Aerolineas Argentinas v Federal Airports Corporate [1997] FCA 723 | Case summary

Judgment (18 paragraphs)

[1]

ADMINISTRATIVE LAW - judicial review - ultra vires - whether a determination under s 56 of the Federal Airports Corporation Act was administrative or legislative in character - criteria for distinguishing between legislative and administrative action whether an action at common law for the recovery of monies paid under an administrative act might proceed in the absence of a challenge to the validity of the administrative act - collateral challenge - scope for collateral challenge in Australian jurisprudence - collateral challenge and the basis of the Federal Court's jurisdiction - abuse of process meaning of "jurisdictional error" - factors relevant to whether an application for the review of a decision was made within a reasonable time for the purposes of s 11(4) of the Administrative Decisions (Judicial Review) Act - discretionary considerations affecting the availability of public law remedies - delay Federal Airports Corporation Act 1986 (Cth), ss 5, 7, 8(1), 37, 38, 39, 43, 47, 48, 50, 54A, 54AB, 55, 56, 56(3), (4), (4A), 4B, (5), (6), (6A), (7), (7AA), (7AB), (8), (9), (10), 74, 72, Prices Surveillance Act 1983, s 26 Administrative Decisions (Judicial Review) Act 1977, ss 8, 10(1), 11 Commonwealth Constitution, s 77 Aerolineas Argentinas v Federal Airports Corporate (1993) 32 NSWLR 595, considered Commonwealth v Grunseit (1943) 67 CLR 58, referred to Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, considered Kioa v West (1985) 159 CLR 550, referred to Minister for Primary Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325, referred to O'Reilly v Mackman [1983] 2 AC 237, considered Bell Bros Pty Ltd v Shire of Serpentine‑Jarrahdale (1969) 121 CLR 137, considered and applied Wandsworth London Borough Council v Winder [1985] 1 AC 461, referred to Posner v Collector for Inter‑State Destitute Persons (Victoria) (1946) 74 CLR 461, distinguished Cooper v Wandsworth Board of Works (1863) 143 ER 414, referred to Director of Public Prosecutions v Head [1959] AC 83, referred to House v R (1936) 55 CLR 499, applied FEDERAL AIRPORTS CORPORATION v AEROLINEAS ARGENTINAS & ORS NG 978 of 1993

THE 1991 DETERMINATION On 27 June 1991 the Corporation, purporting to act under s 56 of the FAC Act, made the following determination (the 1991 determination): "In accordance with Section 56 of the Federal Airports Corporation Act 1986, the Federal Airports Corporation makes the following determination.

This determination shall operate on and from 1 July, 1991 and amends the determination made in March, 1991 which commenced to operate on and from 1 April, 1991.
The determination made in March, 1991 is hereby amended by inserting the following paragraph immediately after paragraph 5 of that determination: "5A In addition to the charges set out in paragraphs 3, 4 and 5 above, a charge per landing at Brisbane (Eagle Farm), Sydney (Kingsford‑Smith), Melbourne (Tullamarine), Adelaide, Perth, Hobart, Coolangatta, Launceston, Darwin, Alice Springs and Townsville airports of $0.60 per 1,000kg of aircraft weight and pro‑rata for part of 1,000kg for all fixed wing aircraft weighing more than 20,000kg." " The effect of the 1991 determination was simply to add, to aeronautical charges already made, a charge per landing at the particular airports mentioned in the new paragraph 5A for fixed wing aircraft weighing more than 20,000kg. The 1991 determination does not itself describe the particular "expenses incurred or to be incurred by the Corporation in relation to the matters in respect of which the charge is payable" (subs 56(10)) but, as the evidence before Beazley J made clear, it was designed to recover the cost of providing security services at airports operated by the Corporation. The proposal that a charge should be introduced to recover that cost had been under discussion between the Corporation, the government and the airlines for some years preceding the determination. The airlines strongly opposed the proposition that they should be, as they regarded it, singled out among users of the airports, for whose benefit security services were provided, to meet the cost of those services. The airlines' objections, however, did not prevail and the 1991 determination was made. The airlines continued to protest and further substantial correspondence between the airlines and the government followed the making of the 1991 determination; but between 1 July 1991 and 31 May 1993 the airlines paid the new charge (the payments amounted to $24,931,290.64); the payments were not made under protest. Nor, until August 1993, did the airlines suggest that the new charge was illegal or invalid. On 26 August 1993, however, they commenced the present proceedings. THE RECOVERY PROCEEDINGS The proceedings were commenced by statement of claim filed in the Administrative Law Division of the Supreme Court of New South Wales. By it the airlines claimed a declaration that the 1991 determination was invalid, a further declaration that no amounts are or were ever payable to the Corporation by the airlines pursuant to the 1991 determination and an order that the Corporation repay to the airlines the sum of $24,931,290.64. The statement of claim alleges the making of the 1991 determination and its purported effect, demands by the Corporation for payment by the airlines of charges alleged to be payable under the 1991 determination and payment, between 1 July 1991 and 31 May 1993, of the sums demanded. It is then said that the charges purportedly levied under the 1991 determination amounted to taxation and that the 1991 determination was not authorised by s 56 of the FAC Act and is invalid. The airlines then allege that the security services, the costs of which were sought to be recovered under the 1991 determination, were not provided to the airlines or at their direction or request; alternatively, the airlines claim that the security services were provided to (among others) the airlines but not at their direction or request, that the airlines were given no choice about whether the security services were to be provided and that the charges levied under the 1991 determination had no discernible relationship with the value of the security services provided to the airlines. It is then alleged that the charges by way of recovery of the cost of the security services are discriminatory in that of the numerous users of Australian airports only certain aircraft operators are obliged to pay the charges; that the charges are levied at the same rate for all specified landings at the specified airports, but security is provided at different standards for two different categories of airports among those for landings at which the charges are made; and there are then a series of factual allegations about the relationship between the charges, the stated criteria of liability to pay them and the circumstances in which those criteria may be met which, it is said, lead to the conclusion that the charges are fixed at an amount which exceeds the amount that is reasonably related to the expenses incurred or to be incurred by the Corporation in relation to the matters in respect of which the charges are payable. Ireland J transferred the proceeding to this Court under s 6(1) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (NSW): his Honour did so because he concluded that the matter for determination in the proceedings was a matter arising under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) in which the Supreme Court would not, apart from the Cross‑Vesting legislation, have jurisdiction and was therefore a "special Federal matter" as defined in subs 3(1) of the Cross‑Vesting Act. His Honour's decision is reported: Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595. It is unnecessary to refer in detail to the reasons given by Ireland J, beyond observing that they traverse much of the ground subsequently covered by Beazley J and over which, in turn, we have had to travel. It should be observed, however, that before Ireland J the airlines undertook to amend the statement of claim by omitting the claims for declarations: accordingly, the only final order now sought in the proceedings is an order for repayment of the amount paid by the airlines by way of the charges which they seek to impugn. Ireland J delivered his judgment on 19 November 1993. On 24 December 1993 the airlines filed in this Court a notice of motion in the transferred proceedings by which they sought an extension of time to apply for an order of review under s 11 of the ADJR Act in respect of the June 1991 determination. A draft application for an order of review accompanied the notice of motion. The draft application sets out in some detail the grounds on which the airlines challenge the determination. By the application the airlines would seek an order setting aside para 2 of the determination, or alternatively an order referring the matter to the Corporation for further consideration, and an order for repayment of the sums paid by the airlines by way of the charges. HEARING BEFORE BEAZLEY J Before Beazley J were both the question for determination as a preliminary issue and the motion for an extension of time to apply for an order of review. As to the former, her Honour held that the 1991 determination was administrative, rather than legislative in character; being a decision of an administrative character made under an enactment (and not a decision within any excepted category) it was a decision to which the ADJR Act applied. On that footing her Honour considered, under the heading "collateral challenge", whether an action for recovery of charges imposed and paid under the 1991 determination might proceed in the absence of administrative law proceedings directly challenging the 1991 determination. Her Honour, following a detailed examination of the authorities, held that collateral challenge remained available in Australia for "jurisdictional error". The orders made by her Honour on 13 March 1996 both settled the question for separate determination and answered it. The question as settled by the order was as follows: "May the applicants maintain these proceedings, as comprised by the Statement of Claim, and obtain the relief sought in the Statement of Claim, without either first, or simultaneously, challenging in proceedings constituted under the Administrative Decisions (Judicial Review) Act, the validity of the Determination made in June 1991 by the Respondent." Her Honour ordered that that question be answered "Yes". It is important to note, however, the following passage in her Honour's judgment, reflecting her conclusion that only "jurisdictional error" could found a collateral challenge, so that grounds not amounting to jurisdictional error, on which a decision might be reviewed for example under the ADJR Act, would not permit a collateral challenge in the absence of an order avoiding the decision. Her Honour said (at 122): "Neither party addressed the limits to collateral challenge in the case of it being found to be permissible. Nor did counsel analyse the claims made by the applicant in the statement of claim from the point of view of jurisdictional error. Clearly, some at least of the allegations raised in the statement of claim amount to jurisdictional error. However as neither party argued this aspect of the matter I consider that I should hear submissions from counsel as to how they wish to proceed." On the motion for an extension of time, Beazley J held that since the decision to make the 1991 determination was not notified in writing, the case was one where no time was prescribed for the making of an application for review. Subsection 11(4) of the ADJR Act therefore applied, so that the Court might refuse to entertain an application for an order of review if it were of the opinion that the application was not made within a reasonable time after the decision was made. In forming its opinion, the Court was required by s 11(5) to take into account the time when the airlines became aware of the making of the decision: and the material before her Honour established that they were aware of it at least in July 1991 when the charges were first levied. Her Honour did not consider "that the application was not made within a reasonable time after the decision was made". The substance of her reasoning appears in the following passage (at 127, 128): "The applicants commenced the recovery proceedings two years into a six‑year limitation period. That time could not be considered unreasonable in respect of those proceedings. The question of whether they were entitled to take those proceedings without having challenged the determination in administrative law proceedings, although determined against them, was not free of legal difficulty. Indeed, there is no authority directly on the point in Australia and there are inconsistencies in the English decisions in this area. The matter is a substantial one, involving important questions of law and large sums of money. However, the amount in question has to be viewed relatively from the respondent's point of view. It is not such a substantial portion of the respondent's overall budget that the proceedings ought not now be allowed to be brought. Further, it is important to keep in mind the statement of Mason CJ in [Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 66, 67] to which I have referred above. It is a serious matter for a government authority to retain a tax or charge which has been wrongly or invalidly extracted. There may of course be considerations whereby an authority is entitled to retain such moneys. These are also referred to by Mason CJ in Royal Insurance. I am of the opinion that a government agency ought not to be protected from review of a decision in respect of such a serious matter notwithstanding the delay in this case. This is particularly so when it is borne in mind that the limitation period for the substantive recovery proceedings is six years. In all the circumstances, I would not exercise my discretion under s 11(4)." Her Honour accordingly, by her orders of 13 March 1996, granted leave to the applicants to amend the statement of claim so as to incorporate the draft application for an order of review, and her Honour made the following declaration: "4. Declare that: (a) there was no period prescribed for the making of the application as amended pursuant to Order 3; and (b) the Court is not prepared to refuse to entertain the Statement of Claim as so amended pursuant to s 11(4) of the Administrative Decisions (Judicial Review) Act 1977." Beazley J also made orders for costs in favour of the airlines. PROCEEDINGS BEFORE THE FULL COURT The Corporation sought leave to appeal from her Honour's orders by which she answered the separate question, gave leave to amend the statement of claim, made the declaration which I have quoted and ordered that the Corporation pay the airlines' costs. The airlines indicated that if the Court were to grant leave to appeal in relation to the separate question, the airlines would wish to lodge a notice of contention for the purpose of challenging Beazley J's conclusion that the making of the 1991 determination was an administrative, rather than a legislative, act. The Court directed that the parties make their submissions on the footing that leave to appeal was granted. Accordingly, we heard full argument as to the matters on which the Corporation seeks leave to appeal and on the matter which would be covered by the airlines' notice of contention. It is convenient to consider the substance of the matters argued before returning to the question of leave, and to consider those matters in the order in which Beazley J dealt with them. IS THE 1991 DETERMINATION LEGISLATIVE OR ADMINISTRATIVE IN CHARACTER? The principle for which the airlines contend is substantially that stated in de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th Ed 1995 at 1006: "A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice." The learned editors however continue: "Since the general shades off into the particular, to discriminate between the legislative and the administrative by reference to these criteria may be a peculiarly difficult task, and it is not surprising that the opinions of judges as to the proper characterisation of a statutory function is at variance." Similarly, the pithy statement of Latham CJ in Commonwealth v Grunseit (1943) 67 CLR 58 at 82: "The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases." is preceded by the acknowledgment that it is "not always easy to draw this distinction". Senior counsel for the airlines relied on two propositions stated by Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 635. The first proposition, paraphrased, is that a norm, though not of general application, may nevertheless qualify as a law, so that "it is difficult to see how a sufficient distinction between legislative and administrative acts is that between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases". The second proposition is: "... that to take [a] step which has the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty, is to act legislatively." Applying those principles, the submission proceeded, the 1991 determination, if valid, was of general application: it created enforceable obligations binding on all persons whose activities brought them within its terms. Additionally, the June 1991 determination (if valid), just as much as the determination in question in Blewett, changed the content of the law, both by the general imposition of charges not otherwise payable but also, because of its interaction with subs 56(8) of the FAC Act, by imposing a penalty on those who failed to pay the charges imposed by the determination. Senior counsel relied also on the requirement under the FAC Act that the determination be published and the provision for ministerial (though not parliamentary) disallowance: but he submitted that matters such as publicity and provision for disallowance are, as he put it, the epiphenomenon, not of the essence of the distinction between legislative and administrative action. Senior counsel drew our attention to the provision in para 72(1)(d) of the FAC Act for the imposing of charges (other than aeronautical charges) by means of by-law, to the further possibility that charges may be imposed by regulations made under s 74 and to regulations which had been made under that provision in terms substantially similar to those of the 1991 determination: the point sought to be made was that it would be strange if the imposition of charges by one mechanism was to be regarded as administrative action, reviewable under the ADJR Act, whereas their imposition of either of the other means was legislative, not susceptible of that review. If there is anything that the authorities make plain ‑ and Blewett is no exception ‑ it is that general tests will frequently provide no clear answer. It is, after all, not difficult to point to authority which supports the proposition that a decision which imposes obligations and is of general operation may nevertheless be administrative or executive: thus, Mason J, said in Kioa v West (1985) 159 CLR 550 at 584: "But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly." Deane J, at 632, refers to the same distinction between those administrative decisions which affect the rights of a person in an individual capacity and those which affect a person as a member of the general public or of a class of the general public. See also the judgment of Jacobs J in Salemi v MacKellar (No. 2) (1977) 137 CLR 396 at 452, quoted by Mason J in Kioa. There is no escape, in my view, from the need to examine closely the particular provisions and the particular circumstances. In arriving at his conclusion, in Blewett (at 638), that the Minister made a decision of a legislative rather an administrative character, Gummow J regarded it as important that the decision took effect by substituting a new table of benefits for the table set out in a schedule to the Health Insurance Act 1973. It was also perhaps of significance that there (as is not the case here) the Minister's determination was subject to parliamentary disallowance. His Honour said this (at 635): "The Schedules to the Act plainly are parts of that statute (the Interpretation Act, s 13) and upon the coming into effect of a determination made under s 4A(8) of the Act (as was purportedly the case here) the result is that the old table in Sch 1A ceases to have effect and the new table has effect as if it were set out in Sch 1A in place of the old table. Medicare benefits will thenceforth be calculated by reference to the fees set out in the new table (s 9) and the quantum of the entitlement to payment [of] Medicare benefits will be modified accordingly: ss 10, 20, 20A. The result is the same as if the Schedule had been changed by an amending statute (see Air Caledonie International v Commonwealth (1988) 82 ALR 385 at 392 [(1988) 165 CLR 462]), but subject to the procedures for parliamentary disallowance of the determination, as provided for in s 4BC(1) of the Act." It is significant, in my view, that the Corporation carries on a business undertaking, albeit a government enterprise, the conduct of which is in significant respects subject to ministerial direction. Among other things, it is expected to earn a reasonable return on its assets, to pay reasonable dividends to the Commonwealth and to perform its functions in accordance with sound commercial practice (subs 7(2) paras (g), (h) and (j)). It is to have a corporate plan (s 37) which is to include financial targets and "performance indicators" (ss 38, 39). It has a capital (ss 43, 44) and may borrow either from the Commonwealth (s 47) or from others (s 48). It may give security (s 50) and may enter into hedging contracts in relation to its loan liabilities (s 54AB). It may invest (s 54A) in government securities, on deposit with a bank or "in any other manner that is consistent with sound commercial practice". It is contemplated that it may have subsidiaries (ss 10, 55). In short, although a government undertaking, it is clearly also intended to be a commercial one. It is in that context, in my view, that s 56 must be seen. An aeronautical charge fixed under that section is a charge for or in respect of the use by an aircraft of a Federal airport (that is, generally, one the site of which is vested in the Corporation: s 28) or services or facilities provided by the Corporation; the charge is not to exceed an amount reasonably related to the expenses incurred by the Corporation in relation to the matters in respect of which the charge is payable. In other words, the charges are, essentially, to be fees for services and are to bear a reasonable relationship to the cost to the Corporation of providing those services. Certainly the Corporation is not left to rely on a contract: the charges which it fixes are recoverable under the statute and the statute fixes a penalty (by way of a substantial interest charge) where charges remain unpaid after 28 days. But that cannot determine the answer to the question whether a determination fixing a charge is a legislative or administrative act. Once it is accepted ‑ as I have already indicated I think it must be ‑ that the fixing, in the exercise of a power conferred by statute, of a charge payable by all those who choose to use the facilities or services in respect of which the charges imposed may, in appropriate circumstances, be regarded as an administrative act, then in my view it is clear on which side of the line the 1991 determination falls. It is a determination made by the Corporation in the course and for the purpose of its commercial operation: that is, in the execution or administration of the FAC Act. The fact that charges fixed under s 56 are subject to scrutiny under the Prices Surveillance Act (a matter which Beazley J took into account and which was the subject of some discussion before us) is, in my view, significant only in that it reinforces the view which I have expressed as to the character of those charges and thus of a determination by which they are fixed or varied. The fact that other charges may be fixed by by‑laws under s 72 or regulations made under s 74 is, in my view, of little significance. Indeed, it may be thought to underline the essentially commercial and administrative character of charges fixed under s 56. It is worth noting also that, by contrast with determinations under s 56, by‑laws are required to be published in the Gazette and are subject to parliamentary disallowance (subss 72(4) and (5)) as, of course, are regulations under s 48 of the Acts Interpretation Act 1901. It should not, however, be forgotten that "The capacity of by‑laws, like regulations, orders and rules, to assume either a legislative or an administrative character, is well recognised": Minister for Primary Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325 at 331. For those reasons Beazley J was right, in my view, to conclude that the 1991 determination was administrative in character and thus amenable to review under the ADJR Act. "COLLATERAL CHALLENGE" In large part, the argument for the Corporation proceeded from a consideration of the basis of the Court's jurisdiction and of the way in which the proceeding has come before the Court. Under s 77 of the Constitution the jurisdiction of the Court is defined by reference to "matters": a "matter" being "a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy" (Fencott v Muller (1983) 152 CLR 570 at 603). Section 8 of the ADJR Act gives the Court jurisdiction to hear and determine applications made under that Act. Accordingly, the airlines could have made an application in this Court under the ADJR Act and, relying on the Court's accrued jurisdiction, made in the proceedings a claim, based on the common law, for repayment of the landing charges. But for the Cross-Vesting legislation, however, the Court lacked jurisdiction in a proceeding in which the only "matter" for determination was the controversy arising from the airlines' common law claim. The proceeding is before this Court, the argument proceeds, solely because Ireland J identified a matter for determination in it as a special federal matter (a matter arising under the ADJR Act) and accordingly transferred it to this Court. Thus, the matter is before the Court only by virtue of the combined operation of, and the relationship between, the ADJR Act and the Cross-Vesting legislation. Thus, s 11 of the ADJR Act must be seen as the "gateway" to obtaining common law relief. To allow the proceeding to continue independently of the ADJR Act is to disregard the jurisdictional basis on which it is before the Court, and thus erroneous. On one view of the matter (which appears to have been the view taken by Ireland J) there is a curious disharmony between the ADJR Act and the Cross-Vesting legislation. Section 8 of the ADJR Act confers jurisdiction in the following terms: "8. The Court has jurisdiction to hear and determine applications made to the Court under this Act." On the other hand, para (d) of the definition of "special federal matter" in the Cross-Vesting legislation speaks of "a matter arising under the Administrative Decisions (Judicial Review) Act 1977". No doubt there may be matters, properly described as arising under the ADJR Act, in proceedings other than those commenced by an application under that Act; and it might have been the case that the Court would have had, in respect of such a matter, no jurisdiction other than that given to it by the Cross-Vesting legislation. However, s 39B (1A) of the Judiciary Act 1903 now provides that the original jurisdiction of the Court includes jurisdiction in any matter "arising under any laws made by the Parliament" so that, if the disharmony was significant, it is so no longer. It may also be mentioned, in passing, that another result of s 39B (1A) may well be that, because this proceeding may be said to arise under the FAC Act (itself a law made by the Parliament), the Court has in any case jurisdiction independently of the Cross-Vesting legislation. In any event, the "gateway" argument was not, except in the most general sense, supported by reference to authority and in my view it should not be accepted. The proceeding was transferred to the Court because Ireland J saw in it a special federal matter; but the proceeding is now, as it was before his Honour, a common law claim for money paid under what is said to be an invalid determination. The Court in my view must deal with the proceeding as it stands, in exactly the same way as if, in its present form, it had been commenced in this Court. A related argument put by counsel for the Corporation was that to allow the common law proceeding to be determined without first dealing with the question of validity, in appropriate review proceedings, was to fail to recognise the "primacy" of the ADJR Act in circumstances where the validity of administrative action is called into question. The principal difficulty with that argument, however, is that the ADJR Act itself lends it no support. It contains no provision which would, in circumstances such as the present, make pursuit of a common law claim, which can be made good only if an administrative decision is shown to be invalid, conditional upon the claimant first establishing that invalidity in proceedings commenced by an application under the Act. Moreover, s 10 (1) of the ADJR Act provides that a right to seek review under the Act is in addition to, and not in derogation of, any other rights to seek a "review" - defined to include: "A review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order." Of course, s 10 does not include among the "review" proceedings which are preserved a proceeding of a kind now before us, where the only relief sought is an order, based on common law principles, for the payment of money. The section does indicate, however, in my view that the ADJR Act was not intended to have the "primacy" for which the Corporation contends. The argument about primacy merged into another submission, to the effect that whereas a common law claim, the elements of the claim being established, was a matter of right, public law remedies, whether under the ADJR Act, by way of prerogative order or analogous relief or by way of injunction or declaration, were discretionary. Whereas for the common law claim in this case there was a limitation period of six years, s 11 of the ADJR Act contemplates that proceedings under that Act will be commenced within a much shorter period and a particular aspect of the discretionary nature of other public law relief was that considerable weight was given to delay in commencing proceedings. Particularly, a factor taken into account in exercising a discretion to grant or withhold relief against administrative action was the public interest in efficient public administration: and that it was unlikely to be served by a challenge to administrative action taken several years previously. Particularly, the ADJR Act reflected (no doubt in a more sophisticated and beneficial way than the discretionary character of general law relief) a balancing of the public interest in effective administration against the interests of those affected by administrative decisions to ensure that they are made in accordance with the requirements of the law. Thus, a person having standing (accorded on a reasonably generous basis: s 3(4)) may, by following a relatively straightforward procedure (s 11(1)), apply for review of administrative decisions (s 5) or of conduct related to the making of administrative decisions (s 6) on any of a number of broadly stated grounds; and a person entitled to seek review of a decision may generally (s 13) obtain a statement of findings of fact and of the reasons for the decision. On the other hand, an application must be made within reasonably strict time constraints (s 11(1) and (3)), relief under the ADJR Act is discretionary (s 16) and there is provision for intervention by the Attorney-General (s 17). To permit an applicant who sought, on a common law basis, repayment of charges imposed by a decision purportedly made in exercise of a statutory power without first requiring the lawfulness of the decision to be tested in review proceedings was, it was said, to upset the balance. In essence, it was put that we should attribute to the enactment of the ADJR Act an effect similar to that given to RSC Order 53 by the House of Lords in O'Reilly v Mackman [1983] 2 AC 237: in that case, after referring to procedural difficulties faced by applicants for prerogative orders, Lord Diplock said, at 285: "The position of applicants for judicial review has been drastically ameliorated by the new Order 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in many cases, made applications for prerogative orders an inadequate remedy if justice was to be done. This it was that justified the courts in not treating as an abuse of their powers resort to an alternative procedure by way of action for a declaration or injunction ..., despite the fact that this procedure had the effect of depriving the defendants of the protection to statutory tribunals and public authorities for which for public policy reasons Order 53 provided. Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities. My Lords, I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons. Whether there should be other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case to case basis ..." Lord Diplock's reference to the question of validity of an administrative decision arising "as a collateral issue" in a claim for infringement of a private right has led to considerable uncertainty; see particularly Roy v Kensington & Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624, esp at 653, 654 per Lord Lowry; see also Carl Emery "Collateral Attack - Attacking Ultra Vires Action Indirectly in Courts and Tribunals" (1993) 56 MLR 643. In any event, there is an important difference between the ADJR Act and Order 53: whereas, the former, in s 10 explicitly preserves other rights of review, the latter does not. Accordingly, whereas Lord Diplock was able to say that, as a general rule, it would be an abuse of process to seek review by way of an action for a declaration, rather than under Order 53, such an argument could not succeed here. That being so, to the extent that before the ADJR Act was enacted it was possible, without seeking review of, or relief against, an administrative decision by way of prerogative order, injunction or declaration, to pursue in ordinary curial proceedings, a common law claim of which a necessary element was the invalidity of the decision, I cannot see why that should no longer be permissible. No express provision of the ADJR Act forbids it, and, in the face of s 10, I do not think that the ADJR Act can be said to forbid it by implication. The question is, then, would it have been possible for the airlines, before the ADJR Act took effect, to maintain the present proceedings? For, if so, it remains possible for them to do so now. In my view it was and remains possible, within limits which it may not be possible to describe with precision, to maintain proceedings of the present kind. Indeed, it may be said at the outset that it seems repugnant to common sense to assert that, whereas the airlines might maintain a proceeding in which a declaration was sought that the 1991 determination was ultra vires and (should the declaration be made) repayment of the landing charges, they may not simply claim repayment of the landing charges, one of the elements of the claim being an assertion that the 1991 determination is ultra vires. The argument put to us was that there was no such repugnancy, because the introduction of the claim for a declaration made a substantial difference: it introduced discretionary considerations which would otherwise be absent. But, leaving aside "gateway" considerations applicable to a proceeding under the ADJR Act, it is not easy to see what the discretionary considerations are which would make the suggested difference. The matter may be tested adequately, I think, by reference to delay, the discretionary consideration which counsel for the Corporation stressed in argument. Of course, if delay is accompanied by circumstances which, for example, give rise to an estoppel, then it is not easy to see any reason why the estoppel would not be as good a defence to a claim for a money judgment as it would be to a claim for a declaration. But why should mere delay in pursuing rights, provided that a proceeding is commenced within the applicable limitation period, preclude relief? The argument necessarily assumes that it might be possible that an airline which now, for the first time, seeks to have its aircraft land at one of the affected airports and on which the charges are now for the first time sought to be imposed, could (assuming that the 1991 determination is indeed ultra vires) commence proceedings for a declaration that the 1991 determination is invalid. If that declaration were made, could not the airlines then successfully prosecute the proceeding which they now claim to continue? To say that they could not is, it seems to me, substantially to deny the authority of Bell Bros Pty Ltd v Shire of Serpentine‑Jarrahdale (1969) 121 CLR 137. The circumstances of that case are stated by Kitto J at 144, as follows: "On 4th November 1966 this Court, in litigation to which the plaintiff was not a party, held that although by‑law 1 forbidding any excavating without the defendant's licence was valid, by‑law 7 was invalid, and that consequently the respondent had no authority to charge fees for licences under the by‑laws: Marsh v Shire of Serpentine‑Jarrahdale [(1966) 120 CLR 572]. Thereupon the applicant [sc plaintiff] demanded the return of the moneys it had paid as fees under by‑law 7. Being met with a refusal, it sued the respondent for moneys had and received ... ." The plaintiff in Bell Bros commenced proceedings as soon as it became aware of the decision in Marsh; whether the plaintiff had prior knowledge over a significant period of the possibility of the claim made in Marsh does not appear; but there is no suggestion that it was relevant to ask whether the plaintiff might be disentitled to relief owing to any discretionary considerations. Nor, for that matter, are discretionary considerations mentioned in the judgment of Barwick CJ (with whom the other members of the Court agreed) in Marsh: his Honour considered whether the by‑law was invalid, decided it was and concluded that a declaration should be made under it and an injunction granted to restrain the defendant from requiring the plaintiff to pay the fee purportedly imposed. The circumstances of Mason v The State of New South Wales (1959) 102 CLR 108 are similar, though involving legislation declared, in other proceedings, to be invalid because it infringed s 92 of the Constitution. The substantial point of the Serpentine‑Jarrahdale cases, for present purposes, is this: if it were true as a general proposition that a plaintiff might not sue for repayment of moneys paid under an invalid by‑law (or determination) without first obtaining at least a declaration of its invalidity, and particularly so if the reason for that requirement were the need to have regard to discretionary considerations, it could not be right that plaintiff B is excused from negotiating the gateway because plaintiff A has already passed through it. Bell Bros proceeded on the basis that plaintiff B need not pass through it, in circumstances where plaintiff A had done so; but there was no res judicata operating in favour of B. The logic of the Corporation's argument ought to result in B's failure. Certainly it is not a sensible outcome that those who have paid money under an ultra vires determination may recover it in common law proceedings provided that one of them is in a position to obtain, and does obtain, a declaration of its invalidity. Thus, in my view, the Serpentine‑Jarahdale cases are directly relevant to the present question. While otherwise Australian authority directly in point seems to be strangely lacking (though I refer below to instances of defensive collateral challenge), there can be no doubt that Beazley J was right to conclude that the principle of collateral attack, whatever its precise limits might be, is well established in English law, available (within those limits) for both attack and defence. An early example of its use offensively is to be found in Cooper v Wandsworth District Board of Works (1863) 14 CB NS 180; 143 ER 414: there the defendant demolished, purporting to exercise a statutory power, a house built by the plaintiff. The plaintiff successfully sued in trespass: the defendant lacked power to demolish the house because it had not given the plaintiff an opportunity to be heard before making the decision to do so. A well known, and perhaps extreme, example of the defensive use of collateral challenge is Director of Public Prosecutions v Head [1959] AC 83. Senior counsel for the airlines was right, in my view, in submitting that Coco v R (1994) 179 CLR 427 should equally be regarded as a case of defensive collateral challenge; see also Foley v Padley (1984) 154 CLR 349. Despite the inhibitions held in O'Reilly to result from the introduction of Order 53, collateral challenge remains available in England in some circumstances both defensively (Wandsworth London Borough Council v Winder [1985] 1 AC 461) and offensively (Roy); indeed, in Wandworth Robert Goff LJ in the Court of Appeal (whose decision was affirmed by the House of Lords) said this, at 480: "For my part, I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against him, could, as such, amount to an abuse of the process of the court. But in any event I am satisfied that it cannot be right that his so proceeding should be held to amount to an abuse of process if the effect would be that his power to enforce his private law rights, or to rely upon them by way of defence, either would or might be adversely affected." His Lordship proceeded to support his view by reference to a series of examples, and to distinguish O'Reilly. Lord Bridge of Harwich, with whom Lord Emslie, Lord Griffiths and Lord Oliver of Aylmerton agreed, quoted that passage with approval in Roy at 629. There are a number of difficult questions in this area of the law. For example, the distinction between jurisdictional and other error of law, though of little account in an application for review under the ADJR Act, remains significant in Australia for other purposes: Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132; Craig v The State of South Australia (1995) 184 CLR 163. Two comments may be made. First, those cases relate to decisions of inferior courts and tribunals, and in Craig the High Court makes it clear that the concept of "jurisdictional error" is likely to be a somewhat wider one in the case of a tribunal than where the decision under consideration is that of a court. Secondly, particularly in the case of the rather different kind of decision of which the 1991 determination is an example, it is perhaps more natural (though it may make little difference of substance) to speak in terms of power rather than jurisdiction: see HWRWade, "Unlawful Administrative Action: Void or Voidable?" (1968) 84 LQR at 95. A second area of difficulty, which may be relevant to the possibility of collateral challenge in particular cases, is that which arises from the use of terms such as "null", "void" and "voidable": see the discussion by Professor Wade in "Unlawful Administrative Action: Void or Voidable?" (1967) 83 LQR 499 and (1968) 84 LQR 95. As to that, I think Aronson and Dyer (Judicial Review of Administrative Action, 1996, at 653) are right when they say: "The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Even a so‑called bare declaration of invalidity amounts to more than just a snapshot of the void; it establishes voidness with an authority which the bureaucracy does not dispute." The learned authors quote (at 651) the judgment of Aickin J in Forbes v Trotting Club (NSW) (1979) 143 CLR 242; see also, in a somewhat different context, Ferris v Plaister (1994) 34 NSWLR 474 at 489, 490 per Kirby P. Although there may be difference of emphasis and degree between the approach of Professor Wade and that of Amnon Rubinstein (Jurisdiction and Illegality, 1965), the fundamental approach taken by Dr Rubinstein is similar to that of Professor Wade: see at 4ff. In any event, there is nothing, in my view, that arises from those difficult and sometimes contentious areas of discourse that throws into doubt the proposition that a claim that a determination by the Corporation is ultra vires ‑ that is, is not a determination of a kind which the Corporation was empowered to make ‑ can found an action for recovery of moneys paid under it, even though the determination is not first, or at the same time, impugned in proceedings in which a declaration is claimed or in other "review" proceedings. Though written with reference to invalidity arising from a breach of natural justice, and in the context of proceedings for judicial review, Professor Wade's concluding paragraph (84 LQR 115) is relevant: "There is no basis for the minority opinion expressed in Ridge v Baldwin [[1964] AC 40] that the court will relieve against a breach of natural justice only where it also considers that there has been a substantial miscarriage of justice. There is serious danger in making the ultra vires principle, or any part of it, discretionary. Administrative inconvenience should not be allowed to distort the law." Another distinction sometimes made in this area of the law received some attention in argument. It is that between "latent" and "patent" invalidity, between a decision which "bears [a] brand of invalidity upon its forehead" (Smith v East Elloe Rural District Council [1956] AC 736 at 769 per Lord Radcliffe) and one which does not. In Posner v Collector for Inter‑State Destitute Persons (Victoria) (1946) 74 CLR 461 at 483, Dixon J said: "When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity. Modern legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attached collaterally or ignored as ineffectual, if the directions of the statute have not been pursued with exactness." What his Honour there said, however, concerned the effect of an order of an inferior court directed to a particular defendant. It was not expressed to apply to, and I think should not be taken as applying to, a decision such as that of the Corporation to make the 1991 determination. If the 1991 determination was made beyond power, I do not think there is anything in authority or principle which will allow the airlines to recover charges paid under it or to defend, on the ground of its invalidity, proceedings to recover further charges (in each case without taking judicial review proceedings), only to the extent that the lack of power appears on the face of the determination. There is no apparent reason why a different result should ensue simply because it is necessary to call evidence, even substantial evidence, of facts in order to establish lack of power (compare Monarch Airlines Limited v Airservices Australia 14 February 1997 FCA Branson J unreported: a judicial review case). Accordingly, I respectfully agree with Beazley J's conclusion on this aspect of the matter as well. Although, however, her Honour concluded that collateral challenge was possible where there was "jurisdictional error" (which I would take as the same thing as lack of power) the question answered favourably to the airlines was whether these proceedings might be maintained "without either first, or simultaneously, challenging in proceedings constituted under the Administrative Decisions (Judicial Review) Act, the validity of the Determination made in June 1991 by the Respondent". Her Honour recorded (at 122) that neither party addressed the limits to collateral challenge or analysed the claims made in the statement of claim "from the point of view of jurisdictional error". Nor was any such analysis undertaken in argument before us. That being so, and because I would not be prepared to proceed, without argument, on the basis that the attack on the 1991 determination, in the statement of claim, is entirely based on ultravires, in my view it is appropriate to set aside orders 1 and 2 made on 13 March 1996 ‑ that is, the orders stating and answering the separate question. There is no need, I think, to formulate a different question: in this respect it is enough, in my view, to remit the proceeding to a single judge for determination in accordance with these reasons. ADJR ACT: EXTENSION OF TIME It is clear, as her Honour found, that this is a case where no period is prescribed for the making of an application for an order of review: ADJR Act para 11(1)(c) and subs 11(3). The relevant provisions are thus subss 11(4) and (5). They provide: "(4) Where: (a) no period is prescribed for the making of applications for orders of review in relation to a particular decision; or (b) no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision; the Court may: (c) in a case to which paragraph (a) applies ‑ refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or (d) in a case to which paragraph (b) applies ‑ refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to; if the Court is of the opinion that the application was not made within a reasonable time after the decision was made. (5) In forming an opinion for the purposes of subsection (4), the Court shall have regard to: (a) the time when the applicant became aware of the making of the decision; and (b) in a case to which paragraph (4)(b) applies ‑ the period or periods prescribed for the making by another person or other persons of an application or applications for an order or orders of review in relation to the decision; and may have regard to such other matters as it considers relevant." Beazley J considered whether, in the circumstances, the Court should refuse to entertain an application for an order of review although, assuming the correctness of her decision about collateral challenge, it might have been unnecessary to do so (at 123). Given, however, the limited attention in argument to the precise extent to which collateral challenge was permissible, and the possibility that an order of review under the ADJR Act may extend the airlines' claims against the Corporation, it is desirable to deal with the ADJR Act question despite my concurrence with Beazley J on the other matters. Her Honour considered, and the parties before us accepted, that the period about which the Court was required to form an opinion under s 11(4) was that beginning in July 1991, when the airlines became aware of the making of the 1991 determination, and August 1993 when this proceeding was commenced. The Corporation put on a number of bases its challenge to Beazley J's conclusion that she was not of the opinion that the application was not made within a reasonable time after the decision was made. The first was that, as it was said, her Honour failed to take into account a relevant consideration which should have been regarded as a "fundamental element": that consideration was the matter referred to in para 11(5)(a), that is the time at which the airlines became aware of the making of the 1991 determination. The Corporation relied on R v Hunt; ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552 at 554, R v Toohey; ex parte Meneleng Station Pty Ltd (1982) 158 CLR 327 at 333, 338 and Blewett at 623. But, with respect, I find it impossible to see that her Honour made the error complained of. It may be accepted that the date on which an applicant became aware of the relevant decision is to be taken into account as a fundamental consideration, but all that the taking account of it does, in most cases at least, is to set the starting point of the period about which the opinion concerning reasonableness is to be formed. There is no doubt that Beazley J took it into account in that way: she held, correctly, that the relevant period began in July 1991. To fix the commencing point is unlikely, in most cases, to offer much guidance, fundamental or otherwise, as to the time thereafter in which it is reasonable to expect an application to be made. The Court's discretion as to that matter is left at large: subs (5) provides that the Court "may have regard to such other matters as it considers relevant". Plainly the discretion is one to which the principles laid down in House v R (1936) 55 CLR 499 apply. Secondly, it was said that her Honour had failed to take adequate account of particular matters to which previous authority gives weight: thus, it was said, her Honour failed to take adequate account of substantial delay in taking legal advice (e.g. Stergis v Boucher (1989) 86 ALR 174 at 180; Worthley v ASC (1994) 13 ACSR 532 at 540) or of the length of time which elapsed between the time when the airlines first took legal advice and the time when proceedings were commenced (Newby v Moodie (1988) 83 ALR 523). Furthermore, it was said, her Honour did not take into account the absence of explanation (other than ignorance of legal rights) for the delays. Similarly, it was said that her Honour appeared to take no account of the fact that up to May 1993 the airlines paid charges under the 1991 determination without protest and gave no indication that there would be a legal challenge. The Corporation then submitted that the primary judge fell into an error of law in so far as her opinion as to the reasonableness of the elapsed time was formed by reference to the six‑year limitation period for the common law claim, rather than the very short period for which para 11(1)(c) provides and the legislative policy underlying the ADJR Act that review proceedings are to be commenced promptly. It was then said that her Honour failed adequately to take into account the potential prejudice to the Corporation resulting from the very large sum claimed (rather than a considerably smaller sum which might have been claimable had proceedings been commenced earlier). Finally, it was submitted that, in taking into account (as it was conceded her Honour was entitled to do) the seriousness of a government seeking to retain charges illegally imposed, her Honour erred, by assuming what had to be established, in taking account of that matter. Applying the principles stated in House v R, I do not think it is possible to conclude that her Honour's judgment should be disturbed. Her Honour took account of the evidence as to what happened between July 1991 and August 1993 (at 123‑125; see also at 127); in my view her Honour adequately took into account the extent of possible prejudice to the Corporation; and I do not think her Honour's observations at 128 should be read as involving any assumption that invalidity had been established. In a context where collateral challenge, to at least a significant extent, is possible and money is sought to be recovered on a common law basis, I can see no error in taking into account, as a relevant consideration, the limitation period applicable to the common law claim. A reference to my discussion, earlier in these reasons, of the Serpentine‑Jarrahdale cases will indicate why that must be so. Beazley J referred to a number of the authorities in which questions arising under s 11 of the ADJR Act have been considered. But a decision as to what is reasonable in a particular case must, of course, be made having regard to its peculiar circumstances. Periods found reasonable in other cases offer useful and authoritative guidance, but do not determine the way in which the discretion is to be exercised in relation to different facts. This was not, after all, a relatively simple case (as are a number of the reported cases in this area) involving a decision made by a governmental authority in relation to particular affairs of a particular individual. It was a decision of general application, the subject of substantial controversy, affecting the interests of a large (and no doubt theoretically unlimited) number of substantial corporations. There are, after all, 38 respondents to this application. The questions involved are by no means easy. It may be expected that what is reasonable in a case such as the present will involve considerations rather different from those with which most of the reported cases have been concerned. CONCLUSION The complexity and importance of the issues require, in my view, that the Corporation have leave to appeal. The airlines offered significant opposition to the grant of leave only in relation to the question arising under s 11 of the ADJR Act. I do not, however, see any justification for treating that issue differently from the other issues in the case. Leave to appeal being granted, the orders made by the primary judge should be varied by omitting orders 1 and 2; the appeal otherwise should be dismissed and the proceeding remitted to a single judge for trial. The Corporation should pay the airlines' costs. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane Associate: Dated: 1 August 1997

Aerolineas Argentinas v Federal Airports Corporate

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