Wayne Ellis Creaser v Savannah Associates Limited
[2003] ACTCA 26
WAYNE ELLIS CREASER v SAVANNAH ASSOCIATES LIMITED,
WYLKIAN PTY LIMITED, AUSTRALASIAN SPECTACULARS
PTY LIMITED and HAROLD SCOTT UPTON
[2003] ACTCA 26 (19 DECEMBER 2003)
JUDICIAL REVIEW – permits to handle dangerous goods – application by foreign corporation – whether corporation “fit and proper person” – need for decision maker to identify persons exercising control of corporation.
ADMINISTRATIVE LAW – application for permit not in accordance with form – need for application to provide appropriate information for decision maker.
Administrative Decisions (Judicial Review) Act 1989
Dangerous Goods Act 1975, s 8(1A), s 17, s 21(1A), s 45
Dangerous Goods Act 1984
Corporations Act 2001 (Cth), s 601CH, 610CJ
Legislation Act 2001, s 40
Regulations under the Dangerous Goods Act 1975, reg 6, reg 7
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Hughes and Vales Proprietary Limited v The State of New South Wales (No 2) (1955) 93 CLR 127
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for Australian Capital Territory Revenue v AlphaonePtyLtd (1994) 49 FCR 576
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No ACTCA 13 of 2003
No SC 275 of 2001
Judges: Crispin P, Connolly and Wilcox JJ
Court of Appeal of the Australian Capital Territory
Date: 19 December 2003
IN THE SUPREME COURT OF THE )
) No ACTCA 13 of 2003
AUSTRALIAN CAPITAL TERRITORY ) No SC 275 of 2001
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:WAYNE ELLIS CREASER
Appellant
AND:SAVANNAH ASSOCIATES LIMITED
First Respondent
WYLKIAN PTY LIMITED
Second Respondent
AUSTRALASIAN SPECTACULARS PTY LIMITED
Third Respondent
HAROLD SCOTT UPTON
Fourth Respondent
ORDER
Judges: Crispin P, Connolly and Wilcox JJ
Date: 19 December 2003
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The orders of Higgins CJ of 2 May 2003 be set aside and, in lieu thereof, it be ordered that the application for an order of review be dismissed with costs.
The respondents, Savanah Associates Limited, Wylkian Pty Limited, Australasian Spectaculars Pty Limited and Harold Scott Upton, pay the costs of the appeal incurred by the appellant, Wayne Ellis Creaser.
IN THE SUPREME COURT OF THE )
) No ACTCA 13 of 2003
AUSTRALIAN CAPITAL TERRITORY ) SC 275 of 2001
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:WAYNE ELLIS CREASER
Appellant
AND:SAVANNAH ASSOCIATES LIMITED
First Respondent
WYLKIAN PTY LIMITED
Second Respondent
AUSTRALASIAN SPECTACULARS PTY LIMITED
Third Respondent
HAROLD SCOTT UPTON
Fourth Respondent
Judges: Crispin P, Connolly and Wilcox JJ
Date: 19 December 2003
Place: Canberra
THE COURT:
This is an appeal against a decision of Higgins CJ of 2 May 2003 to set aside, pursuant to the Administrative Decisions (Judicial Review) Act 1989 (the ADJR Act), 11 decisions made by the appellant, on 31 August 2001. The appellant made those decisions in his capacity as Chief Inspector of Dangerous Goods and pursuant to the Dangerous Goods Act 1975 (the DG Act). The 11 decisions were refusals to grant various permits required for the purpose of importing, keeping and selling fireworks. The applications for the permits were made by Savannah Associates Limited, Wylkian Pty Ltd, Australasian Spectaculars Pty Ltd and Harold Scott Upton, the respondents to the present appeal.
The Chief Inspector, in his statement of reasons for each decision, decided against each applicant on multiple grounds, and the Chief Justice set aside those decisions on multiple grounds. However, it seems to us that each of the decisions of the Chief Inspector, to refuse to grant a licence, was justified on one or both of two fundamental grounds. On that basis, and without needing to consider all the other matters discussed by the Chief Justice, we would set aside his Honour’s decision and allow the original administrative decisions to stand.
The first of the two grounds relates only to the applications by Savannah Associates Ltd. The Chief Inspector denied licences to this applicant on the basis, amongst other bases, that he was not satisfied that the applicant was a fit and proper person to hold a licence. The second ground concerns the applications by Wylkian Pty Ltd, Australasian Spectaculars Pty Ltd and Harold Scott Upton. The Chief Inspector decided, amongst other things, that these applications were not in proper form or accompanied by the proper fee and so could not be approved.
In relation to each decision, it seems to us that the Chief Inspector came to the only decision that was legally open to him. None of his decisions should have been set aside pursuant to the ADJR Act. We are mindful of the remarks of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, where his Honour said (at 40) -
‘The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
For the reasons which follow, we will allow the appeal and dismiss the application for judicial review. This order will have the effect that the decisions refusing the licences will stand. There is nothing in the Act which precludes applicants who have been denied a licence from re-applying, in proper form, and with the appropriate information.
The Savannah Associates Limited applications - Fit and proper person
On 8 May 2000, Savannah Associates Ltd lodged four applications with the Chief Inspector on the appropriate application form. The applications were for a licence to import, a licence to sell, and two licences to keep, fireworks. In relation to each type of licence, the DG Act requires the Chief Inspector of Dangerous Goods to be satisfied (amongst other matters) that the applicant is a fit and proper person to hold the licence or permit. Section 17 of the DG Act relevantly provides:
17. Import licences and permits
....
(3)The chief inspector shall not issue a licence or permit under this section authorising the importation into the ACT of explosives unless, having made due inquiry, the chief inspector is satisfied -
(a)that the applicant is a fit and proper person to hold the licence or permit;
There is a similar limitation in connection with a licence to sell (s 21(1A)) and a licence to keep (s 8(1A)).
In respect of each category of licence, the legislation states that the Chief Inspector “shall not issue” the relevant licence unless, having made due inquiry, he is satisfied that the applicant is a “fit and proper person”. The legislature thus requires the Chief Inspector to be positively satisfied as to the appropriateness of the person or corporation seeking the licence.
A “fit and proper person” test is commonly found in regulatory legislation, whether as a factor that can disqualify a person from holding a licence or permit, if an adverse finding is made, or as a qualification which must be established by way of a positive finding, as in this regime. It is a test that allows a broad range of factors to be considered by the decision maker. In Hughes and Vales Proprietary Limited v The State of New South Wales (No 2) (1955) 93 CLR 127 Dixon CJ, McTiernan and Webb JJ said (at 156) -
The expression “fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”…
The precise application of this test to a particular case will depend upon the nature of the activity being regulated. Knowledge and ability are clearly relevant, but the type of knowledge and ability that would need to be demonstrated as a fit and proper person, say, to practice law, would be very different from the type of knowledge and ability that would need to be demonstrated to satisfy the Chief Inspector of Dangerous Goods that a person was a fit and proper person to import, keep or sell regulated dangerous goods such as fireworks.
This much was made clear in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where Toohey and Gaudron JJ said at 380 that –
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In order to make a positive finding that an applicant for a licence to import, sell or keep fireworks is a fit and proper person, the Chief Inspector would need to know something about the applicant’s knowledge and experience in handling and dealing with dangerous goods, and would need to know whether or not the applicant had any record of relevant improper conduct.
An applicant for each of these four licences was identified on the application form as the corporate entity “Savannah Associates Ltd”. The applications to import and sell, though not the two applications to keep, also identified Mr Michael John Parker as an applicant.
Upon receipt of the applications, the Chief Inspector caused a company search to be undertaken. This revealed that Savannah Associates Limited is a registered foreign company incorporated in the British Virgin Islands. The sole nominated director of Savannah Associates Limited is another company, Wyndham Pty Ltd, which is a company registered in Monrovia, Liberia. A company search of 14 May 2001 revealed that Harold Scott Upton was appointed, on 29 January 2001, as the local agent of Savannah Associates Limited, pursuant to s 610CJ of the Corporations Act 2001 (Cth) (the Corporations Act), in place of Mr Parker, who had been appointed as the local agent on 16 June 2000.
With this information, the Chief Inspector wrote on 22 June 2001 to Mr Parker at the address provided for Savannah Associates, with copies of the letter to Mr Upton and to the solicitor who then had carriage of the interests of all of the applicants for licences. The letter stated, inter alia –
As Savannah Associates Ltd is a company I am unfamiliar with, in terms of operations and experience, I also require that you provide me with details of the directors of the company and their experience, and/or the company’s experience, in the safe keeping and handling of explosives. This will assist me in being able to determine that the applicant has the requisite knowledge and capability to ensure that explosives are kept and handled in a safe manner.
In relation to the applications for licences to keep, could you also clarify, who the intended licensee is, Savannah Associates Ltd or Mick Parker. If the intended licensee is yourself, could you please provide your full name, date of birth and provide a copy of a recent police record check. In a conversation with Mr Harold Upton on 21 June 2001, he stated that you were a director of Savannah Associates Ltd.
It is common ground that there was no reply to this letter, and the information sought was not provided, although the solicitors wrote a letter on 21 August 2001 that asserted that the Savannah applications were all applications by that company. They did not explain the position of Mr Parker who, in two cases, was also listed as an applicant. The Chief Inspector had knowledge of the experience, qualifications and expertise of Mr Upton in the safe handling of fireworks. Mr Upton has been involved in various facets of the fireworks industry in the Canberra region since 1993. At all times since then, he has held fireworks permits.
In his statements of reasons, the Chief Inspector said, relevantly to these decisions, that he could not be satisfied that Savannah Associates Ltd was a fit and proper person:
It appears that Savannah Associates Ltd does not have an entity in Australia who could be held responsible for any matters that may arise requiring enforcement of the Dangerous Goods Act 1975, including responsibilities required of the holder of a licence to keep explosives.
Savannah Associates Ltd, is a registered foreign company incorporated in the British Virgin Islands, with the sole nominated director being a company, Wyndham Pty Ltd, registered in Monrovia, Liberia. I note that no natural persons are named as directors. A company search of 14 May 2001 shows Mr Harold Upton as the appointed local agent (as of 29 January 2001) and Mr Michael John Parker as the previous local agent (appointed 16 June 2000 - after the date of the application of 8 May 2000). Section 610CJ of the Corporations Act sets out that a local agent of a registered foreign company is personally liable only for a penalty imposed for a contravention of the Corporations Act. I sought and obtained legal advice to the effect that their liability does not extend to breaches of the Dangerous Goods Act.
No information has been provided of the experience or expertise of Savannah Associates Ltd in relation to the handling of explosives. This information was requested in correspondence to the applicant of 22 June 2001. The only information provided has been in relation to experience of the person appointed as the local agent for the purposes of the Corporations Act. In the interests of public safety I need to be satisfied that the applicant, rather than the local agent for the purposes of the Corporations Act, has the required capability to ensure that explosives to which the application relates will be handled in a safe manner. I have not been satisfied of this requirement.
The argument advanced below, in relation to the Savannah applications, was that the Chief Inspector erred in law in determining that he must have information about the corporate applicant for the licences; it was sufficient that he have appropriate information about the local agent. In his reasons for decision on this ground, the Chief Justice said at [22] -
The information provided by (or on behalf of) the applicant disclosed that Savannah was a foreign company, registered in the Virgin Islands. Its sole director was another company, registered in Liberia.
However, the local agent was Upton. His experience and qualifications were well-known to the respondent, he having held various explosives licences in the past and, in consequence, having been found to be a fit and proper person. His predecessor as agent was Mr Michael Parker. He was equally well-known to the respondent.’
Section 601CJ of the Corporations Act 2001 provides:
A local agent of a registered foreign company:
(a)is answerable for the doing of all acts, matters and things that the foreign company is required by or under this law to do; and
(b)is personally liable to a penalty imposed on the foreign company for a contravention of this Act if the court or tribunal hearing the matter is satisfied that the local agent should be so liable.
It is axiomatic that a company can only act through the agency of natural persons. In this case, the local agent.
Thus, insofar as the respondent assumed that the company itself should have experience in the handling, storing or transportation of explosives, he was in error. It follows that the respondent further erred in considering that he had insufficient information concerning “the experience of the company”.
The appropriate approach that should be taken, when considering whether a corporate entity satisfies “a fit and proper person test”, is that laid down in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond. Their Honours said at 382-–383:
When the question is whether, having regard to its character or reputation, a company is fit and proper, the answer may be given by reference to the conduct, character or reputation of the persons by and through whom it acts or who are otherwise relevantly associated with it. The identity of the persons relevant to the character and reputation of a company will necessarily vary according to the circumstances of the company under consideration. At one extreme, if a person regularly exercises control in all important matters affecting the company’s activities, then, ordinarily, the question will be sufficiently answered by reference to that person. At the other extreme, if no person is in a position of control or if one person, although in a position to exercise control, regularly delegates that control to others, then it will ordinarily be necessary to have regard to the persons who manage the company’s affairs and activities. The question whether it is sufficient to have regard to one person or necessary to have regard to others when determining whether a company is fit and proper is one that depends on the circumstances of the company and not on any legal requirement imported by the expression “fit and proper”.
This process of reasoning looks to effective control of a company’s affairs. In the context of the present applications, it should be noted that Savannah’s application for a licence to import identified the relevant quantity of explosives as ranging from three tonnes to six tonnes, these measurements being set out as “Net Explosive Quantity”. Where the context of the “fit and proper person” test is an application to import a substantial quantity of explosive material, it seems to us that the process of enquiry suggested by the High Court in Australian Broadcasting Tribunal v Bond would require the decision maker to be satisfied that the person or persons in effective control of the company was or were fit and proper, in the sense of being an appropriate person or persons to have control of such material.
We believe his Honour was in error in stating that it was sufficient to consider the local agent. The Chief Inspector’s statutory obligation is to consider whether the applicant for a licence is a fit and proper person; not merely to consider the applicant’s local agent. In this case, the applicant was a foreign corporation situate in the British Virgin Islands. The only thing known about this company, other than the name of its local agent, was that its sole director was a company incorporated in Liberia. This information told the Chief Inspector nothing about the person or persons who controlled the applicant.
A local agent of a foreign corporation, appointed pursuant to the CorporationsAct needs only to be an Australian resident and to be authorised to accept service on behalf of the foreign corporation. The local agent can be held responsible for breaches of the Corporations Act. However, a person acquires no control over the affairs of a company by reason of his or her appointment as its local agent under the Corporations Act. Moreover, the local agent can be removed at any time by those who control the company: see s 601CH of the Corporations Act.
It follows that, in holding that the Chief Inspector should have accepted Mr Upton’s appointment as sufficient, his Honour erred. The Chief Inspector was required under the Act to be satisfied as to the fitness of the corporate applicant. Pursuant to the reasoning in Australian Broadcasting Tribunal v Bond, the proper approach to this question was to enquire as to who exercised management authority. The Chief Inspector’s inquiries about this were not answered by the applicants for the licences. Under those circumstances, the Chief Inspector would have erred if he had assumed, in the absence of any evidence, that Mr Upton was in control of the corporation. If he was in control, Mr Upton could surely have provided evidence of that fact in response to the Chief Inspector’s enquiry of 22 June 2001.
We uphold the present appeal, in relation to the four Savannah applications, on the ground that his Honour erred in law in holding invalid the Chief Inspector’s decisions about them. The approach adopted by the Chief Inspector on this issue was correct.
The applications not in proper form
Five applications were rejected by the Chief Inspector on the principal basis that they were not in proper form. These were applications from Wylkian Pty Ltd for licences to import fireworks and to keep fireworks, and applications from Australasian Spectaculars Pty Ltd for licences to import fireworks, to keep fireworks, and to sell fireworks.
The origin of each of these applications was a letter from Australasian Spectaculars Pty Ltd, dated 26 July 2000, from Mr Upton to the Chief Inspector of Dangerous Goods. The letter stated -
ACT Licence Requirements
As discussed I have enclosed a brief summary of the three (3) legal entities that require ACT Dangerous Goods Licences to operate their businesses.
By way of background I am the director of Wylkian Pty Ltd and the Director of Australasian Spectaculars Pty Ltd. This situation may not remain if one or both entities are sold at some future stage.
I have also agreed to act on behalf of Savannah Associates (new owner of ACT Business Name “ACT Fireworks”) to ensure that they are able to legally trade in their own right as part of the “Sale Agreement” between Wylkian and Savannah.
Wylkian intends to import fireworks into the ACT to sell to Savannah, Australasian Spectaculars and to offer a wholesale arrangement to ACT retailers.
Wylkian does not intend (after the sale of ACT Fireworks is finalised) to keep explosives in the ACT although a licensed portable magazine may be required to bring 1.3G into the Territory for delivery to purchasers.
To avoid the ongoing delays and litigation that has become all too familiar with these applications I respectfully request that you prepare the necessary applications for each of the entities. The completed applications could then be forwarded to PO Box 1919 Fyshwick ACT 2609 where they can be signed and returned to you with the appropriate payment for issue. Please advise me in writing of your decision in this matter.
On 21 November 2000, a further letter was sent to the Chief Inspector on Australasian Spectaculars’ letterhead. The letter requested a statement of reasons for not issuing these licences.
The parties seeking the licences, the present respondents, initiated their challenge to the failure of the Chief Inspector to grant them the licences by filing an originating application on 4 May 2001. At this stage, the basis of their application was that the Chief Inspector had failed to make the relevant decisions. At a directions hearing before the Chief Justice on 17 August 2001, it became apparent that the Chief Inspector had raised with the applicants the issue that they had not used appropriate forms in making their applications. His Honour then made a suggestion to the parties -
... why don’t we do this? Why don’t we say you [the applicants] provide all the information you’re now told you haven’t up to date provided, including if necessary an application form, in whatever form is currently used. And if you can do that within 7 days, we’ll grant the respondent a further 7 days in which to consider whether to approve or not those applications.
Unfortunately, the applicants did not follow the course suggested by his Honour. They did not submit applications on the proper forms. It was because of that circumstance that the Chief Inspector decided, on 31 August 2001, to refuse each of the applications. In giving his reasons, the Chief Inspector said -
Neither a completed application form nor all of the required information requested in an application form accompanied the correspondence of 26 July 2000 or 21 November 2000. Neither a completed approved form, nor all of the required information requested in the form accompany the letter of 4 May 2001 or the information sent to me on 22 August 2001 in response to the Directions of Justice Higgins of 17 August 2001. An approved application form was provided to the applicant’s solicitor on request on 17 August 2001 following that decision.
The Chief Inspector concluded -
I am not satisfied that due application has been made in accordance with the requirements of the legislation, on any of the 26 July 2000, 21 November 2000, 4 May 2001 or on 22 August 2001.
The decisions of the Chief Inspector of 31 August 2001, to refuse each of the licence applications, were the decisions set aside by Higgins CJ.
The period during which documents passed between the licence applicants and the Chief Inspector ran from 26 July 2000 to 22 August 2001. As at 26 July 2000, the provision concerning the form of an application was reg 6 of the (Australian Capital Territory) Regulations made under the Dangerous Goods Act 1975 (NSW). At this time, the New South Wales Act applied in the Territory by force of the Dangerous Goods Act 1984 (ACT). Regulation 6 provided -
An application for a licence or permit, for the renewal of a licence or for the alteration of the particulars set out in a licence or permit is not duly made unless the requirements of this Division that relate to the application are complied with.
Regulation 7 provided -
An application referred to in clause 6 shall be -
(a)in accordance with the form of application provided by the Chief Inspector for the purpose of making that application; and
(b)lodged with the Chief Inspector
Following the commencement of the DG Act, the regulations were repealed. Section 45 of the DG Act, which was in force at the date of the decision (31 August 2001), provided as follows in relation to the form of an application -
45. Approved forms
(1)The Chief Inspector may, in writing, approve forms for this Act.
(2)If the Chief Inspector approves a form for a particular purpose, the approved form must be used for the purpose.
It will be apparent that, at all times between the letter of 26 July 2000 and the Chief Inspector’s decisions of 31 August 2001, there was a requirement, either under the Regulations or the new Act, that an application for a licence be in accordance with an approved form.
The print of the Act, as at the time of Higgins CJ’s decision, contained a sub- section (3) in s 45. This subsection provided that a form under the Act is a notifiable instrument; consequently, a form is only to be treated as approved if it has been notified and tabled in the Legislative Assembly. However, this provision only came into effect on 12 September 2001. So it does not matter that the forms approved by the Chief Inspector had not been notified to the Legislative Assembly at the date of his decisions. This is now common ground. The situation was not so clear when the matter was before the Chief Justice. That may explain his Honour’s comment, at [47]: “It is common ground that no forms had been approved as at the decision date”.
In summary, the legislation at the relevant time empowered the Chief Inspector to approve forms, and provided that, if a form was approved, that form must be used.
Counsel for the respondent argued before us that there is no evidence that relevant forms were approved. That argument was not put at first instance. It is untenable. In his reasons for decision, the Chief Inspector had asserted that “approved forms” were provided to the respondents. In his affidavit, the Chief Inspector had deposed to the truth of the facts stated in his statement of reasons, including that approved forms were provided. His evidence was not challenged. Upon the basis of this evidence, together with the presumption of validity now given expression by s 40 of the Legislation Act 2001, we must proceed on the basis that there were, at all relevant times, approved forms available for persons or corporations that sought licences under the DG Act.
At paragraph 47 of his reasons, Higgins CJ said -
It is doubtful whether s 45 would, even if forms were approved, permit refusal of an application which nevertheless provided all relevant information, merely because it was not in accordance with the “Approved form”.
We need not express a concluded opinion about this proposition. Even if it is correct, the “applications” in the present case did not provide all the required information. It will be recalled that, in his letter of 26 July 2000, Mr Upton requested that the Chief Inspector prepare the necessary applications for each of the licence applicants. However, Mr Upton did not supply all the information that would have been needed to enable the Chief Inspector to do this or properly to exercise his discretion in relation to the applications themselves.
Mr LG Foster SC, counsel for the respondents, submitted that, in requiring applications to be in accordance with the approved forms, the Chief Inspector was putting form before substance, and acting so unreasonably that his decision should have been set aside; even if his Honour was wrong in law in stating there was no formally approved form.
We do not accept this submission. The Chief Inspector’s reasons state, in respect of each relevant application, that there was “neither a completed application form nor all of the required information requested in an application form”: see [28] above. That statement was not challenged before Higgins CJ. The legislation stipulates for an approved form and requires an applicant to use the approved form. A decision maker who rejects a handwritten application that, although not on the approved form, follows the format of the approved form, and provides the information sought in the approved form, might be said to have acted so unreasonably that the decision should be set aside. But it is apparent from the material in the appeal books that, far from this being the situation, the applicants merely requested the Chief Inspector to prepare the applications. This request required the Chief Inspector to make decisions as to what information should be provided in support of each application, an impossible task.
Legislative requirements for use of a particular form of application should not be seen as mere technicalities. The purpose of an approved form is to ensure that a person seeking a favourable administrative decision supplies all the information that the decision maker is likely to need in order to make that decision. This is conducive to efficiency and to avoidance of delay; for example, because of the need to make further inquiries about the facts.
The problem that arose from Mr Upton’s failure to use the approved forms was clearly identified at the directions hearing on 17 August 2001. In an attempt to resolve the problem, his Honour suggested that the Chief Inspector provide to the applicants the appropriate forms. The Chief Inspector did so. However, the applicants did not deign to use them.. Rather, they delivered to the Chief Inspector 12 bundles of documents, described as “Bundle A” to “Bundle L” and comprising some 400 pages. Those documents contain a mass of information, some of it contradictory. It is the respondents’ case that it was the duty of the Chief Inspector to determine which items in this mass should be accepted as constituting the applicants’ various applications. The proposition is unacceptable. This was not the Chief Inspector’s responsibility. Even if he were minded to assist the applicants framing their applications, the Chief Inspector would have needed precise information as to their proposals.
Again, it is important to recall the nature of the subject statutory discretions. The Chief Inspector was charged with the responsibility for ensuring public safety in respect of dangerous goods, in this case fireworks. Applications to import, and deal with, several tonnes of fireworks are clearly applications to do things that may cause serious danger to the public, if they are not done by a competent person and in accordance with proper standards.
The legislation draws the Chief Inspector’s attention to these issues. In relation to a licence to keep dangerous goods, by s 8(1A) of the DG Act, the Chief Inspector is not to grant the licence unless, having made due inquiry, he or she is satisfied that -
(b)the composition, construction and dimensions of the premises in or on which it is proposed to keep the goods are such as to ensure the safe keeping of the goods in or on those premises and the safety of the public; and
(c)all reasonable precautions have been taken, or are proposed to be taken, to ensure the safe keeping of the goods in or on the premises and the safety of the public.’
In relation to an application for a licence to import, by s 17(2A) of the DG Act, the Chief Inspector is not to grant the licence unless, having made due inquiry, he or she is satisfied -
(b)that the purpose for which it is intended to import the explosive into the Territory is not contrary to the public interest; and
(c)all reasonable precautions have been taken, or are proposed to be taken, to ensure the safety of the goods and of the public during the course of the importation of the goods.
In relation to an application for a licence to sell, by s 21(1A)(b) of the DG Act, the Chief Inspector is not to grant the licence unless, having made due inquiry, he or she is satisfied that -
(b)all reasonable precautions have been taken, or are proposed to be taken, to ensure the safe keeping of the explosives pending sale and the safety of the public.
In making these judgments, which go to public safety, the Chief Inspector requires certain information. Thus the forms request information as to quantities of fireworks. Much argument was expended before us on a dispute about whether the best measure of explosive capability of fireworks is their overall weight or their “Net Explosive Quantity” (“NEQ”). However, this is not a matter for the Court to determine. The forms approved by the Chief Inspector ask for overall weight, not NEQ. That ought to be the end of the matter. It is irrelevant that some people might prefer to have regard to NEQ.
The position in which the Chief Inspector was placed, with regard to these applications is illustrated by the Wylkian application for an import licence. The letter of 26 July 2000 baldly stated that Wylkian intended to import fireworks into the ACT to sell to various persons. The only clue as to quantity was a reference, in an attachment to this letter, to Wylkian intending to import one container of fireworks. The letter of 21 November 2000, said Wylkian requests a licence to import “one container (3000 kg NEQ) of pyrotechnics 1.3G”. The term “1.3G” refers to a particular type of firework. A further letter was sent by the solicitor then acting for Wylkian to the ACT Government Solicitor on 4 May 2001. That letter said that Wylkian required a licence to import up to 6000 kg (1 shipping container) of Class 1.2G explosives (that includes 1.3G, 1.4G and 1.4S).
In the Chief Inspector’s statement of reasons refusing to grant Wylkian’s application for an import licence, he referred to this correspondence. He said, “As all of the above pieces of correspondence have been included in the correspondence of 22 August 2001 it is unclear as to which quantity and class(es) the intended application relates”.
Mr Foster advanced an explanation for the discrepancies between the various documents contained in the relevant bundle. His explanation may be correct. However, the existence of those inconsistent documents highlights the difficulty the Chief Inspector would have faced if he had been required to regard this bundle as constituting a proper application for a licence to import dangerous goods.
In relation to each of these five applications, we are of the opinion that the Chief Inspector properly refused the applications on the basis that the approved forms had not been used. Insofar as the trial judge assumed that no approved form was extant, he was in error. His decision setting aside the determinations of the Chief Inspector in respect of these five applications should itself be set aside.
Wylkian’s application for licence to sell
By an application dated 29 June 2000, which appears to be in accordance with the then approved form, Wylkian Pty Ltd sought a licence to sell explosives. The application form required an applicant to identify the product, class and quantity of explosives to be sold. The submitted form identified fireworks of various classes. However, where the quantity was sought, the form was filled in “N/A”. The application form also sought information as to “premises/place where the explosives will be sold”. This was answered “various locations in ACT”.
By a letter dated 3 July 2000, the Chief Inspector wrote to Wylkian stating that the application could not be processed because, inter alia, “there is no indication of a premises from which the fireworks are intended to be sold” and “there is no indication of the quantities intended to be sold”. The letter went on to explain that this information was necessary in order for the Chief Inspector to be satisfied about issues of public safety. The letter indicated that the application could not be processed, and the application fee was returned.
The only response to this letter was the letter of 26 July 2000 in which Mr Upton requested the Chief Inspector to prepare the applications. The attachment to the letter states that Wylkian requires a licence to sell “one container of fireworks”. However, the letter provided no information as to where sales might take place. In the letter of 21 November 2000 to the Chief Inspector on the Australasian Spectaculars’ letterhead, Mr Upton asserted that Wylkian required an “unrestricted licence” to sell 1.3G fireworks. No quantities or locations were identified. In an attachment to the solicitor’s letter of 4 May 2001, it was asserted that Wylkian required a licence to sell “Class 1.2G explosives (those explosives imported as above)”. This might refer to the previous page of that attachment, which referred to Savannah Associates Ltd seeking an import permit of “up to 6000 kg (1 shipping container) of class 1.2G explosives”. Again, no information was provided as to where sales were intended to take place. All of the above material was contained in the bundle of documents relevant to this application provided on 22 August 2001.
In his reasons of 31 August 2001, the Chief Inspector stated he was of the view that this application was properly rejected as of 3 July 2000.
The application for review seems to have proceeded below on the basis that the decision under review was the decision of the Chief Inspector of 31 August 2001 (reasons at [8]). In that connection it is relevant to note that the form, although provided to the applicant, was not then used. The Chief Inspector, in his reasons of 31 August 2001, referred to this, saying –
Neither a completed application form nor all of the required information requested in an application form accompanied the correspondence of 26 July 2000 or 21 November 2000. Neither a completed approved form, nor all of the required information requested in the form accompany the letter of 4 May 2001 or the information sent to me on 22 August 2001 in response to the Directions of Justice Higgins of 17 August 2001. An approved application form was provided to the applicant’s solicitor on request on 17 August 2001, following that decision.
Insofar as the 31 August 2001 decision was determined on the basis that there was never an application in the approved form, or containing the information required in the approved form, the Chief Inspector was clearly justified in making that decision. Higgins CJ’s decision to set aside the Chief Inspector’s decision involved an error of law, and should itself be set aside.
A further factor taken into account by the Chief Inspector in relation to this decision requires attention. In [5] of his reasons for decision, the Chief Inspector stated -
On 5 June 2001 and again on 26 June 2001, correspondence was sent to Mr Harold Upton, Wylkian Pty Ltd with a requirement to produce records under section 31 of the Dangerous Goods Act 1975 in relation to activities undertaken by the two parties. This included records of sales. At the date of this decision, the records have not been produced. The date that the records were to be provided by has passed in both instances. A show cause letter in relation to the first failure to produce the relevant records was sent on 26 June 2001 and has not been responded to. I am therefore not satisfied that Wylkian Pty Ltd have been keeping the records required by legislation, or that they have an appropriate system to do so.
The Chief Inspector considered that this information was relevant to his consideration of the question whether Wylkian had taken all reasonable precautions to ensure the safe keeping of the explosives pending sale, this being relevant to the further question whether he was satisfied that Wylkian was a fit and proper person to hold a licence to sell.
Higgins CJ was critical of the Chief Inspector, saying at [99] –
I am unable to determine whether any of the “requests” the respondent referred to would, if proved, be a valid request under s 31(1)(k). However, it would be appropriate, if it was to be so contended, that a summary prosecution be instituted and determined. It is not appropriate in these proceedings to make findings of criminal conduct without an appropriate determination by a magistrate.
If his Honour meant it would be erroneous for a regulator to take into account a failure to comply with a regulatory requirement, in the absence of a successful prosecution, for the purposes of determining whether an applicant is a fit and proper person, we respectfully disagree. In Commissioner for Australian Capital Territory Revenue v AlphaonePtyLtd (1994) 49 FCR 576, the Full Court of the Federal Court (Northrop, Miles and French JJ) said at 593 -
On the facts of the case before him he (the decision maker) came to the conclusion, which was entirely open, that Alphaone had committed a blatant breach of the Act. That conclusion and the defiant assertion of the company’s right to trade were both circumstances to which the Commissioner had regard. They were quite capable of supporting a finding adverse to Alphaone on the question whether it was a fit and proper person to hold a licence.
It is perhaps relevant to note that the letter of 5 June 2001 to Mr Upton, requesting the information relating to Wylkian’s sales at a venue in Canberra in May 2001, was not merely “left unanswered”, as the Chief Inspector discreetly put it. In fact the letter was returned to the Chief Inspector with the words “Bugger Off. We are busy in court with your office” inscribed in hand on the letter.
We are not persuaded that the Chief Inspector was in error in taking this matter into account in determining whether Wylkian was properly adhering to safety standards, and was a fit and proper person to hold a licence to sell dangerous goods.
The Harold Upton Licence to sell
The final decision under review is the decision of the Chief Inspector not to grant to Mr Upton, personally, a licence to sell fireworks. This application was made, on the appropriate form, on 18 January 2001. It identified the quantities of fireworks to be sold, including 1000 kg of “shopgoods fireworks”, from premises identified by unit and street address in Fyshwick. In what appears to be Mr Upton’s hand, the appropriate fee was stated to be $68.
In his reasons for decision of 31 August 2001, the Chief Inspector stated –
‘A licence to sell explosives including shopgoods fireworks classified under regulation 65L attracted an application fee of $5125 at the time of the application.’
Mr Upton did not pay this fee. This failure was, itself, a sufficient basis for refusing his application. However, the Chief Inspector went further in his reasons. He asserted that Mr Upton’s application did not contain sufficient information. Presumably, he meant he was unable to be satisfied that Mr Upton was a fit and proper person to hold a licence to sell. If that was what he meant, and this conclusion was reached without reviewable error, there could be no quarrel with it in this Court. However, it would have been erroneous for the Chief Inspector to treat unwitting errors in providing information, or in tendering the appropriate fee, as a sufficient indicator that the relevant person is not a fit and proper person to deal in explosives. The material before us suggests that Mr Upton is an experienced pyrotechnician with technical skill in the safe handling of fireworks.
In his reasons for decision setting aside the Chief Inspector’s decision about Mr Upton’s application, his Honour said at [152]-[153] –
It follows that some of the reasoning of the respondent was erroneous, but the applicant had failed to respond to relevant requests for information or pay the prescribed fee.
If Upton persists in refusing to provide the requested information, then the respondent could refuse to grant his application. However, the refusal expressed is set aside.
It seems to us that this involves an error of law. While the legislation sets no time limit for dealing with applications, the Upton application, and the issues of the appropriate fee and the need for additional information, had been the subject of correspondence between the Chief Inspector and Mr Upton on 21 July 2001. His Honour’s directions of 17 August 2001 applied also to this application. As we have seen, although forms were provided, the response was to provide a bundle of photocopied material. The Chief Inspector had accepted his Honour’s suggestion that he make final decisions within seven days of receipt of the revised applications. On the information before him on 31 August 2001, when he made his final decision concerning Mr Upton’s application, it is clear that Mr Upton had still failed to respond to requests for information and to pay the prescribed fee. The decision to refuse the application was therefore justified, on the basis that the proper fee had not been paid. The decision to set it aside was erroneous.
Orders
At the hearing of the appeal, Mr Foster sought leave to file an additional notice of contention arguing that the Chief Inspector’s decisions were so unreasonable that they should be set aside pursuant to the principle in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. This general assertion was not particularised. It is apparent from these reasons that we are of the view that, where the Chief Inspector required information going to quantities of explosives or conditions of storage, these were reasonable requirements. The late notice of contention should not be permitted.
The appeal should be upheld and the orders of Higgins CJ of 2 May 2003 set aside.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 19 December 2003
Counsel for the appellant: Mr RRS Tracey QC with Mr P Walker
Solicitor for the appellant: ACT Government Solicitor
Counsel for the respondents: Mr L Foster SC with Mr R Thomas
Solicitor for the respondents: Garry Bates & Co
Dates of hearing: 10 and 11 November 2003
Date of judgment: 19 December 2003
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