial and minority groups, civil libertarians, organisations of and for the disabled, consumer advocates, etc.

1. The extent of the right in North America has also been expanded to include a person who
   

"has no right to appear in a suit but is allowed to introduce argument, authority, or evidence to protect his interests": Ladue v Goodhead (1943) 44 NYS 2nd 783 at 787; 181 Misc 807.

1. However, over 60 years ago, in Re Perry (1925) 148 NE Rep 163 at 165; 83 Ind App 456, the Appellate Court of Indiana said:
   

"Courts undoubtedly have the right to allow an attorney, or other person, to appear as a friend of the court in a case, to act as an adviser of the court, and to make suggestions as to matters appearing upon the record, or in matters of practice. An amicus curiae has no rights in the matter. He can file no pleadings or motions of any kind. He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal. It has been held in this state that an amicus curiae may, on leave, file briefs, argue the case, and introduce evidence."

1. In Meredith v State University of Mississippi (1964) 376 US 681, where the United States Supreme Court rejected the contention that there was a constitutional right of trial by jury, the Federal Government was permitted to intervene in the Court of Appeals. Its purpose was to prosecute the University leadership, the Governor and other State officials for criminal contempt in defying an Appeals Court order that Meredith, a black, be admitted to the University. In an application by the defendants for a trial by jury, a question arose as to whether the Government was a party or an amicus curiae. Justice Goldberg who dissented on the principal issue, wrote of the amicus curiae at 737-8 without apparent objection from the other Justices:
   

"A traditional function of an amicus is to assert an interest of its own separate and distinct from that of the

(parties), whether that interest be private or public. It is customary for those whose rights (depend) on the outcome of cases . . . to file briefs, amicus curiae, in order to protect their own interests . . . This Court has recognized the power of federal courts to appoint 'amici to represent the public interest in the administration of justice' . . . In this case the Government was serving essentially in that capacity. Its ultimate interest - securing compliance with the Court's orders requiring Meredith's admission - was identical with the interest of the private plaintiff, and it was invited by the court to render necessary aid in that direction."

1. The Government was thus an amicus advocating on the merits, not a mere intervener offering suggestions as to facts or law to the Court. From neutrality on the facts and assistance on the law, the amicus has become an advocate of a particular outcome of the litigation, even its initiator. (See generally Angell: The Amicus Curiae - American Development of English Institutions, 1967 International & Comparative Law Quarterly Vol 16 pp 1017-44)9

2. Australia has not seriously followed either the English common law or the developed North American practice. With rare exceptions, Australia has limited all interventions of outsiders to those prescribed or permitted by statute, those who could make out a case for joinder as a party, and those types of conditional or partial interveners of whom I wrote when earlier addressing the remarks of Hutley J.A. in Bradley (above). This is quite a different procedure to the so-called "McKenzie's friend" facility which has found favour in England: McKenzie v McKenzie (1970) 3 WLR 472; Mallock v Aberdeen Corporation (No. 2) (1973) 1 WLR 71; Reg. v Home Secretary ex parte Tarrant (1984) 2 WLR 613. This gives an unrepresented party to litigation the right to have a friend present in court to assist in the conduct of the hearing. This has been said in New South Wales, at least for criminal cases, to be a "matter of indulgence" by the trial Judge to be granted only "in extraordinary circumstances": R v E.J. Smith (1982) 2 NSWLR 608 at 614.

3. Other than the Australian Railways Union case (above) (which was decided more than 50 years ago and was in any event a constitutional matter not particularly requiring any outside specialist expertise), and the stout efforts of the Australian Conservation Foundation to which earlier references have been made, I have found no Australian authority which bears upon permissibility or desirability in this country of the amicus curiae procedure at trial, or impedes or limits its use.

4. The variegated complexity of modern life and technology, increasing materialism and the possible risks to the public of otherwise lauded scientific advances, have brought consequent significant legal challenges. These have been amplified not minimally by the burgeoning of statutory law expressing vague general principles and requiring the exercise of broad undefined judicial discretions. For the just resolution of these issues, the resultant mix beckons, if not requires, whatever assistance and expertise the Courts can reasonably muster. Consistent with the need for maximum possible conservation of the costs and duration of all litigation, it seems to me desirable that we adopt and adapt the English or American amicus curiae procedure as appropriate to each case.

5. Earlier I drew a possible distinction between the interests of AFCO as an organisation and those of its constituency of consumers whose concerns it exists to protect. Of course AFCO will be answerable under its constitution and derelict to its mandate if it fails to carry out its obligations to this constituency. On the other hand, these consumers too have nothing directly at stake in an application for the judicial review of any relevant administrative decisions or conduct here being examined. This case is primarily about whether there were errors of law in or preceding the convening of the conference of the Commission. It is not an application for a determination of the merits or demerits for consumers of smokeless tobacco products. That is why ultimately AFCO cannot be made a party.

6. On the other hand, it is clear that AFCO has the respect of the Minister, the Commission and significant sections of the community as a specialised body with expertise and capacity to assist in the due administration of consumer protection laws in Australia. Some of these laws, and some of the factual situations which attract their operation, are complex and concern considerable numbers and particular sectors of the public in particular, as well as the society as a whole. The smokeless tobacco products under discussion in this case are not widely known and understood. Speaking for myself, I know nothing at all about them except as evidenced in the pleadings and affidavits in these proceedings. AFCO may therefore be of considerable assistance to me in the resolution of the issues to be determined here. Its independence of commercial or government interests provides an additional dimension to the role which AFCO might be able to play if allowed to intervene as an amicus curiae.
   Conclusions

7. AFCO has failed to establish that it ought or is 'necessary' to be joined as party. It seems to me that all the relevant evidence will be available and all the matters in dispute between the parties can be resolved without AFCO as a party. AFCO has identified no relevant interest in these proceedings or their outcome, specific or particular to AFCO, beyond the fact that it made submissions to the Minister before, and was party to, the conference. Nor has it produced any evidence which bears on the issues between the parties. It is true that the conference may be halted by orders made in these proceedings, whether permanently so as to prevent its re-instigation or recommencement, or temporarily in the sense that it is permitted to be reconstituted. It is also true that in this event, AFCO will be 'affected' in the sense that it will not be able to be further heard in the current conference. However, if the conference ends, no one will be heard any more, and the Minister's actions will be nullified. Any views or desires of AFCO in relation to the use of smokeless tobacco will then be back in the Minister's court. If the conference continues or a new conference convenes, nothing done in this case will bear upon AFCO's status at the conference.

8. This is not the 'effect' being spoken of here. Referable to this case, AFCO must show that it, as an organisation, or even the general body of consumers whose wellbeing it seeks to advance, will or may suffer by an order in these proceedings, a financial or other substantive detriment. This it has failed, indeed not even tried, to do.

9. It is difficult for me to predict at this early stage of the proceedings to what extent, if at all, any public interest issues will be raised in this case. But to the extent that some such public interest issues are or may become part of the proceedings, it seems to me appropriate that AFCO be permitted to participate as an amicus curiae. If no wider issues arise, AFCO may have no or few interests to advance or concerns to protect, and its role may be negligible. As the matter proceeds through the interlocutory stages, this situation should become clearer. It will then be possible to hear argument on and define the appropriate extent and form of the intervention for this case.

10. I see no reason, by way of either principle or authority, why this role should not embrace a consideration by the Court in due course of AFCO's presentation of evidence omitted or overlooked by the parties, which is relevant to one or more of the issues before the Court, so as to assist the Court in its resolution of those issues, and to protect AFCO's own and its constituents' interests in the process. If contrary to my earlier expressed anticipation, AFCO has or wishes to proffer any such evidence, and the other parties have declined its offer that they present the material, AFCO may apply at a directions hearing or other appropriate stage to present the evidence.

1. I therefore give leave to AFCO to appear as an amicus curiae at and prior to the hearing of this matter. I reserve the costs of this motion to be argued at a convenient directions hearing. I will hear the parties at an appropriate stage concerning AFCO's costs as amicus curiae, but I state my understanding that the overseas practice is that amici curiae generally bear their own costs.