Walton, J.R. v Repatriation Commission

[1992] FCA 1017

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Mq-22

JUDGMENT NO. .!.%!d .... l .... ..... ! '

IN THE FEDERAL COURT OF AUSTRALIA )

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FEW SOUTH WALES DISTRICT REGISTRY ) No. NG933 of 1992

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GENERAT, DIVISION 1 ,

BETWEEN :  JUDIE RUTH WALTON

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Applicant

AND :

22 December 1992

REASONS FOR JUDGMENT

LOCKHART J.

This is an unfortunate dispute that has arise

certain affairs at the Concord Repatriation General Hospital

Sydney.

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The applicant is a research scientist with considerable experience and qualifications with respect to research into ageing and Alzheimer's Disease, as well as other disciplines.

The laboratory facilities at those two wards are unique, containing specialised laboratory equipment for the carrying out

She has been for some years past, and presently is, engaged in research work at the hospital which is carried on in what are described as laboratory facilities at Ward 31 and the animal colony at Ward 29. The hospital is managed and operated by the respondent, the Repatriation Commission, a body corporate under

the V e t e r a n s E n t i t l e m e n t s Act 1986, (ss. 179 and 180).

of bio-medical research at the sub-cellular level and including an ageing rat colony forming an animal model for human biology with particular emphasis on the study of human ageing. The facilities are currently in use for the conduct of research experiments on behalf of the Sydney Water Board and the Urban Water Research Association of Australia into whether intake of aluminium via the water supply may lead to an increased risk of cont~acting Alzheimer's Disease. Those experiments are carried out pursuant to approvals from the University of Sydney Animal Ethics Committee granted to the applicant herself.

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The facilities are in the two separate neighbouring buildings at the hospital to which I have referred, and access to them is gained by internal hospital road and requires a minimal interaction with hospital staff. At the present time, the reasonable financial charges and expenses forthe applicant's continued use of the facilities are met to a substantial degree from funds provided to her by the Sydney Water Board and/or the Urban Water Research Association of Australia.

The Sydney Water Board has contracted for the construction of four major water treatment plants for the Sydney urban region at a cost of approximately $500,000 million to enable the Board to provide water to its consumers in accordance with health guidelines and guidelines as to safety. The water treatment plants are currently designed to use aluminium as a coagulating agent as part of the water treatment process.

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The Water Board has requested the applicant at the cost of the Board to carry out urgent research using the unique ageing rat colony at the hospital to determine whether it is safe to use	l
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aluminium.	1 ,

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The applicant had been involved in discussions with officers of the commission for some little time on the question of her	!
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continuing to act in her present capacity as Visiting Scientist	1
but on 20 October 1992 a letter was written by the Chief	I !
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~xecutive Officer of the respondent to her saying so as far is I

material, the following:

"Dear Dr Walton, you will recall from discussions that we have had over a number of months that I advised you that specific funding to support your salary from the hospital's resources would no longer be available after this current calendar year. Therefore in accordance with the terms and conditions of the agreement relating to your engagement by the Repatriation Commission as a Visiting Scientist, I am writing to advise that your appointment which terminates at midnight on 22 January 1993 will not be

renewed. "

That letter was preceded by certain correspondence and has been
followed by a fair degree of correspondence between the parties	l :
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and those acting of their behalf.	I

The current contract between the parties is in evidence and

I am informed that it follows substantially the same terms as

three prior contracts. The current contract contains, amongst

other provisions, clause 3, namely, that the terms and conditions of the agreement are those set out in the written agreement itself and in the letter of appointment and no written or oral agreement, arrangement or understanding made or entered into prior to the date of execution of the letter of appointment, shall in any way be read or incorporated into the agreement.

Clause 5 sets out the services to be provided to the respondent by the Visiting Scientist, namely in this case, the applicant. Clause 6 is an important provision, and it provides so far as is relevant:

"6 .1 S u b j e c t t o t h i s c l a u s e , t h e t e rm of t h e c o n t r a c t o f t h e V i s i t i n g S c i e n t i s t under

the agreement s h a l l commence on 23 January

1992 and t e r m i n a t e a t m idn igh t on 22 January

1993. "

6.3	A	V i s i t i n g S c i e n t i s t who	i s c o n t r a c t e d
t o p rov ide	services	under	t h e agreement

o t h e r t h a n one t o whom sub-c lause 2 a p p l i e s

. . . s h a l l be e l i g i b l e a t o r b e f o r e the

e x p i r a t i o n o f the agreement t o a p p l y f o r re-

appointment a s a V i s i t i n g S c i e n t i s t . "

Clause 12 is an arbitration clause upon which nothing turns

for present purposes.

The applicant commenced this proceeding by the filing of an
application for an order of review on 17 December 1992 in which

she seeks an order of review, under the A d m i n i s t r a t i v e Decisions ( J u d i c i a l Review) A c t 1977, of the decision of the respondent

acting by its delegate conveyed by the letter of 20 October 1992,
the relevant terms of which I set out earlier.

The applicant claims to be a person aggrieved by the decision. She asserts that the grounds of the application are as follows. I shall recite them, not just in terms of the application because it is cast in somewhat general terms; but I shall add where necessary the details which were furnished today in argument by M r Bryson-Taylor on her behalf.

The first ground of attack on the decision of 20 October is that it is said to constitute a breach of the rules of natural justice in that she was not afforded an opportunity to be heard in relation to the decision before it was made.

Second, it is said that the decision was an improper exercise of the power in that it took an irrelevant consideration

into account in the exercise of the power, namely, that funds

were not available to the respondent to support the applicant's	.
research work, it being said that the funds are, if not fully,	then, substantially, provided by the Sydney Water Board or the
other body to which I have referred.
Third, it is said that the respondent failed to take a relevant consideration into account in the exercise of the power, namely, the importance and urgency of the work of the Water Board, and, in relation to that work, the significance of the research work being undertaken by the applicant at the hospital.
Finally, it is said that the decision constituted an exercise of a power that is so unreasonable that no reasonable person could have so exercised it. The unreasonableness is said to be constituted by the applicant's, and the Water Board's, deprivation of the unique research facilities currently being utilized at the hospital.
The respondent has filed an objection to the competency of the proceeding on the ground that the decision sought to be reviewed is not a decision of an administrative character made under an enactment for the purposes of the Judicial Review Act.
The matter that the Court is considering this morning is a motion by the applicant that the decision of the respondent of 20 October 1992 be suspended until 4 February 1993, or such other time as the Court may direct. The applicant also seeks an order that the applicant should continue to have access to and use of
the facilities, equipment and staff of Ward 31 and of the ageing	rat colony in Ward 29 at the hospital in the meantime. She seeks
also an order that the respondent refrain from doing anything to prevent her from continuing to have access to, and use of, the facilities, equipment and staff, and the ageing rat colony.
This being (as it is) a motion for interlocutory relief, the principles to be applied need not be stated as they are well known: it is essential for the applicant to establish that there is a serious question to be tried at the final hearing; and, if she crosses that threshold successfully, then, on the balance of convenience, it is appropriate to grant relief of the kind which she seeks.
There is, I think, one fundamental problem with this application and motion, and it is this. The contract between the parties is the one to which I have already referred, and it is plainly a contract to operate for a period of twelve months from 23 January 1992 to 22 January 1993. Although it was suggested by M r Bryson-Taylor that there is to be found, from the evidence, material supporting the assertion that there is some over-riding arrangement between the parties to the effect that the applicant will be entitled to use the facilities at the two wards, 31 and 29, at the hospital for her research work, to continue in some way for an indefinite period; I can find on the material before the Court at this stage no evidence to support that proposition.
Reference was made to some note of a discussion (the note being annexure B to the applicant's affidavit of 19 December 1992, and recording a discussion between the applicant and a Professor Broe); but that note does not support this contention made on the applicant's behalf.

I am left in the position where it seems to me that the only

contractual arrangement between the parties that can be supported is the one which is set out in the Visiting Scientist agreement to which I have already referred. It must follow that on 22 January 1993 that agreement comes to an end. It is plain on the evidence presently before the Court that it is not the intention of the respondent to renew it.

To grant the primary order sought in the motion (that is, to suspend the decision of the respondent to a date beyond 22 January 1993) would be an order tantamount to obliging the parties to maintain a fresh contractual arrangement between them, l and that I think is something which the Court cannot do.

The power to stay an order is one granted by S. 15 of the

J u d i c i a l R e v i e w A c t . I accept the correctness of the submission

of counsel for the respondent that there is nothing relevant to stay because, to stay the operation of the decision of 20 October

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1992, is really to bring into being a fresh or renewed contract	i -
between the parties.	That, I say with some regret, must dispose

of the motion against the applicant. i

The question whether there is a decision under an enactment is I think a debatable question and one which, in the light of	1. I
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the finding I have just made, is not necessary for me to decide at this interlocutory stage. There is, I think, considerable
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force in the submission of counsel for the respondent that what
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is really being sought in this case is that the applicant in effect wishes to re-write the present contract between the parties in quite different tenns, involving the use of the facilities at the hospital which she presently enjoys, substantially for the benefit of the Water Board.
The applicant does not suggest that, in the course of her research work, she would not allow the hospital to enjoy some benefit from her research, if indeed there is any such benefit that it can enjoy. There seems to be little doubt on the material before the Court at the present, that it is really the Water Board which is to fund the substance of the research work, no doubt highly valuable research work, and that it is the Board, and perhaps therefore the people of this State, who will benefit from it. But it is a different contract that the applicant is seeking to have re-written by the respondent. That is something which, in my view, the Court cannot in effect force upon the parties in these proceedings.
I do not find it necessary in the circumstances to deal with considerations were not taken into account, or irrelevant	the other questions argued by counsel as to whether relevant
considerations were taken into account, except to say that the present contract between the parties is one whereby the services of the applicant are remunerated by the respondent and that the ground assigned by the respondent in its letter of 20 October is one that I do not think has been impugned. Essentially the problem that has arisen is that the applicant wishes to continue her work on terms somewhat different to those envisaged by the present contract. It follows that the motion must be dismissed.
Before I leave the motion I wish to say that it is an unfortunate dispute that has arisen and it is to be hoped that the parties may be able in some way to resolve the impasse that has arisen,with the benefit of the research work that is being undertaken accruing to the Board and the community. It is also to be hoped that the facility which has been established is one that will not be entirely lost to the community. However, that is essentially a matter for the parties to sort out, if they can. It is not a matter in which the Court can assist at this stage.

Accordingly, the motion is dismissed.

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The proper order for costs is that the costs of the motion be the respondent's costs in the proceeding.

The application is adjourned to 11 February 1993 at 9.30 am

for further directions.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for

Dated: 22 December 1992

Solicitors for the Applicant :	B r y s o n - T a y l o r	&
Associates
Counsel for the Respondent

Solicitors for the Respondent :	Australian Government Solicitor
Date of Hearing	22 ~ecember  1992
Date of Jddgment	22 December 1992