Administrative Law - Judicial review legislation - Tasmania - Powers and discretions of courts - Discretion to antedate orders - Validity of proclamation by Governor-in-Council made subsequent to lodging and prior to hearing of appeal.

Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295; Calvin v Carr [1979] UKPC 1; [1980] AC 574; Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117; Wattmaster v Button [1986] FCA 446; (1986) 13 FCR 253, referred to.

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied.

Nguyen v Minister for Health & Ageing [2002] FCA 1462, followed.

Judicial Review Act 2000 (Tas), ss26, 27.

Administrative Law - Judicial review legislation - Tasmania - Powers and discretions of courts - Declaratory and injunctive relief.

Minister for Immigration v Guo (2000) 144 ALR 567, referred to.

Minister for Immigration and Multicultural Affairs v Thiyagarapah [2000] HCA 9; (2000) 199 CLR 343; Park Oh Ho v Minister of State [1989] HCA 54; (1989) 167 CLR 637, applied.

Judgment Number: [2003] TASSC 102

1 The hearing of this matter was conducted on 4 February and 16, 17 June 2003, when the decision was reserved. On 14 July 2003, counsel for the respondents advised the Court of "a significant fact not placed before [the Court] and germane to ... the disposition of the application". On 22 July, the date of the publication of the reasons for judgment (Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60), the respondents obtained leave to tender a notice in the Gazette dated 2 April 2003 which showed that on 20 March 2003, the Forest Practices Board ("the Board") had recommended to the Governor that the land which is the subject of these proceedings be declared as a private timber reserve. The land was so declared and notice given on 2 April.

2 No reason was provided to the Court to explain how or why the Board made its recommendation while these proceedings were pending.

3 Counsel for the Board contends that further proceedings or orders are futile. The contention may be articulated as follows:

(1) the Forest Practices Tribunal ("the Tribunal") had dismissed the applicants' appeal and no "stay order" permitted by the Judicial Review Act 2000 ("the Act"), s26, was in force;

(2) the Forest Practices Act 1985, s10, requires the Board to make the recommendation upon the grant of an application which, in this case, had occurred on the date of the dismissal of the applicants' appeal;

(3) the Act, s26(1), relevantly provides:

"26 - (1) The making of an application to the Court under section 17 relating to a decision does not -

(b) prevent the taking of action to implement the decision."

(4) the application for review did not prevent the taking of action, namely the making of the recommendation, to implement the decision of the Tribunal;

(5) referral back to the Board for reconsideration would prove futile since the Forest Practices Act, ss13 and 14, restricts the powers of revocation to circumstances involving non-compliance with conditions of use or at the behest of the owner;

(6) the declaration was validly made and remains so.

4 That approach is consistent with the position stated by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736 when he said:

"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

5 The applicants maintain that they are not bereft of remedy, since the Act, despite its abolition of prerogative writs (s42), affords equivalent powers.

6 The findings of law stated in [2003] TASSC 60 favoured, in part, the cause of the applicants. That determination would have required the Tribunal to rehear the appeal according to law.

7 The Act, s27(1)(a), provides:

"27 - (1) On an application for an order of review relating to a decision, the Court may make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from -

(ii) if the Court specifies the day of effect, the day specified by the Court (which may be before or after the day of the making of the order)."

8 The wording of par(a) is similar to that employed in the Administrative Decisions (Judicial Review) Act 1977 (Cth), s16(1)(a), which permits:

"(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies."

9 The issues are ones of the effect of an antedated order and whether the original order or decision is rendered void or its status voidable (Durayappah v Fernando [1967] 2 AC 337). The English position appears to favour the approach that a decision of an inferior tribunal which acts beyond power or incorrectly applies legal principle is rendered a nullity by the decision of the reviewing court (Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295; Calvin v Carr [1979] UKPC 1; [1980] AC 574; Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374). In Anisminic (supra), Lord Reid gave as his opinion at 171:

"I have come without hesitation to the conclusion that in this case we are not prevented from inquiring whether the order of the commission was a nullity.

It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

10 Lord Denning in Hoffman-La Roche (supra) stated at 319 that the use of the word "void" meant that:

"... the transaction in question is absolutely void - a nullity incapable of any legal consequences - not only bad but incurably bad - so much so that all the world can ignore it and that nothing can be founded on it."

11 The High Court has preferred to use the concept of "jurisdictional error" in preference to one based on distinctions between the terms "voidable", "invalid" and the like (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117). In that case, the court determined that:

"A decision that involves 'jurisdictional error' is a decision that lacks legal foundation, and is properly regarded, in law, as no decision at all." (Nguyen v Minister for Health & Ageing [2002] FCA 1462, par 12.)

Bhardwaj followed the earlier decision of Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 where in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ, the court stated at 177 that in the case of an administrative tribunal:

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction."

12 The Federal Court has considered the operation and effect of the Administrative Decisions (Judicial Review) Act, s16. In Wattmaster v Button [1986] FCA 446; (1986) 13 FCR 253, Sheppard and Wilcox JJ, having considered the English decisions dealing with the terms "void" and "voidable", stated, at 258:

"In the end the label does not matter. A decision made in purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid - at least insofar as substantive rights are concerned - as from the date upon which it was made.

Desirably, procedural circumstances ought not to affect substantive rights. In cases where an applicant is concerned only with the future the point does not matter. But, where it does, it seems generally appropriate that the substantive effect of orders under s16(1)(a) be consistent with that of those made in the grant of other forms of relief. Of course exceptions may be envisaged, especially in the area of Public Service appointments. As the matter is one of discretion it is undesirable to attempt to define the exceptions. It is enough for present purposes to say that no reason appears in this case why the effect of an order under s16(1)(a) should differ from that of a declaration which might have been made under s16(1)(c) or an injunction which might have been granted under s39B of the Judiciary Act 1903."

13 In Nguyen v Minister for Health & Ageing (supra) Weinberg J had cause to consider how the discretion to antedate an impugned order ought be exercised. He said, at par8:

"Section 16(1)(a) expressly empowers this Court to set an operative date for an order quashing or setting aside a decision. In Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 it was held that there was no presumption either for, or against, the date being set under par (a) as at the time the impugned decision was made, or the time judgment was given. However, as Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) observe at 508:

... Having said that ... the criteria considered relevant for setting the date seemed skewed in favour of what was taken to be the common law approach, namely, that invalidity operates from the date of the impugned decision. (emphasis added)

It is clear from the language of s 16(1)(a) that the Court has a wide discretion to select the date from which a decision is to be quashed or set aside. In BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665 Carr J noted at 695 that the section confers 'a considerable degree of flexibility on the court when it comes to framing orders'. His Honour also observed at 695 that the date from which a particular decision should be quashed should be 'that which will best do justice as between the parties and any other affected persons': see also Wattmaster (supra) at 257-258 and the cases referred to therein."

"In my opinion, the question to be determined involves a balancing of the factors in favour of, and against, setting aside the Minister's decision retrospectively. As noted earlier, the discretion which s 16(1)(a) confers upon the Court is a wide one. Among the factors which tell most strongly in favour of retrospective nullification is that the Minister's decision involved not merely an error of law (which would still render it reviewable under the ADJR Act) but what would classically be regarded, under the general law, as jurisdictional error."

14 The Act, s27(1)(a), affords power to antedate the order. The proclamation does not render the exercise futile. The proclamation was made following the recommendation made by the Board. The decision of the Tribunal was, effectively, that of the Board, and if that decision is quashed as and from the date of its making, the recommendation and its consequence has no foundation and the proclamation has no legal effect. The respondents contended that the effect of the Act, s26, is to afford independent power rendering the making of the recommendation valid. That is, in part, correct and would provide a defence to any claim of impropriety. But the terms of s26(1)(b) relate to the implementation of "the decision" which, in this case, means the decision of the Board made through the Tribunal. Since that decision has been set aside by the orders here, any implementation is of no effect. A factor in any exercise of discretion is whether the making of a declaration attaches to a right (Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528). Here the applicants, as adjoining landowners, had a right to object to the intended use of the neighbouring land. They had a right to have their objection, already limited by statute, determined according to law. They had a further right afforded by the Act for the review of the decision of the Tribunal. Those proceedings ought not be rendered futile. Had the adjoining land been cleared in accordance with its proclaimed status, it might be impossible to afford them a right of rehearing. Even where the remedy sought cannot undo the harm caused, the declaratory remedy nevertheless survives. Even when declaratory relief is insufficient to alter events completed, it might still be warranted. As Brennan J observed in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 106 ALR 11 at 22:

"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' Forster v Jododex Aust. Pty. Ltd [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J. at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions(27). See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The person seeking relief must have 'a real interest'(28) Forster (1972) 127 CLR, per Gibbs J at p 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd (1921) 2 AC 438, per Lord Dunedin at p 448. and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen' University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, per Gibbs J at p 10. or if 'the Court's declaration will produce no foreseeable consequences for the parties' Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, per Mason J at p 188; see also per Aickin J at p 189; 18 ALR 55 at pp 69, 71 respectively.

The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under s2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done."

15 The exercise is not futile. The quashing of the decision of the Tribunal with effect from 31 October 2002 is permitted by Parliament.

16 The Act, s27(1)(b), permits:

"(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions (including the setting of time limits for the further consideration, and for preparatory steps in the further consideration) as the Court determines."

17 Given the findings made in [2003] TASSC 60, it is appropriate to make an order referring the matter to the Tribunal to determine the matter according to law. Counsel are invited to consider and make submissions as to how the rehearing might best be conducted.

18 The Act, s27(1)(c,) provides for a declaratory order. In this case the applicants seek an order declaring the proclamation made on 2 April 2003 to be void. The remedy is identical to that previously afforded by prerogative writ (Minister for Immigration and Multicultural Affairs v Thiyagarapah [2000] HCA 9; (2000) 199 CLR 343). The purpose of the power, afforded by Parliament, is as stated by Mason CJ, Deane, Toohey, Gaudron and McHughh JJ in Park Oh Ho v Minister of State [1989] HCA 54; (1989) 167 CLR 637, when they stated, at 644:

"The legislative purpose to be discerned in the conferral by s16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is 'necessary to do justice between the parties' (s16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality.

In particular, the phrase 'any matter to which the decision relates' in s16(1)(c) should be construed as encompassing any matter which is so related to, in the sense of connected with, the impugned decision that it is appropriate that it be dealt with by the grant of declaratory relief in judicial proceedings for the review of the propriety of that decision."

19 The Court is aware that concurrent proceedings (Hayward v Lennon M208/2003) have been instituted against the Minister responsible for the operation of the Forest Practices Act 1985 which seek to challenge the validity of the declaration. A declaratory order will obviate the necessity for a further hearing of the same issue involving the same parties. In Minister for Immigration v Guo (2000) 144 ALR 567, the High Court stated the limits required of declaratory orders in cases where there remains a further or residual discretion with the original decision-maker. Here there is no such consequence. Referral for rehearing does not require the Tribunal to reach a different conclusion. The outcome might still be proclamation. The declaration sought by the applicants does no more than state that absent a lawful recommendation, the legislation does not permit proclamation.

20 The final order sought by the applicants is injunctive in nature. It is temporary in nature and is made in accordance with the combined powers afforded by the Act, ss26(2) and 27(1)(d). The order sought does no more than preserve the existing position.

1 The decision of the Tribunal be quashed with effect from 31 October 2002.

2 The matter be referred to the Tribunal for rehearing in accordance with law.

3 A declaration that the recommendation of the Forest Practices Board to the Governor-in-Council that the land comprised in Certificate of Title, Vol l48816 Folio 1 and Certificate of Title, Vol 130248 Folio 2 is void.

4 Until further order, the Forest Practices Board refrain from certifying a forest practices plan in respect of the land the subject of the Private Timber Reserve 1372.

21 Counsel will be afforded the opportunity of considering and making submissions in relation to order 2.