Wide Bay Helicopter Rescue Service Incorporated v Minister for Emergency Services
[1999] QSC 22
•15 February 1999
IN THE SUPREME COURT
OF QUEENSLAND
No. 2855 of 1998
Brisbane
Before Williams J
[Wide Bay Helicopter Rescue Service Incorporated v Minister for Emergency Services]
BETWEEN:
WIDE BAY HELICOPTER RESCUE SERVICE INCORPORATED
Applicant
AND:
MINISTER FOR EMERGENCY SERVICES
Respondent
JUDGMENT - WILLIAMS J
Judgment delivered 15 February 1999
CATCHWORDS: Judicial review - decision challenged not properly identified - particulars not given as directed - necessary parties not before the court - application summarily dismissed.
Counsel:Ms D Skennar for Wide Bay Helicopter Rescue Service Incorporated.
M Plunkett for Minister for Emergency Services.
Solicitors:Baker Johnson for Wide Bay Helicopter Rescue Service Incorporated.
Crown Solicitor for Minister
Hearing Date: 27 January 1999.
IN THE SUPREME COURT
OF QUEENSLAND
No. 2855 of 1998
Brisbane
Before Williams J
[Wide Bay Helicopter Rescue Service Incorporated v Minister for Emergency Services]
BETWEEN:
WIDE BAY HELICOPTER RESCUE SERVICE INCORPORATED
Applicant
AND:
MINISTER FOR EMERGENCY SERVICES
Respondent
JUDGMENT - WILLIAMS J
Judgment delivered 15 February 1999
By Amended Notice of Motion the respondent, the Minister for Emergency Services, seeks an order that the application for a Statutory Order for Review filed on 27 March 1998 be dismissed. In broad terms that order is sought on any one of the following grounds:
(i)the applicant, Wide Bay Helicopter Rescue Service Incorporated, has failed to respond adequately to Requests for Further and Better Particulars delivered pursuant to directions orders of this court;
(ii)the decision sought to be reviewed was not made either under an enactment or non-statutory scheme or program as required by either ss.4(a) or 4(b) of the Judicial Review Act 1991 (the Act);
(iii)the decision sought to be reviewed was made pursuant to an exercise of the Crown’s prerogative power to enter into contractual agreements and was not an administrative decision made under an enactment;
(iv)the applicant has not identified any right, interest or legitimate expectation so as to enliven jurisdiction under the Act;
(v)the application is vexatious, scandalous, and an abuse of the court’s process and ought properly be dismissed pursuant to s.48 of the Act;
(vi)the application discloses no valid ground of review under the Act in that it seeks an impermissible review of the merits of the decision sought to be impugned.
The application was prepared by the President of the applicant association, and it is only in recent times that the applicant has received independent legal advice. The application as filed is in the following terms:
“Application to review the decision of the Minister for Emergency Services that a community provider rescue helicopter be placed at Bundaberg.
The applicant is aggrieved by the decision and conduct because -
(1)That a breach of the rules of natural justice happened in relation to the making of the decision, and,
(2)That the decision was induced or affected by fraud, and,
(3)That there was no evidence or other material to justify the making of the decision, and,
(4)That procedures that are required by law to be observed in relation to the conduct have not been observed, and,
(5)That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made.
The grounds of the application are -
(1)The Minister failed, refused or neglected to meet with the applicant since 19 November 1997 when the first request was sent, and the second request on 28 December 1997, and,
(2)The respondent defamed the applicant in two press releases, and,
(3)The respondent failed to answer a request for Statement of Reasons within the required period under the Act, and
(4)The respondent did not apply the same conditions in basing his decision as he applied to the applicant.
The applicant claims an order -
(1)Quashing or setting aside the decision, or part of the decision, with effect from the day of the making of the order, and
(2)Costs ... ”
It should be specifically noted that the only respondent to the application is the Minister for Emergency Services.
On the hearing of the motion, which was some 10 months after the application was initially filed, counsel then appearing for the applicant said that the ground of fraud was not being pursued; this was the first indication that that ground was no longer being relied on.
The material discloses that there have been some 8 requests for Further and Better Particulars of allegations contained in the original application. There have been 3 orders of judges of this court (16 April 1998, 18 September 1998, and 27 October 1998) directing that the applicant furnish additional particulars. The order of Helman J of 16 April 1998 directed the respondent to deliver a request for Further and Better Particulars by 27 April 1998 which the applicant was to respond to by 15 May 1998. The request was made but there was no proper response. Then on 18 September 1998 Helman J repeated those directions with the respondent being directed to deliver a request by 2 October 1998 which was to be replied to by 16 October 1998. Again there was no proper response. Finally, on 27 October 1998 Mackenzie J directed that the applicant provide Further and Better Particulars to the Crown Solicitor by 17 November 1998. Again the applicant did not comply with that direction. Some of the applicant’s responses indicated more particulars would be given after discovery; the respondent has now provided full discovery but no additional particulars have been forthcoming.
In this case it is important to establish the background to the decision sought to be reviewed, and it is also important to identify with some precision the decision in question.
In 1997, and for some years prior thereto, Sunshine Coast Helicopter Rescue Service Limited trading as Energex Community Rescue (“Energex”) provided an emergency rescue service based at Maroochydore. That service was provided pursuant to a Service Agreement entered into between Energex and the State of Queensland through the Department of Emergency Services dated 12 June 1996. That agreement provided for an annual grant to be paid by the Government conditional upon compliance by Energex with its obligations thereunder; Energex had to satisfy performance standards in order to qualify for payment of the grant.
N I Campbell, who is the President of the applicant, and other residents in the Maryborough-Hervey Bay area, were concerned that the emergency services then available were not meeting the needs of the Hervey Bay-Fraser Island area. In consequence a public meeting was called on 12 March 1995 seeking public reaction and support for a locally based helicopter rescue service. As a result of support for the concept expressed at that meeting Campbell and others flew to Brisbane for meetings with Government officials responsible for co-ordinating rescue services. The applicant was duly incorporated and steps taken to acquire necessary documentation and approvals for it to become a rescue organisation. There was a locally based helicopter and it was used for some medical evacuations from Fraser Island. That helicopter was used for a period in training members of the applicant in rescue work. By late 1997 that helicopter was no longer available to the applicant.
The initial meetings with public servants in early 1995 were for the purpose of obtaining some formal accreditation; that was refused. By 1996 it would appear that the Department of Emergency Services indicated that the services of the applicant which were being informally provided should not be utilised as it was not an accredited organisation.
There was a meeting in 1997 between representatives of the applicant and the then Minister for Emergency Services during which the latter expressed concern that if the applicant was accredited the Government would have to fund it. To enable consideration to be given to funding the applicant was asked to submit a comprehensive business plan. The applicant engaged consultants, Compton International Fundraising Pty Ltd, to prepare the business plan; that was completed in May 1997 and forwarded to a number of local, State, and Federal Government agencies.
At about that time Energex also submitted a proposal to the Queensland Government which involved the extension of its existing service pursuant to the agreement of June 1996 to include a helicopter rescue service in the Wide Bay/Burnett region with the helicopter flying out of Bundaberg. By letter dated 22 September 1997 the Minister for Emergency Services required Energex to submit “a business plan which demonstrates the financial viability of the proposal to extend your service”. The letter set out a number of particulars which should be included in the business plan.
Also in September 1997 the Department wrote to the applicant raising a number of questions about its proposal. The letter said that such information is “required to enable the Department to make a more detailed assessment of the business plan”. The letter concluded by saying: “This request is made to enable officers of the Department of Emergency Services to complete their assessment of the business plan and does not in any way indicate acceptance or approval of your proposal”.
In January 1998, before any decision was made a “Briefing Note” was prepared for the Office of the Premier. It set out the background and the summary was in these terms:
“If the Government decides to establish a helicopter rescue service to improve services in the Wide Bay/Burnett Region, the proposal by Energex Community Rescue has the advantage of less cost to Government and appears financially viable. Energex Community Rescue is also a proven community helicopter provider with extensive experience.
The alternative proposed by WBHRS is more expensive. In addition, the income projections made by WBHRS in their business plan are considered very optimistic and the organisation has no proven experience in establishing and managing a community helicopter service.”
On 7 and 8 January 1998 the then Minister for Emergency Services, the Honourable M Vievers MLA, issued 2 formal Media Releases. The first began with the statement: “Emergency Services Minister, Mick Vievers, said a highly questionable business plan and totally unreasonable behaviour of operators behind the Wide Bay Helicopter Rescue Service made it almost impossible for him to treat their proposal seriously”. The Release went on to say that the Minister was giving “serious consideration” to a helicopter rescue service based in the Wide Bay/Burnett region.
The voluminous material now filed in support of this application contains a number of media cuttings which may well be the foundation of the Minister’s allegation that there was “outrageous and scaremongering and misinformation being spread by the promoters of the WBHRS”. In the circumstances it is not necessary to examine that issue further.
In the later Media Release the Minister said that a decision would be made by Friday 16 January; it was said that the decision will be “in the best interests of all the people of the Wide Bay/Burnett region and those who visit the region”. Again there was some reference to a media campaign being conducted by the applicant.
The fact that the Minister was considering 2 proposals for the extension of the rescue service was confirmed by a letter from the Premier to Campbell dated 13 January 1998.
On or about 16 January 1998 the Government made the decision to vary the agreement with Energex so that it provided for a helicopter rescue service in the Wide Bay/Burnett region based at Bundaberg. In April 1998 the formal Service Agreement was varied accordingly.
Clauses 3.4 and 3.5 of the Service Agreement as varied are in the following terms:
“3.4The Provider agreed that at all times from 1 March 1998, it shall provide the following operations generally within a radius of approximately 1 hours flying time from the Bundaberg airport:
Air medical operation;
Search and Rescue operation;
Counter-Disaster operation;
Assist with Queensland Fire and Rescue Authority operation;
Assist with urgent Police responsibilities.
3.5 The extension of the Provider’s service to Bundaberg is on a trial basis for a period of three (3) years from 1 March 1998 and will be reviewed prior to the end of the trial period.”
Clauses 10.6 to 10.10 of the agreement provided for the payment of a grant with respect to the Bundaberg based operations. The minimum grant was to be $250,000 in a financial year conditional upon Energex meeting the obligations under the agreement.
Given those background facts it is difficult to comprehend the present application. There is no specific decision that “a community provider rescue helicopter service be placed in Bundaberg” separate and apart from the decision to vary the Service Agreement with Energex to extend it to the Wide Bay/Burnett region with a helicopter based at Bundaberg. On its face the application does not challenge the decision to enter into the extended agreement with Energex.
The applicant has not made Energex a party to the application but its Counsel now concedes that Energex is a necessary party, and foreshadowed that if the application was not dismissed steps would be taken to join that organisation. Energex could have applied under s.28 of the Act to be made a party if it had realised that its agreement with the Government was under threat. But there was nothing on the face of the application to suggest that that was so. The hearing before Helman J on 16 April 1998 was in effect the directions hearing pursuant to O.81 r.10 and neither party apparently then saw fit to seek an order that Energex be joined under r.10(2)(g).
An application for a statutory order of review should be made within 28 days of the decision in question being made (s.26 of the Act). Generally the legislation provides a strict time regime for such proceedings; that is understandable given the nature of the decisions being reviewed. Merely joining Energex to the proceeding as presently framed would not assist the applicant. To make the proceedings effective the decision to extend the Energex Agreement in the way provided would have to be challenged. Such an amendment would amount to a review of a decision well outside the time frames provided for by the Act. Energex could well have expended a large amount of money in meeting its obligations under the Agreement in the past 10 months. Amendments should not readily be permitted which could cause undue hardship or have serious commercial consequences to a party which has acted on the faith of a decision by a Minister of the Crown for almost a year. (cf. my decision in Sita Queensland Pty Ltd v Queensland Transport (unreported) No.10350 of 1998, judgment 29 June 1998).
Whilst the court ought not be pedantic when carrying out its function of reviewing decisions in accordance with the provisions of the Act, it is necessary that the applicant define with some particularity and accuracy the decision impugned. That is particularly so where the decision has commercial implications. Other persons may well have rights and obligations which are dependent upon the decision and they can only intervene to protect their interests if the application makes it clear that the decision under challenge is that which affects that other party.
Here, nearly a year after a decision having commercial implications for persons other than the applicant was made, the critical decision has not been properly specified and all affected parties are not before the court.
One of the matters on which the respondent has persistently, but unsuccessfully, sought particulars have related to the reasons why it is said there was a breach of the rules of natural justice in making the impugned decision. The argument for the applicant relies on the grounds set out in the application. But, in my view, it is clearly not sufficient to say that the relevant Minister personally refused to meet with representatives of the applicant. The totality of the material before the court shows that there were a number of meetings between representatives of the applicant and representatives of the respondent, and formal submissions, including the Business Plan were submitted. Clearly something more is needed before the failure to meet as alleged in the application could constitute a breach of natural justice.
Submissions by counsel for the respondent raised the issue of bias based on the contention that the respondent defamed the applicant in two press releases. As already noted the material before the court discloses a press campaign by the applicant to gain public support, and a response from the Minister to the effect that such a campaign was misleading. That, in my view, is not without more particularity a sufficient allegation of either breach of natural justice or bias.
There are also no particulars given of the contention that the respondent did not apply the same conditions to Energex in considering its proposal as he did when considering that of the applicant. I have already noted that for almost a year an allegation of fraud was persisted in, without particularity, and has now been dropped. One can only infer that the allegation was entirely groundless; Order 81 r.2(2) was never complied with.
On the hearing of the motion counsel for the applicant conceded that the decision in question was not one made “under an enactment”. That was an issue which the respondent raised immediately after the application was served, and the fact that it took so long for the applicant to make that concession demonstrates the oppressiveness of it’s conduct.
Counsel for the applicant submitted, however, that the decision in question was one “of an administrative character made ... by, or by an officer or employee of, the State ... under a non statutory scheme or program involving funds that are provided or obtained ... out of amounts appropriated by Parliament ...” (Section 4(b)). That provision is unique to Queensland and is of extremely wide effect. It was inserted into the Act consequent upon the Report on Judicial Review of Administrative Decisions and Actions prepared by the Electoral and Administrative Review Commission in December 1990. It is clear that the provision was intended to broaden considerably the range of decisions subject to the Act.
If this review was related to a decision to make Government funds available to the provider of a rescue service in the Wide Bay/Burnett region then the decision in question may well be within s.4(b), but that could hardly be the case where the only relevant decision was to base a “community provider rescue helicopter ... at Bundaberg”. On its face the current application does not relate to a decision within s.4(a) or (b) of the Act.
This court in exercising its jurisdiction pursuant to the Act applies the general principles which have for centuries governed its procedure. It has been long recognized that the court has power to order a party to give further and better particulars of an allegation made in proceedings before it, and if such particulars are not provided then it has jurisdiction to strike out or dismiss the proceeding in question. So far as the common law is concerned that principle has been well recognised at least since Davey v Bentick (1893) 1 QB 185. Order 81 r.10(1)() recognises the court’s power to order the giving of particulars in a directions order and s.48 of the Act confers a wide power on the court to dismiss summarily the application.
Here there has been a persistent failure by the applicant over some 10 months to provide particulars as requested by the respondent and as directed by the court. Failure to comply with 3 orders of the court directing the provision of particulars is itself a ground for dismissal. That is especially so where the want of particulars relates to allegations of fraud and misconduct by public officials. An application based on such unsubstantiated allegations should not be allowed to stand.
Particularly where a decision relates to the provision of emergency services there is a public interest in having the validity and effectiveness of the decision resolved promptly if it is challenged. Here the time frames specified in the Act have not been adhered to by the applicant. The application has not been diligently prosecuted.
Almost a year after the application was filed the precise decision sought to be impugned has not been properly identified. All parties interested in and affected by an order overturning aspects of the Ministerial decision which the applicant now wants to challenge are not before the court. Review of a decision to base a rescue service in Bundaberg alone would be futile.
Further, the applicant has persisted in making unsubstantiated allegations against Government officials and refused to provide particulars. The dropping of the allegation of fraud at the last minute makes no difference.
A perusal of the material filed on behalf of the applicant suggests that it is really seeking a merits review of the decision; that is not permissible under the Act.
Counsel for the respondent addressed other arguments but there is no point in discussing them given the conclusions reached above.
In all the circumstances, and for the reasons contained herein, the application for a Statutory Order of Review filed 27 March 1998 should be dismissed. The applicant, Wide Bay Helicopter Rescue Service Incorporated, should pay the respondent’s costs of and incidental to the application and notice of motion, including reserved costs, to be taxed.
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