The two classes of cases are not mutually exclusive: they are intersecting classes, but no case which does not fall within the first class is caught by the terms of the Judicial Review Act, s 9. In other words, if the invalidity or impropriety of the act of the decision-maker, as such, is not a necessary element in the claim for relief, s 9 does not operate to exclude the jurisdiction of a State court.
In the present case the validity or propriety of such acts of officers of the Department of Health as are reflected in the November letters are, as such, irrelevant to the substantive issues in the proceedings. The only substantive matter in issue is whether in the circumstances proved in evidence the Commonwealth was liable to make payments to the plaintiff under the Health Insurance Act (Cth), s 33. This issue is to be resolved simply by applying the terms of that Act to the facts as found, and not by any examination of acts of any decision-maker within the Department of Health.
To return to the two intersecting classes of cases referred to above, I would not wish the views I have so far expressed to be understood as implying that any case which falls within the first class (ie where the invalidity or impropriety of the act of the decision-maker is a necessary element in the claim for relief) is necessarily caught by s 9. In my opinion not every such case would be so caught. This follows from the restricted meaning given to the expression 'review' by the definition in s 9(2). A court could not in my opinion properly be said to 'review' a decision 'by way of' one of the three stipulated kinds of remedy (bearing in mind their nature) unless the act of the decision-maker, as such, is the subject of, or directly impugned by, that remedy. It is however unnecessary for the purposes of the present case to deal with this aspect of the operation of the section further."
106 Appliance Holdings Pty Ltd v Lawson and Nomad Industries of Australia Pty Ltd v Commissioner of Taxation were amongst the cases cited in argument. Rosenthal v Phillips was not cited in argument. No cases were cited in the judgment. His Honour's approach to the meaning of "review" certainly does not give it wider scope than did Waddell J and Rogers J, and he also saw significance in a s 9 case in the statutory definition: even if there were review in that the act of the decision-maker was under examination (as to correctness or the validity of the process by which the decision was made), there might not be review for the purposes of s 9. Challenge to the validity or effectiveness of the impugned decision, however, was essential; it was not enough that the court determined a question the subject of the decision.
107 In Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595 the defendant had determined to levy charges on aircraft landing at airports it operated, purportedly pursuant to s 56 of the Federal Airports Corporation Act 1986 (Cth). The plaintiffs contended that the levy was invalid, and claimed repayment of a substantial sum as money had and received. The defendant submitted that the court had no jurisdiction because the claim involved review of a decision contrary to s 9 of the ADJR Act. It was held that the defendant's determination was a decision of an administrative character to which the ADJR Act applied, that the plaintiffs' claim necessarily involved review by way of the relief listed in s 9(2), and so that the court did not have jurisdiction.
108 The defendant argued that, unless and until its determination was quashed or declared invalid, it could not be held that the money paid to it should be repaid as money had and received. The plaintiffs argued that any examination of the defendant's determination would be incidental to its claim, and that although the invalidity of the determination might be a step in the court's reasoning it was not necessary that an order falling within s 9(2) should be made. Ireland J accepted that a formal order to the effect that the defendant's determination should be quashed or was invalid would not be needed, but considered that there would nonetheless be review by way of relief referred to in s 9(2). He said (at 616) -
"To my mind, the effect and essential nature of the proceedings, not only in relation to the relief sought, but also in relation to the very process of the proceedings, will be of relevance in determining whether the jurisdiction of the State court is excluded on the basis that they constitute review 'by way of' one of the proscribed remedies. Further, while a declaration may not in terms be sought by the plaintiffs in the instant case, it should not be ignored that any judgment received in the plaintiffs' favour may well have the effect of an estoppel in relation to any charges under the determination which the Corporation may wish to recover in the future, and therefore act both retrospectively and prospectively as if it were a declaration.
In the final analysis, while in my view the plaintiffs have persuaded me that it would not be necessary to quash the determination, or to make a declaration that the determination by the Corporation is invalid, it appears to me that the plaintiffs have considerably more difficulty in relation to the matters raised by McLelland J in Delmore, in relation to his Honour's observations that it is only 'if the invalidity or impropriety of the act of the decision-maker ... is not a necessary element in the claim for relief' that the jurisdiction of the State court is not excluded. In this respect, I agree with the submissions of the defendant to the effect that the plaintiffs cannot recover their money unless the determination is said to be invalid. In this respect, in my opinion, the relief sought by the plaintiffs, although in its amended form to be expressed as a claim for money had and received, will effectually involve the matters referred to by McLelland J in Delmore . To hold the defendant liable to repay the moneys already received would effectively be to declare the charge invalid, and that the amounts paid by the airlines were not (and, by implication, are not) payable to the defendant. This would amount to a declaration in the same terms as those now to be deleted from the statement of claim."
109 Putting aside whether it was sufficient that the claim "amounted to" relief within s 9(2), his Honour adopted from Delmore Pty Ltd v Commonwealth of Australia the approach of whether it was necessary to hold that there was invalidity or impropriety in the act of the decision-maker, going to the effectiveness of the decision itself.
110 There is not complete uniformity in these cases. I do not think it necessary to attempt a statement of what is involved in reviewing a decision or conduct when s 9 of the ADJR Act is in question. The description earlier adopted of an examination of the correctness of the decision or the conduct of the decision-maker is, with respect, unsatisfactory, in that it must be asked, correctness in what way? Whatever is otherwise involved, examining the correctness of a decision must address its validity or effectiveness, and examining the conduct of the decision-maker must look to the process by which the decision was made as something affecting the validity or effectiveness of the decision. The cases on s 9 do not support, indeed are against, a meaning of "review" extending to any consideration of a decision or the manner in which a decision was made.
111 Other cases illustrate further meanings which can be given to "review". In Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 an employee compulsorily retired pursuant to s 56 of the Telecommunications Act 1975 (Cth) was entitled under the Act to "review" of the decision to retire him. Regulations were made to give effect to this, limiting the review tribunal to making recommendations to the original decision maker. A review tribunal declined to recommend a different decision. The plaintiff applied under ADJR Act in relation to the original decision and the decision of the tribunal. It was held that the tribunal had failed appropriately to review the original decision, inter alia because it had considered only whether it should make a recommendation to the original decision-maker.
112 The judgment of Burchett J contains (at 62-3) a collection of instances of "review", and his Honour held that review called for more than recommendation and for reconsideration by the tribunal -
"The sections, in imperative terms, require that the regulations shall provide for the review of a decision of the Commissioner under each section; they do not provide for review by the Commission, but for review of its decision. An 'appeal from Caesar to Caesar' is the proverbial paradigm of an empty formality offering no real hope. The Act, which was passed in 1975, would be out of step with numerous contemporary provisions if, in requiring a review, it contemplated merely further consideration by the Commission itself upon receipt of 'recommendation and advice' only from an independent tribunal, It is perhaps sufficient to refer to general legislation such as the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977, both of which use the word 'review' in a sense involving the independent exercise of powers directly affecting the decision reviewed. Section 6 of the Ombudsman Act 1976 (Cth) uses 'review' with reference to a court or tribunal, though also by extension in a looser sense, while the Ombudsman's own action, which has no binding effect, though it may lead to a referral 'to the appropriate authority for further consideration' or a 'report' and 'recommendations' (s 15), is not called a review, but an 'investigation'. In respect of the Administrative Appeals Tribunal, there is exceptional provision for a 'review' without binding effect. But this is an exception which confirms the general rule, excluding from it the special case of a decision, concerning immigration, of a kind traditionally the preserve of the responsible Minister (cf Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 at 143). A similar usage is to be found in various pieces of legislation having more restricted areas of operation for example, the provisions of Pt V of the Income Tax Assessment Act 1936 (Cth) in respect of boards of review, the provisions dealt with in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 368; and Harrington v Harrington (1981) 55 ALJR 566 at 567; and most significantly, s 64 of the very Act under consideration, Telecommunications Act 1975, which provides for a 'review' of certain decisions of officers and boards by the Commission itself, with power to alter the results of the original decision.
Neither a further consideration by the Commissioner, for which reg 35 provides, nor a hearing by a tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a 'review'. Together, I think they remain impotent to do so. In the Shorter Oxford English Dictionary the first meaning given of the word 'review' is 'the act of looking over something (again), with a view to correction or improvement', but the meaning in law is also given: 'Revision of a sentence, etc, by some other court or authority'. It is the latter meaning, suggesting an independent tribunal with power to alter the result, which is significant. In Ashfield Municipal Council v Joyce [1978] AC 122 at 134 Lord Wilberforce said, citing Pemsel's case (1891) AC 531:
'It is hardly necessary to add to this the reminder, from Lord Macnaghten, that "in construing Acts of Parliament, it is a general rule … that words must be taken in their legal sense unless a contrary intention appears".' (see also Pearce, Statutory Interpretation in Australia (2nd ed), par 44).
That the Shorter Oxford English Dictionary correctly defines the legal meaning of 'review' is confirmed by the cases: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 citing Phillips v Commonwealth (1964) 110 CLR 347 at 350, where the High Court chose the word 'review' to describe a rehearing which led to the pronouncement anew of the rights of the parties; R v Nat Bell Liquors Limited (1922) 2 AC 128 at 143 where Lord Sumner also chose the same word to express the breadth of the remedy conferred by a power of rehearing in contrast to the limited reach of certiorari; and Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 408 where Lord Diplock said: 'Judicial review … provides the means by which judicial control of administrative action is exercised' (emphasis added). Use of the word in this context is discussed in Woss v Jacobsen (1985) 60 ALR 313."
113 On appeal (Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395) it was held that the fact that the tribunal could do no more than recommend what in its opinion should be done did not mean that there was not a review within the meaning of the Act. A review was contrasted with an appeal, and it was said that in the context of the Act it was not necessary that the Tribunal confirm or set aside the original decision or substitute its own decision, and that there was a review if the matter was looked at afresh by the tribunal (see per Toohey J at 404, Fisher J concurring; per Jackson J at 412).
114 In Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 the Bankruptcy Act 1966 (Cth) provided for review of a Registrar's decision. Could the court could consider evidence of matters occurring after the Registrar's decision? Hill J said (at 509) -