Dixon, C.B. v The Attorney-General & The Minister for Veterans Affairs v. [1987] FCA 454

Administrative Decisions (Judicial Review) Act 1977 - 5s.3(1) (definition of "decision to which this Act applies")

Hawker Pacific Pty. Ltd. v. Freeland (1983) 52 A.L.R. 185

THE ATTORNEY-GENERAL and THE MINISTER FOR VETERANS' AFFAIRS

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) No. VG137 of 1987 GENERAL DIVISION )

Hearing of objections to the competency of applications

for orders of review under the Administrative Decisions (Judicial Review) Act 1977.

There is, and at material times was, pending in the

Supreme Court of New South Wales an action in which the applicant in this proceeding sues the Commonwealth of Australia for damages in respect of personal injuries alleged to have been sustained by him in 1965 and to have been caused by negligence on the part of the Commonwealth and of servants and agents of the Commonwealth. The injuries are also alleged to have been caused by acts of trespass to the applicant's person; and it is alleged that breaches of the applicant's contract of employment by the

Commonwealth as a member of the Australian Military Forces

resulted in those injuries and in the consequent damage. The action had been commenced in the High Court of Australia and was by that Court remitted, pursuant to 5.44(1) of the Judiciary Act 1903, to the Supreme Court of New South Wales on 3 September 1984. On 6 May 1987 a defence in the action was delivered to the applicant's solicitor in the action. Paragraphs 3 and 4 of that

"3. In further answer to the whole of the Statement of Claim the defendant says that if, which is not admitted, the plaintiff was injured in the circumstances alleged in the Statement of Claim, the plaintiff's action has been brought after the expiration of six years after the date on which the cause of action arose and pursuant to Section 79 of the Judiciary Act 1903 (Commonwealth), the said action is not maintainable by Section 14(1)(b) of the Limitation Act 1969, (New South Wales) and the alleged right is extinguished hy

Section 63(1) of the said Limitation Act, 1969, (New South Wales).

4. Further or alternatively the defendant says that if, which is not admitted, the plaintiff was injured in the circumstances alleged in the Statement of Claim, the plaintiff's action has been brought after the expiration of three years after the cause of action accrued, and pursuant to Sections 44 and 79 of the Judiciary Act (Commonweaith) the Said action is and was barred by Section 5(6) of the Limitation of Actions Act 1958 (Victoria)."

Application was lodged on 2 June 1987 for an order of review in respect of the decision, alleged to have been made by the first respondent, or alternatively by the second respondent, or by a delegate of one of them, that the defences alleged in those two Paragraphs of the defence should be pleaded in answer to the

Pursuant to 0.54 R.4 the respondents gave notice of their objection to the competency of the application, on the grounds that the decision in respect of which the applicant seeks an order of review is neither "a decision of an administrative. character" nor "a decision .... made .... under an enactment", and

therefore not a decision to which the Administrative Decisions

The originating application specified four other decisions in respect of which an order of review 1s sought in this proceeding, and to each of those four applications objection is taken to competency on the same two grounds. The first 1s a decision alleged to have been made by one or other of the respondents, or by a delegate of one of them, that there be Pleaded in answer to the applicant's action the following

Paragraph of the defence delivered on or about 13 February, 1985:

"3. %QIn further answer to the whole of the Statement of Claim, the Defendant says that

injured in the circumstances alleged in the Statement of Claim that by virtue of Section

64 of the Judiciary Act 1903-1976 (Commonwealth), the Limitation Act, 1969 (N.S.W.) applies and the alleged cause of

before this action and 1s barred by Section 14(1)(b) of the latter Act."

The second is a decision made by the second respondent, alleged to have been communicated by a letter dated 29 May 1985, from a private secretary of the second respondent to the applicant's

solicitor, that the second respondent would not withdraw the plea

I have quoted from the defence delivered in February 1985, but would refer the solicitor's request for withdrawal to the first respondent. The third is a decision made by the first respondent that the Commonwealth not accede to the request. That decision was communicated to the applicant's solicitor by a letter dated 22. August 1985. The fourth is a decision made by one of the respondents, or by a delegate of one of them, that there be pleaded in answer to the applicant's action the following Paragraph of an amended defence delivered on or about 18 November

Statement of Claim the Defendant says that if, which is not admitted, the Plaintiff was injured in the circumstances alleged in the Statement of Claim, the Plaintiff's action has been brought after the expiration of six years after the date on which the cause of action arose and the said action is barred by Section 14(1)(b) of the Limitation Act 1969, and the

alleged right of the Plaintiff is extinguished by Section 63(1) of the said Act."

It was by way of further amendment that the pleas first quoted

were included in the defence delivered on 6 May 1987.

It was the submission of Mr. Maxwell of counsel for the respondents that a decision to plead a limitation defence on behalf of the Commonwealth is not a decision of an administrative character. The decision to invoke or discard the protection of a law, applicable to body politic, natural person and body corporate alike, in resisting the curial enforcement of liabilities to which all three are subject under the law does not at all savour,

according to the submission, of administration, conceived as the

Management, by officers of the executive government or of other public authorities, of public affairs. The conduct of litigation

such as 1s here in question, and the making of the decisions which

Parties to such litigation are called upon to make, have a

character sui generis, it was submitted, and those decisions could

not be correctly said to be "of an administrative character".

Among the classes of decisions specified in Schedule 2

to the Administrative Decisions (Judicial Review) Act 1977 ("the

Review Act") as decisions to which 5.13 of that Act does not apply

"(f£) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of

pecuniary penalties arising from contraventions of enactments, and, in particular -

(ii) decisions in connection with the appointment of investigators or

inspectors for the purposes of such investigations;

(iii) decisions in connection with the issue of search warrants, Writs of Assistance or Customs Warrants under enactments; and

(iv) decisions under enactments requiring the production of documents, the giving of

information or the summoning of persons as witnesses;"

Concerning Schedule 2 (and Schedule 1, which specifies classes of

decisions excepted from the application of the Review Act) Bowen

C.J3. and Lockhart J. observed, in Australian National University

"Counsel for the appellant relied on Sch 2 to the Judicial Review Act as giving some indication that decisions made in exercise of contractual rights may also be decisions made 'under an enactment' for the purposes of that

Act. Reliance was placed on Evans v. Freimann, supra, where Fox J said (at 434 (ALR); 331(ALD)): 'Schedules 1 and 2 to the

Act are a helpful guide to the intended scope of the Act, because they provide a basis for inferences. Particularly is this so with regard to Sch 2 which relates to decisions which are exempt from the operation of one section of the Act (s 13), which gives a right to aggrieved persons to obtain information and reasons from the person or body which made the decision under attack.'

The primary judge in the present case said (40 ALR at 716): 'Schedule 2 of the Act hy excluding certain decisions from the

scope and operation which the draftsman thought the section might have.'

We agree with these statements, but in our opinion the Schedules must be viewed with some

caution in considering whether they provide a reliable guide to the scope and operation of the Judicial Review Act. Some of the

decisions enumerated in the Schedules may have been included simply for more abundant caution by the draftsman especially in view of the very general terms in which the definitions of the expression 'decision to which this Act applies' and the word 'enactment' are cast (5s

It would seem that the draftsman thought it likely that at least some "decisions in connection with the .... conduct of proceedings in a civil court" might be held to he decisions of an administrative character. It is perhaps not a safe inference that

he thought that that character would be ascribed to all decisions

in connection with the conduct of all such proceedings. It 15s perhaps easier to conceive as part of administration the conduct of litigation concerning the enforcement of public laws, such as those relating to taxation and social security, and to regard decisions made in connection with the conduct of such litigation as administrative, than to regard the conduct of litigation relating to delictual liability, to which the Commonwealth and its authorities and its citizens are alike subject, as involving decisions of an administrative character. It would not be in accordance with normal usage for aman sued for negligently causing damage by the driving of a motor car to refer to his giving of instructions in connection with the conduct of the case as making administrative decisions, or decisions of an administrative character. But what may not be apt in reference to an activity undertaken by a natural person may correctly describe the same activity when it is part of the conduct of government. Ellicott J. said in Burns v. Australian National University (1982) 40 A.L.R. 707 at 713 : "The word 'administrative' carries with it the notion of 'managing', 'executing' or ''carrying into effect'." The affairs of a body politic include its involvement in litigation, including the unintended involvement in litigation concerning aberration (as alleged by its adversary) from the proper conduct of its affairs. The conduct of the litigation is, I think, rightly conceived as the managing of its affairs. The exercise of any of those choices which are available to a litigant in the conduct of a legal proceeding is by the making of a decision which is in my opinion rightly to be described as administrative when the litigant is a body politic or a public

authority, unless the decision were of such importance in the

affairs of the litigant, or were reached by such processes or in Such circumstances, as to make it inappropriate to allow the decision that character. Mr. Maxwell did not submit that the decisions here in question transcended the merely administrative for a reason of that kind. Iam of opinion that each of the decisions which are alleged to have been taken to plead a limitation defence or to refuse to withdraw a limitation defence was, if taken as alleged, "a decision of an administrative Character", within the meaning of that expression in the definition of "decision to which this Act applies" which as

The other ground of objection to competency - that none

of the decisions was "a decision .... made .... under an

enactment" - was supported by two principal submissions.

The first submission founds on the distinction which Keely J. drew, in Baker v. Campbell (1982) 44 A.L.R. 431 at 435, between the exercise of a power and the exercise of a right. In that case a member of the Australian Federal Police laid an information before a Justice of the Peace for the grant of a search warrant under s.10 of the Crimes Act 1914. It was submitted that the laying of the information constituted, or evidenced, the making of a decision to exercise the power conferred by that section to apply for the grant of such a warrant. Keely J. quoted an observation by Ellicott J. which had been approved by Bowen C.J. and Lockhart J. in Australian National

University v. Burns (1982) 43 A.L.R. 25 at 31 : "The clear object

of the Act is to confer rights on aggrieved citizens as the result

of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others". Keely J. continued : "I accept Mr. Seaman's submission that the Act is intended to give certain remedies in respect of the exercise of 'powers' which may adversely affect other persons - not the. exercise of 'rights'. In my opinion the first-named respondent in seeking a search warrant was not exercising a power conferred by 5.10 of the Crimes Act and there was not a decision 'under an enactment'". In Mr. Maxwell's submission the decision which a litigant makes to rely, or to eschew reliance, ona limitation defence is to exercise a right, not a power, in the sense

expounded by Keely J. for the purposes of the Review Act.

In Reid v. Nairn (1985) 60 A.L.R. 209 Fisher J. found the source of the authority given to a prosecutor of an indictable offence against the Customs Act 1901 (C'wlth) to consent to summary trial of his information to be either the inherent right of the prosecutor as a party or a South Australian statute. The source was therefore not an "enactment", within the meaning of the Review Act. Fisher J. did not, therefore, have to express a concluded opinion whether the authority conferred on the prosecutor was a power of the kind to which Keely J. had referred or a right, the exercise of which would not amount to the making of a decision within the contemplation of the Review Act. His Honour did not say anything to cast doubt on the correctness of

The submission may be thought to be as pertinent to a

denial that pleading a limitation defence involves the making of

"a decision of an administrative character" as to a denial that it involves the making of "a decision .... under an enactment". The submission may perhaps be stated as a denial that a decision whether or not to exercise a right or privilege which the law confers on every legal person, whether polity, corporation or human being, in a numerous class of persons for the protection of an interest of the members of that class 1s a decision of the kind contemplated by the Review Act, notwithstanding that a Commonwealth enactment is the source of the right or privilege, and notwithstanding that the decision might be of an

I would hesitate to confine the conception indicated by the word "decision" by reference to a distinction between the exercise of a power and the exercise of a right. The exercise by the agents of government and public authorities of rights enjoyed by all legal persons may work great prejudice to others, just as the exercise of governmental powers may do, because the exercise

of those rights is by a polity or an authority of very great power

and resources. The word "power" is used in different senses in

legal discourse. In A.C.T. Health Authority v. Berkeley Cleaning Group Pty. Ltd. (1985) 60 A.L.R. 284 the decision held to be one

to which the Review Act applied was a decision to make a contract authorised by an enactment conferring, to use the language both of that enactment and of the reasons of the Full Court of this Court in description, "power ...... to enter into contracts" on a public authority. Although the word "power" was used, in accordance with established usage, what the enactment conferred was a capacity,

which most natural persons of full age and most bodies corporate

have, to make a contract. Such a "power" 1S more like the "right" to apply for a search warrant than the powers of public authorities to grant and to deny benefits to members of the public. I am not confident that the conceptual distinction

between power and right which Keely J. utilised was present to the

The principal submission in denial of competency was that neither the source of authority to plead a limitation defence nor the source of authority to decide whether to plead such a defence was an "enactment", s0 that none of the decisions of either kind in respect of which an order of review 1s sought is "a decision .... made .... under an enactment". I accept this

The power to conduct on behalf of the Commonwealth legal proceedings to which the Commonwealth is a party is in my opinion an inherent executive power and within what 15 comprehended by the expression, "The executive power of the Commonwealth", in 5.61 of the Constitution. The raising and maintenance of a limitation defence is part of the conduct of legal proceedings by or on behalf of a litigant, as are decisions whether or not to raise, or to maintain, such a defence. It might be said that the Constitution, or the Act of the Parliament at Westminster which established it, is an enactment under which are made such decisions as are here in question. But I cannot accept the submission of Mr. Thomson Q.C., who appeared with Mr. G.P. Thompson for the applicant, that either of those legislative

instruments is within the meaning of the word "enactment" in the

Review Act. That word is defined in 5.3(1) to mean, unless' the

(b) an Ordinance of a Territory other than the Northern Territory;

regulations or by-laws) made under such an Act or under such an Ordinance; or

(d) alaw, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act,

and, for the purposes of paragraph (a), (b) oar (c), includes a part of an enactment;"

Section 38 of the Acts Interpretation Act 1901 provides:

"(1) An Act passed by the Parliament of the Commonwealth may be referred to

by by the word 'Act' alone. (2) An Act passed by the Parliament of

the United Kingdom may be referred to by the term 'Imperial Act.'

It is in my opinion impossible to suppose that the legislature would have intended to comprehend the Constitution by the word

Mr. Thomson submitted that, as in ss. 56 and 64 of the

Judiciary Act 1903 was to be found the source of the liability of the Commonwealth in tort to the applicant and the source of any protection from that liability which the Commonwealth might find in the statutory provisions pleaded by way of limitation defence, each of the decisions here in question was properly to be. described as "a decision .... made .... under" those sections of

If it were assumed that the entire complex of substantive and procedural rights and obligations and liabilities concerning the delictual liability of the Commonwealth - including those invoked by pleading a limitation defence - depends for existence on provisions in Part IX of the Judiciary Act 1903, yet it does not in my opinion follow that a decision to plead such a defence is made "under" those provisions in the sense intended by

the Review Act. The reasoning of the members of the Full Court in

Australian National University v. Burns, supra, although directed

to quite a different kind of decision, establishes the general Proposition that not every administrative decision the authority to make which derives in some way from an enactment is for that reason "made ...... under" that enactment. While no occasion could arise to make a decision whether the Commonwealth will plead a State limitation statute unless 5.64 of the Judiciary Act, or some other Commonwealth enactment, made that State statute applicable in a suit to which the Commonwealth was a party, yet in my opinion the decision is not made in pursuance of 5.64 : the decision is made under the authority conferred on the executive government to manage such a suit for the Commonwealth, an

authority which the executive government has by the common law and

by the declaration contained in s.61 of the Constitution.

Section 71(1) of the Audit Act 1901 authorises the making of regulations for carrying out the provisions of that Act and, in particular, for and in relation to the "care and Management of all public moneys and the guidance of all persons concerned therein". A regulation made under that provision, Regulation 127A of the Finance Regulations, 15 expressed to confer on the Minister of State administering the Department of Finance and on the Secretary to that Department power to give to officers ef the Public Service, or to other persons who are subject to the provisions of the Audit Act 1901, directions for or in relation to the matters in relation to which s.71(1) of that Act authorises the making of regulations. One such a direction, as it was in effect when the first, the second and the third of the impugned

23. A Department shall not take advantage of the relevant Statute of Limitations unless payment would ordinarily have been refused for reasons other than the Statute, or the Commonwealth has been prejudiced by the delay in submitting the claim, e.g. where a part of the expenditure could have been recovered from a third party but the recovery is itself statute-barred. Such claims when being Processed for payment shall be subject to examination, certification and authorisation in the same way as other claims. Where there is doubt as to the application of the Statute of Limitations to a claim, full details should be referred to the Director of Legal Services for advice."

Since 26 March 1986 a different direction has been in effect. It

"23. Where a claim is made against the Commonwealth in circumstances in which the relevant Statute of Limitations may be relied upon (a question upon which, any advice required should be sought from a Director of Legal Services), the following procedures shall apply:

Where the claim is a claim for damages, questions of the Commonwealth's reliance on a statute of limitations (and questions concerning defence of applications for an extension of time within which to bring an action) shall be decided by the Attorney-General's Department.

(a) Where the claim is not a claim for damages the statute shall be relied upon to deny the claim -

(i) in cases where it is considered that the Commonwealth's liability to pay the claim would not have been admitted, even if the claim had been made within

time (but check if sub-paragraph (b) is applicable);

establish the fact or extent of its liability on the claim

has been prejudiced by the passage of time (but check if sub-paragraph (Db) 1s applicable); and

(iii) ain cases where the Commonwealth, if found laible, would have a right to seek a contribution from a third party and that right would, itself, be statute-barred or has otherwise been prejudiced by the passage of time;

The statute may also be relied upon as an interim measure pending a decision whether a claim falls into any of the

In cases falling within categories (a) (i) and (ii), where Commonwealth liability for some item or items only in a claim consisting a number of items would have becn accepted if the claim had

been lodged within time, the acceptable portion of the claim may be allowed and

paid and the statute relied upon in respect of the balance.

(c) Extension by a Court of the Statutory Time Limits

Since provision now exist in the laws of most States and Territories whereby Claimants may obtain from a court an extension of time within which to commence an action to recover an amount claimed, reliance upon ae statute of limitation will not necessarily bar a claim. Accordingly, 1f there are grounds upon which the claim would be resisted other than the grounds provided by the relevant statute of limitation, it would be appropriate to inform the claimant of those grounds. A decision whether to oppose a claimant's application to a court for an extension of the statutory time limit is to be made after

It was submitted on behalf of the applicant, as an alternative to the submission that the impugned decisions had been made under provisions of the Judiciary Act 1903, that the enactments under which the decisions were made were the Audit Act 1901, the Finance Requlations and the directions in effect at the time of each decision respectively. I shall assume, but without deciding, that each of these directions was "an instrument",

within the meaning of that word in s.3(1) of the Review Act, and

therefore within the defined meaning of "enactment". Mr. Thomson submitted strongly that those who made the decisions acted in conscious conformity with the directions, which indicated both the Department in which the decision was to be made and certain rules or principles in accordance with which it was to be made, and that. therefore each decision was "a decis5ion ...... Mad@ ...... under" the direction applicable at the time of decision and "under" the

enactments whence came the power to give the direction.

If, and in so far as a direction may purport to indicate

• and may validily indicate - the Department of State in which the decision whether to rely upon a limitation defence is to be taken, that indication is in my opinion to be understood only as a means of regulating the routine of administration in the interest of due "care and management of all public moneys". The power to make the decision whether to rely on the defence remains, quite unaffected by the exercise of the power conferred by Regulation 127A, in the executive government. The routine arrangements prescribed by the direction might lawfully be overridden in any particular instance, and the decision taken by a higher organ of that government than

may be found within any particular Department of State. The

effect of such a direction may be contrasted with the effect which

I attributed, in Terrule Pty. Ltd. v. Deputy Commissioner of Taxation (Vic.) (1985) 8 A.T.C. 4173; 16 A.T.R. 365, to 5.209 of

the Income Tax Assessment Act 1936, of limiting the freedom of exercise of the inherent common law power of the executive government to bring curial proceedings for the recovery of debts due to the Commonwealth. Section 209 of that Act expressly

confers on the Commissioner of Taxation and on each Deputy

Commissioner authority to exercise that power to bring proceedings for the recovery of a particular class of such debts. As the source of such a power, s.209 can be seen to be also the source of power to decide whether or not to bring such a proceeding in a particular case. The directions, on the other hand, do not purport to confer on any person a power to cause to be pleaded on behalf of the Commonwealth a limitation defence, in my opinion. They merely indicate, for the guidance of officers, the Department within which decisions as to whether such a defence is to he pleaded will in the ordinary course of administration be taken and prescribe principles in accordance with which those decisions will in that ordinary course be taken. Those directions would in my opinion present no impediment to an officer's proposing to his superiors that a particular decision be taken by Ministers of State and that the decision be not in accordance with those

principles, and no impediment to the Ministers' taking that

I think my conclusions that none of the impugned decisions to plead or to maintain a limitation defence is a decision made under any of the enactments suggested by Mr. Thomson are consistent with the conclusion reached by Fox J. in Hawker Pacific Pty. Ltd. v. Freeland (1983) 52 A.L.R. 185 at 189 that a decision to award a contract for purchase by the Commonwealth of an aircraft was not, within the meaning of the Review Act, a decision made under any of the Finance Requlations which regulated the exercise of the power to make the contract. The power, his Honour held, was "an inherent prerogative or governmental power",

notwithstanding that the regulations prescribed conditions

It will be recalled that the decision which I have called - and which in the originating application 1s called - the second decision found expression in a letter dated 29 May 1985 from a private secretary of the second respondent. It 1s described in that application as a decision not to withdraw the Commonwealth's reliance on a limitation defence and also a decision to refer "the matter" to the first respondent for that respondent's decision. In these reasons I have treated all the impugned decisions as decisions either to plead or to maintain

reliance on such a defence. No separate submission was addressed to the decision to refer the matter to the first respondent. No enactment was suggested, nor am I aware of an enactment, under which it might be said that such a decision might have been taken, except the earlier of the directions given under Regulation 127A. If none of the decisions is otherwise a decision to which the Review Act applies, it may be that no useful relief could he obtained in respect of the second decision, considered as a decision to refer the matter to the Attorney-General. I shall hear the parties concerning orders which should be made to give effect to the conclusions I have reached and, if necessary, I

shall hear the parties further concerning the decision

I certify that this and the 19 preceding pages are a true copy