Western Australian Rural Counselling Association Inc v Minister for Agriculture, Fisheries and Forestry

[2008] FCA 986

FEDERAL COURT OF AUSTRALIA

Western Australian Rural Counselling Association Inc v Minister for Agriculture, Fisheries and Forestry [2008] FCA 986

WESTERN AUSTRALIAN RURAL COUNSELLING ASSOCIATION INC v MINISTER FOR AGRICULTURE, FISHERIES AND FORESTRY

WAD 104 OF 2008

SIOPIS J
1 JULY 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 104 OF 2008

BETWEEN:	WESTERN AUSTRALIAN RURAL COUNSELLING ASSOCIATION INC Applicant
AND:	MINISTER FOR AGRICULTURE, FISHERIES AND FORESTRY Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	1 JULY 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant’s notice of motion dated 16 May 2008 is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 104 OF 2008

BETWEEN:	WESTERN AUSTRALIAN RURAL COUNSELLING ASSOCIATION INC Applicant
AND:	MINISTER FOR AGRICULTURE, FISHERIES AND FORESTRY Respondent

JUDGE:	SIOPIS J
DATE:	1 JULY 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is an incorporated association which carries on business providing financial counselling.

2. In 2006 the applicant was the successful applicant for the grant of Commonwealth funds to be the service provider in Western Australia for the Commonwealth's rural financial counselling service program.  The program is operated by the Commonwealth, through the Department of Agriculture, Fisheries and Forestry, for funding the provision of rural financial counselling services.  The program is called the Rural Financial Counselling Services Program (“the Program”).

3. The origins of the Program were described as follows:

   The RFCS Program commenced in 1986 following an increase in financial difficulties in the mid-1980s across the agriculture sector.  Grant funding went to regional or community level organisations to employ rural financial counsellors to provide free and impartial rural financial counselling to primary producers, fishers and small rural businesses suffering financial hardship and with no alternative sources of impartial support.

4. Consequent upon its successful application for funding, the applicant entered into a contract with the Commonwealth.  The contract provided that the applicant would provide the rural financial counselling services under the Program in Western Australia during the term of the contract.  The term expires on 30 June 2008.  The contract also provided that the applicant would use grant funds only for the provision of services under the Program, and that at the expiry of the term the applicant would return to the Commonwealth, on its request, any surplus funds then remaining.

5. In September and October 2007 the Commonwealth called for applications from interested parties for grant funding to provide rural financial counselling services as part of the Program for the period 1 July 2008 to 30 June 2011.  The applicant submitted an application.  There were two other applicants for grant funds from Western Australia.

6. The Commonwealth established a panel for the assessment of the applications.  One of three members of the assessment panel that assessed applications from Western Australia was Mr David Poultney.  He was engaged as an independent adviser.  The applicant was unsuccessful.  The respondent, on the recommendation of the Department of Agriculture, Fisheries and Forestry, decided to provide funding for the provision of rural financial counselling services, to another organisation, namely, the North East Farming Futures Group.  The funding is for the provision of rural financial counselling services to commence with effect from 1 July 2008.

7. The applicant has commenced this proceeding for an injunction and/or for prohibition seeking to preclude the respondent from implementing the decision to provide the funding to the North East Farming Futures Group.

8. The applicant alleges that it was denied natural justice because it was not given an opportunity to make submissions on matters that were material to the respondent’s decision.  Further, the applicant alleges that the respondent's decision is invalid because it is affected by apprehended bias.  The apprehended bias, it is said, arises from the fact that Mr David Poultney is a friend of Mr Wheatcroft, a person who was involved with the North East Farming Futures Group.

9. The applicant now seeks an interlocutory injunction to restrain the implementation of the respondent’s decision to grant funding to the North East Farmers Future Group for the provision of services under the Program for the period 1 July 2008 to 30 June 2011.

10. The principles for the grant of an interlocutory injunction have been restated recently by the High Court in Australian Broadcasting Corporation v O'Neill (2005) 227 CLR 57 at 81‑82, Gummow and Hayne JJ observed:

    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd.  This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:

    The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief...The second inquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

    By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.  That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument.  With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:

    How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.  (Footnotes excluded)

11. I deal firstly with the question of whether there is a prima facie case in the O’Neill sense.

12. The applicant accepted that the decision of the respondent to grant funding to the North East Farmers Futures Group and not to it, was not a decision made under any enactment and that accordingly, the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) have no application.

13. The applicant contended, however, that it is entitled to judicial review remedies under s 39B of the Judiciary Act 1903 (Cth). The applicant relies upon the case of the Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 (Peko‑Wallsend) as Full Court authority for the proposition that the availability of judicial review remedies is not confined to decisions which have been made under a statute.

14. The applicant claims that because it was the “incumbent” the decision of the respondent was a decision which affected its interests and on that basis would be entitled to be accorded natural justice. It is said that its position was analogous to a licence holder whose licence is revoked.  The applicant contended alternatively that it is entitled to natural justice by reason of the respondent having established a process for the assessment of the applications.

15. The applicant contended that as a consequence of being entitled to natural justice in relation to the making of the decision, it was entitled to comment upon the matters which may adversely affect the decision of the respondent and to have a decision made which was not tainted by apprehended bias.

16. In my view, the applicant has not established a prima facie case in the sense referred to by the High Court in O’Neill because it has not established a sufficiently strong probability of success at trial to justify the consequences which would follow from the grant of the interlocutory injunction, namely the prospect that there would be no party with funding to provide services under the Program.

17. In the case of Ex-Christmas Islanders Association Inc vAttorney‑General (2005) 149 FCR 170 (Christmas Islanders) French J dealt with the question of whether there was a legal duty on the Attorney‑General to consider an application for the grant of legal aid monies.  These were monies which had been allocated to a Commonwealth program by the Appropriation Acts.  At 191, French J observed:

    …However, none of these decisions are made pursuant to an identified legal duty to make them.  As already pointed out, the scheme is set up as an administrative exercise.  It is not a statutory scheme nor does it derive from any statute.  There is no legal duty identified which is enforceable by mandamus requiring the Attorney-General either to consider applications or to make a grant pursuant to the criteria set out in the guidelines.

    A similar issue arose in Barnett where the applicant sought mandamus as well as judicial review under the ADJR Act. Heerey J said (at 403):

    A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed:

    In the case before his Honour the program was not established by statute or regulation. It was “a matter entirely within the discretion of the Minister whether to establish the programme or to modify or revoke it”.  His Honour pointed out that the departmental circular in that case did not have the force of law (at 403):

    Ministers cannot make law unless in the exercise of a power conferred by statute.

    None of the preceding should be taken as concluding the question, not argued in this case, whether and to what extent judicial review is available in relation to exercises of the prerogative or executive power under s 61 of the Constitution of the Commonwealth.  In any event, in this case, the exercise of such power in the expenditure of moneys under the Scheme was discretionary and not governed by a public duty amenable to mandamus.

18. In my view, the Christmas Islanders decision applies in this case.  The same considerations as applied in that case, apply to the respondent’s decision to expend monies to procure the provision of services under the Program in this case.  The Peko-Wallsend case is distinguishable because it did not deal with a decision of that kind.  The decision under review in Peko-Wallsend had been made in the exercise of prerogative power.  French J in Christmas Islanders recognised that the position may be different where a decision is made in the exercise of prerogative or executive power under s 61 of the Constitution of the Commonwealth.

19. I now turn to the question of balance of convenience.  The applicant says that the balance of convenience favours it.

20. First, the applicant says that it is currently providing a number of clients with rural financial advice under the Program and unless an interlocutory injunction is granted, these clients would be prejudiced because they will not be able to have continued access to the applicant’s services.  The premise underlying this contention appears to be that if an interlocutory injunction is granted the applicant will be able to continue to use the grant monies for the provision of Program services after the expiry date of the term of the grant contract with the Commonwealth.  In my view, that does not follow.  Even if an injunction is granted, the applicant will still be required to comply with the terms of its contract with the Commonwealth.  That contract precludes the applicant from using grant monies for the provision of rural financial services described in the contract beyond 30 June 2008.  Accordingly, the grant of an injunction will not have the consequence which underlies this submission of the applicant.

21. The applicant contended, however, that I should assume that the Commonwealth will enter into a new contract with the applicant, or otherwise fund the applicant, for the period until the trial of this proceeding.  There is no basis upon which I can make that assumption. 

22. It follows that this consideration does not weigh in favour of the grant of the interlocutory injunction.

23. Secondly, the applicant says that it has entered into a number of financial commitments which extend beyond 30 June 2008.  Thus, the applicant says that if the lease on its premises is terminated early, it will incur a financial penalty.  The same is true in respect of the leases of a number of computers and vehicles that it operates.  The evidence shows that the applicant only has limited funds to meet the obligations which it has incurred, and I infer that it will suffer financial hardship if it does not receive further funding from the Commonwealth.

24. This consideration does not weigh in favour of the grant of an interlocutory injunction.  This is because any financial detriment that may be suffered by the applicant will have been caused by the applicant’s own conduct in entering into the contractual obligations which called for a continuing financial performance beyond 30 June 2008.

25. Further, the grant of an interlocutory injunction will have no impact on this issue.  As previously mentioned, it does not follow from the grant of an interlocutory injunction precluding the respondent from implementing his decision to fund North East Farmers Future Group, that the applicant will be able to use the balance of the funds provided by the Commonwealth under its grant otherwise than in accordance with the contract entered into with the Commonwealth.  As already mentioned, this contract only permits the applicant to use grant funds for the provision of services under the Program up to 30 June 2008.

26. In my view, there is no prima facie case in the O’Neill sense, nor does the balance of convenience favour the grant of the interlocutory injunction.

27. Further there is a discretionary consideration militating against the grant of an interlocutory injunction.  Even if the applicant was to succeed at trial the best that the applicant could achieve would be to have the decision of the respondent set aside and the matter referred back to the respondent to be decided according to law.  Therefore, success at trial would not necessarily result in the applicant’s application for funding being granted.

28. Accordingly, the applicant’s motion for an interlocutory injunction is refused.

29. The applicant also made an application for an order that the respondent provide reasons for the decision. In the absence of a statutory provision, there is no right to be provided with reasons for an administrative decision (Public Service Board (NSW) v Osmond (1986) 159 CLR 656). Further, in my view, there is no special circumstance which would mandate the provisions of reasons. The applicant has obtained discovery of the documents relevant to the decision making process. These documents demonstrate that an assessment was made of the merits and demerits of each of the applicants and a recommendation was made to the respondent which was accepted by the respondent. These documents provide the applicant with sufficient information for it to pursue its claim that there has been a breach of natural justice.

30. I will not order that the respondent provide reasons for his decision.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        1 July 2008

Counsel for the Applicant:	Mr RL Hooker
Solicitor for the Applicant:	Holborn Lenhoff Massey
Counsel for the Respondent:	Mr PJ Ward
Solicitor for the Respondent	Blake Dawson
Date of Hearing:	26 June 2008
Date of Judgment:	1 July 2008