Wattmaster Alco Pty Ltd v The Honourable J.N. Button

[1986] FCA 115

Re: WATTMASTER ALCO PTY. LIMITED; WILLERS & Co. (Distributors) PTY. LTD.;
G.E.C. AUSTRALIA LIMITED; OMEGA APPLIANCES PTY LIMITED
And: THE HONOURABLE JOHN NORMAN BUTTON
No. NSW G430 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Administrative Law - decision set aside - date of effect of order setting aside.

Customs Tariff (Anti-Dumping) Act 1975 ss.5, 8(2)

Administrative Decisions (Judicial Review) Act 1977 s.16(1); s.5(1)(f)

HEARING

BRISBANE

#DATE 8:4:1986

For the applicants: Mr. P.P. Strasser instructed by Landerer & Co.

For the respondent: Mr. F.M. Douglas instructed by the Australian Government Solicitor.

ORDER

The order of 24 January 1986 have effect as from its date.

The costs of and incidental to the hearing of 28 February 1986 be taxed and paid by the applicants to the respondent.

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

JUDGE1

On 24 January 1986, I made an order that a decision of the respondent to publish a declaration pursuant to s.8(2) of the Customs Tariff (Anti-Dumping) Act 1975 in respect of sweep fans from Hong Kong of less than 1400 mm sweep be set aside with effect from a date to be determined. In my reasons, I expressed a provisional view that the date should be 24 January 1986, but gave the applicants an opportunity to have the matter relisted for further argument, which they did.

1. The power to specify a date is given by s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977:
   
   

"On an application for an order of review in respect of a decision, the Court may, in its discretion,

make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;"

1. A legal question arises as to the way in which the discretion should be exercised, but before coming to that, it is necessary to mention some matters which were said, as I understood counsel, to be points which should especially be taken into account.

2. It was argued for the respondent that the fact that a considerable part of the time which elapsed between the inception of the application and its determination was due to delay on the part of the applicants should weigh against them. Counsel for the applicants contended, on the other hand, that the delay was perfectly explicable.

3. It is my view that unless the delay in question is remarkably long, the mode of exercise of the power to fix a date should not depend upon attempts to attribute dilatoriness to one party or the other. Here, in respect of a matter of some complexity requiring extensive investigations overseas, the applicant managed to have the matter heard just over a year from its commencement; I would not regard the circumstance that they did not have the matter ready for hearing earlier as a fact to be taken into account against them.

4. Counsel, in arguing the question as to the proper date, also relied to some extent on aspects of the reasons delivered on 24 January. There was mention of the fact that the findings contained some criticism of the extent to which care was taken in ascertaining and applying the "Benchmark" domestic price. This appears to me quite peripheral, as not only was the point just mentioned a subsidiary one in the reasons, but the exercise as a whole was, as I said, a "most painstaking examination of the subject". Counsel also referred, apparently as relevant to the exercise of the discretion presently under consideration, to the fact that although it was held that the determinations relevant to the case were wrongly made under s.5(4) of the relevant Act, that applied only to one of the exporters. There were in fact two determinations and they were both purportedly made under s.5(4). It is true that the respondent issued a number of other documents headed "Direction to Adjust Normal Value", the precise legal effect of which I found it unnecessary to decide - but they were not, nor did they purport to be, determinations of normal value by exercise of ministerial powers under s.5 of the Customs Tariff (Anti-Dumping) Act 1975 mentioned.

5. I understood it to be agreed between counsel that under the general law - i.e. apart from the statute - the decision in question would, on the findings, be taken to have been void from the outset. It was suggested on behalf of the respondent that the legislature should not be taken to have intended a departure from the position subsisting under the general law unless it made clear its intention to do so.

6. It is important to notice that the Administrative Decisions (Judicial Review) Act, insofar as it provides for the review of administrative decisions, goes further in a substantive way than the general law. One respect in which it does so is that it makes error of law not appearing on the record of the decision a ground of review: see s.5(1)(f) of the Act. In a practical sense too, the procedures available provide a person aggrieved with a substantially better chance of proving a vitiating error than has one seeking a prerogative writ. That is so because the decision-maker may be forced to give reasons and discovery seems commonly to be given, despite the suggestion of the Full Court in Lloyd v. Costigan (9 May 1983, unreported) that discovery will "often be inappropriate". For these and other reasons successful legal attacks upon administrative decisions are now commonplace and I think it is legitimate to have regard to the practical consideration that much uncertainty would be engendered if such decisions were ordinarily overturned retrospectively.

7. Of course, many challenges to administrative action do not raise the present problem. For example, where an unsuccessful applicant for a licence or some similar governmental grant of a discretionary kind challenges refusal of an application for such a grant, setting the decision aside from its date would not necessarily help him. Any financial loss incurred because of an initial wrongful refusal is likely to be irrecoverable, except by the rather unpromising means of an action for damages for breach of duty. Putting that point more generally, in many instances the court cannot assist the applicant by backdating the order; whether such a step will alleviate his position depends on the nature of the decision attacked. It does not, therefore, seem possible to achieve the result by adopting a policy of backdating the effect of the order, that delay between the attacked decision and the Court's judgment will never hurt a successful applicant.

8. On the whole, it seems to me right to reject the argument based on the position under the general law. I think there is a complete discretion, but unless some positive reason appears for making the order take effect from the date of the decision attacked, it should take effect from the date of the order. The expression used in par.16(1)(a) is "... with effect from the date of the order or such earlier or later date as the court specifies". No specification is necessary to make the order operative straight away.

9. It is my view that there is an onus upon a party desiring specification of an earlier or later date to show why that should be done; in the absence of any such specification, as I read the provision, the Court's order takes effect from its date. I do not think the applicant here would have to advance a case of any considerable strength to achieve specification of an earlier date, but in my opinion, all the applicant can put forward is the bare fact that the decision was made without taking account of a relevant consideration, and in such circumstances as to call for the exercise of the discretion to set it aside; no particularly reprehensible conduct on the part of the respondent can be pointed to, nor can it be said that those affected must have acted on the assumption that the decision was unlawfully made.

10. Although it is not strictly necessary to specify any date of effect unless it is to be earlier or later than the date of the order, in view of the terms of the order of 24 January 1986, it is desirable to be explicit. It will therefore be ordered that the order of 24 January 1986 have effect as from its date.

11. As the further hearing of the matter took place at the instance of the applicant, it will be further ordered that the costs of, and incidental to, the hearing of 28 February, 1986 be taxed and paid by the applicants to the respondent.