House v_The Ki (I936) SS CLR 49%,-NSorbis v Norbis

ensation Commissior fFI96S5] 2 AC 147, Re Racal :Communications Ltd [L9Sl} AC 374, Smith v East Elloe Rural Dstrict Council [1956] AC 736, Hoffman - -La Roche & Co v 'Secreta: of State for Trade and Indust [1975] AC 295, Barevepsel ¥ Fernando [1967] 2 AC 337 Sees ein v Carr [1980] AC

Blair ¥ Curran (1939} 62 CLR 464, Jackson v Goldsmith

ey jenn 20 SL CLR 446, Mason + State of New South Wales (1959) 102

leeg,. Cam an& Sons Pry Limited + Ramsay (1960) L104 CLR 247,

sett Bros Pty Limited v Shire of Serpentine - Jarrahdale (1969) SECE CLR 137, B w Secretary of State for Environment; Ex parte

WATTMASTER ALCO PTY LIMITED & ORS v THE HONOURABLE JOHN NORMAN BUTTON

NEW SOUTH WALES DISTRICT REGISTRY ) No. G.163 of 1986 ° ) }

CORAM= -s FOX, SHEPPARD anc WILCOX IT DATE= 1} DECLMBER 1986

The orders made by Pincus J on 8 April 1986 be varied by =

(a) deleting from order (1) the words *from its date" and by substituting therefor the words and figures "from 15 August 1984"- and :

(BE omitting order (2) and substituting therefor an order that the applicants" costs of the hearing of 28 February 1986 be paid by the respondent.

The respondent pay ta the appellants their costs of the

Settlement and entry of orders is dealt with in Order 3& of the Pederal Court Rules.

BETWEEN: WATIMASTER ALCO PTY. LIMITED First Appellant

Second Appellant =Ce CES _Pry.LIMTTED Third Appellant OMEGA CES PTY.

T agree with the decision of Sheppard and Wilcox JJ and with their joint reasons, save for one consideration which I

principles of estoppel as affecting a finding made on the judicial review of an administrative decision has not yet been made clear by judicial decision (Compare Spencer-Bower and Turner

The Doctrine of Res Judicata 2nd Ed. (1969) para. 279 and see Wade.' Administrative Law Sth Ed. (1982) 5.246; Cross on Evidence

3rd Aust.Ed. (1966) para. 3.22; R.v. Secretary of State for the Environment; Fr parte Hackney London Borough Council £19831 1 WER

524, E19843 L WOR 592}. This ts not in my view the occasion to attempt. the task. It was not submitted that ft would be open to the respondent in ary' proceedings against it by the appellants, as for the recovery of moneys paid. ta raise again for argument

the question of the validity of the Minister's decision. This must be correct. one tmagines,. whatever the correct juristic

Tt wee submitted additionally that the Court's order would, a= it were, operate in rem. sa that to give it effect as at the date it was made would be fairer for all concerned.

Simply te set. the decision aside, could, om the other hand, leave aitferent: fuparters im different pasitions. The Iogic of the

argument eel not compelling. But im amr event facts to support it have not 'beers 'peoduced in this case. We do not know whether there were others, or the circumstances which affect or affected them, particularly in relation to any rights of recovery they had. No evidence as to their position was adduced before the primary judge, and it was for him toa exercise his discretion.

His Honour did not deal with the matter. and I would not wish to

two preceding pages are a true copy of the Reasons for

IN THE PEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) }

AND= CORAM= FOx, SHEPPARD: and WILCOX JF PLACE: SYDREY DATE: T& DECEMBER 1986

SHEPPARD and WILCOX JJ: The appellants, Wattmaster Alco Pty Limited, Willers & Co (Distributors) Pty Limited, GEC Appliances Pty Limited and Omega Appliances Pty Limited, are each companies engaged in the importation into Australia from Hong Kong of ceiling sweep fans. On 15 August 1984 the respondent, the Minister for Industry and Commerce, made 2 declaration pursuant to $.8(2} of the Customs Tariff (Anti-Dumping) Act 1975 applying that section to sweep fans having metal blades of less than 1400 mm sweep from Hong Kong that are exported to Australia after the date "of publication of the notice and the amount of the export price of which was

The Minister made determinations of "normal value" in

relation to fans cof $00 mm sweep and' [200 mm sweep.

The present proceedings were commenced om 6 December 1984 wher the appellants filed their Application for an Order cf Review. By that Application they contended that the

• Minister's decisiom was invalid. There was, apparently, some delay im the appetiants: being ready for 2 hearing, with the result that it was not until 24 January 1986 that judgment was giver im the matter. The learned trial judge (Pincus J) held that, im making his decision, the Minister had failed to take inte account a relevant consideration, namely the terms of payment normally offered to buyers in Hong Kong. [In consequence of that conclusion the judge determined that the

decision of the Minister to publish the declaration under $.8(2) of the Act was invalid and ought to be set aside. His Honour left open, for further consideration, the question of

Following the decision and order of 24 January 1986

• from which there was no appeal -- - certain affidavit evidence was. filed on behalf of the appellants setting out details of importations made by them during the period between IS August 19e4 and 24 Jamary 1986. These affidavits revealed the dumping duty which had been paid in consequence of the Minister's declaration. It was stated in the affidavits that the various payments cf dumping duty were made "onder protest" but no details of the circumstances of protest were given. It

does not appear what protests, if any, were made at the time

Ore & April 1986, following @ further hearing on 28 Pebruary I986, the trial judge determined that his order "Setting aside the Mfinister's decision should take effect as from 23. January 1986. The appellants appeal against that determination, contending that his Honour erred in failing to order that the decision should be set aside as from the date upor which it was made. The appellants proceed in respect of their several interests, and net jointly. There was only the one application, and the argument about the date upon which

the order was to take effect came before the Court pursuant to

leave reserved, before any formal order was taken out.

Although the notice of appeal says that the appeal is from the whole of his Honour's judgment, the notice relates only to the matter presently under decision, and no other matter has been

The proceedings before Pincus J were brought pursuant ta the Administrative Decisions (Judicial Review) Act 1977. Sectior I6 of that Act gets out the powers of the Court in granting final relief under the Act. In relation to an order of review cf @ decision the relevant provision is sub - s.{1)} which provides:

*"I6.€LF Om am application for an order of review im respect cf @ decision, the Court may, in its discretion, make ali or any of the following orders:

¢a¥ am order quashing or setting aside the @ectsion, or @ part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies:

(5) am order referring the matter to which the decision relates to the nerson who made: the decision for further

parties im respect of any matter to which

• -... . the dectsfonm rekates>

¢@} am order directing any of the parties to ae, or ta refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to da justice between the parties."

The contest before Pincus J related to the application of para.(a) of the sub-section. His Honour took the view that "there is an onus upon a party desiring specification of an earlier or later date to show why that should be done". This view was influenced by the consideration that, in the absence of any specification of date, the order would take effect from the date upon which it was: made. His. Honour was pressed with the argument that, at common law, the decision would be void ab fnitio and that the legislature should not be taken to have intended a departure from the position subsisting under the general law unless it made clear its intention to de sao. However, Pincus J did not regard this as. decisive, he observing that in important respects the Administrative Decisions (Judicial Review) Act goes further, im 2 substantive way, than the general law. 41s Honour alse adverted to "the practical consideration that much uncertainty would be engendered if such decisions were ordinarily overturned retrospectively".

.. - Ent the argument before us. counser. for the appellants accepted: that the decision of the trial judge as to the date from wich the Minister's decision should be set aside was a decision made im the exercise of a judicial discretion as to the date from which the setting aside should take effect, with the result that it may only be set aside if it appears, upon

appeal, that the decision reflects an error of principle or of

laws see House v The King (1936) 55 CLR 499 at pp.504-505,

Norbis v Norbis (1986) 60 ALJR 335 at pp.336-337, 344, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at pp.314, 333-334. Counsel submits, however, that this condition is satisfied, in that the trial judge erred in holding that an onus rested upon a party contending for a date earlier or Later than that upon which the order was made to show 2 "positive reason™ for departing from the position that

With respect ta Pincus J we are of the opinion that there is substance im this criticiam. We think that the trial judge was im error in casting the onus on the applicant to show that the Minister's declaration should be set aside with effect fron: the time it was made. Sectiom 1é6é(I} of the Administrative Decisions (Judicial Review) Act gives to the Court 2 wide discretion ag to the orders appropriate to be made. The words "with effect from the date of the order or from such earlier or later date as the Court specifies", in pare.(a), are, im our opinion, intended to do no more than ta indicate that the Court has @ choice: from all the available

' possibitities= the date of the order, ar earlier date or a Tater date. It: ia true that the effect cf the Lanquage used im that it is unnecessary for the Court to specify 2 date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification 1s necessary in other cases; but specification of a particular

date is, in the latter situation, in any event essential. By

contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that "date of the order" is first mentioned; the probable explanation of that circumstance is

Having in mind what is involved in "setting aside" or "quashing™ - - as to which see Commissioner for Railways v Cavanough (1935) S3 CER 220 at p.225 -- it may, at first sight, seem strange to speak of setting at nought a decision as at @ particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but tm which the nullifying should nevertheless. take effect from some later date. The provision of such am option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio. Of course, the isaue of the prerogative writs is a matter of discretion. They may be issued om terms; and a relevant. consideratiom could be the conduct of the applicant, and@ of the resvondent party, since the making of the order

sought toa be quashed, or set aside. In R v Greater London

Council; Ex parte Blackburn [1976] I WLR 550 the making of an

order of prohibition was postponed to allow the defendant

Council to take certain action. The processes of the Court

when granting relief under the Administrative Decisions

(Judicial Review) Act 1977 are very wide and considerations going to the date as at which an order is to take effect quite

Im our opinion no presumption arises under s.16(1) (a) as te the appropriate date from which a decision should be quashed or set aside. The matter is left entirely to the discretion of the Court. Neither is there any onus upon any party to demonstrate a special reason for selecting a date other than the date of the order. [It is for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best da justice as between

Having regard to our view that the approach of the trial judge reflected am error in the construction of para.(a}, it ig necessary for us to consider for ourselves the @ate from which, in the interests of justice, the present order should operate. |

Counset for the appellants. contend that it is appropriate that the decisior made by the Minister be set aside as from the date upom which it was made. They point out

• • and there is no dispute about the matter - - - that their clients made 2 number of payments, amounting in all to

$115,350, between the date of the declaration under s.8(2) of

the Customs Tariff (Anti-Dumping) Act and the date upon which that declaration was held by Pincus J to be bad in law. The

appellants seek to recover the amount of these payments but, they argue and the contrary is not suggested, recovery is possible only if the declaration is set aside as at the date of the various payments. They say that to set aside the declaration only as at the date of the judgment is to deny to them the fruits of their victory in respect of the payments already made. At commom Law, they submit, the effect of the failure cf 2 statutory decision-maker to take into consideration @ relevant matter is to render the decision void from the outset. The appellants submit that in a case, such as the present, in which no other interests are involved, but recovery of moneys improperly demanded will otherwise be precluded, justice requires that an order under s.16(1)(a) of the Administrative Decisions (Judicial Review) Act set aside the decision as from the date upon which it was made.

& decision made im purportea exercise of a statutory authority wiriclh ia attended by a relevant legal or procedural error - including failure toa take into account @ material consideration -~ ia sometimes described as @ "nullity": see, far example, per tore: Rei¢ im Anisminic Lect v Foreign Compensation Commission [1969] 2 AC 147 at p.I71, per Lord Diplock in Re Racal Communications Ltd [1981] AC 374 at p.383.

But, as Lord Radcliffe pointed out in Smith v East Elloe Rural

District Council [1956] AC 736 at pp.769-770, there is a

question as to the meaning in this context of the word "nullity". Speaking of a compulsory purchase order said to have been made in bad faith, his Lordship said:

ostensible purpose as the most impeccable of orders."

Im some cases the word *yoid™ is used in preference to "nullity"™. But the meaning is the same. In Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at p.sl& Lord Denning MR - - speaking of subordinate Legislation - - used the word "void™ to mean *that the transaction in question is absolutely void - @ nullity incapable of any legal consequences - - not only bad but incurably bad - - - so much so that all the world can ignore it ané that. nothing can be founded om it.™ When the case went to the House of Lords, Lord Diplock at 9.366 emphasised that, nonetheless and consistently with the cases in which the word ; "nakkity™ is used, the: subordinate Legislation will be considered te he vakid unless. and until the contrary has been determined by @ court of competent. jurisdiction im proceedings Draught by @ nerson with the requisite standing.

Im Durayappah v Fernando [1967] 2 AC 337 at p.353-355, the Judicial Committee of the Privy Council

than "nullity", to describe the situation which arises when a statutory power has been irregularly exercised but there is not yet a curial decision to that effect in proceedings

instituted by a competent plaintiff. The case itself provides

a striking illustration of the proposition that, unless and

until there is such a decision, the exercise of power will be

regarded as valid, however clear it may be that it was

BDEfferent Language was used by the Judicial Committee im Calvin - Carr [1980] AC 574 at pp.589-S590. Speaking of "the difficult area of what is void and what is voidable™, the Judicial Committee expressed the view "that @ decision made contrary to natural justice is void, but that, until it is so declared by a competent bedy or court, it may have some effect, or existence, im law. This condition might he better

expressed by saying that the decision is invalid or vitiated".

Im the end the label does not matter. A decision made im purported exercise of @ statutory discretion, but which im affected hy @ relevant irregularity, will normally be treated am valid until successfully impugned by an appropriate plaintiffs but once the decision is held to be bad in Iaw it wiIl be treated asx being invalid - - ~ at least insofar as substantive rights are concerned - - as from the date upon

If the issue between the present parties had been resolved in proceedings of a different type, for example by proceedings for an injunction to restrain the Collector of Customs from demanding payment of the dumping duty, the effect of the finding made by Pincus J would have been that the

Minister's declaration was never valid; so that any previous

payments were made at a time when the declaration was without effect. If, im the present proceedings, the matter had been resolved by the making of a declaration pursuant to s.16(1)(c)

of the Administrative Decisions (Judicial Review) Act, a Like

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 s.16(1)(a) be consistent with that of those made in the grant of other forms sf relief. Of course exceptions may be envisaged, especially ia the area ef Public Service appointments. As the matter is one of @ideretion it is undesirable to attempt to define the exceptions. [t. io enough for present purposes to say that no reasorm appears fin this case why the effect of an order under &.I6(1)(a) should differ from that of a declaration which might have been made under s.16(1)(¢) or an injunction which

. | might have been granted under s.398 of the Judiciary Act 1903.

Counsel for the respondent supports the order made by Pincus J. He points out that the declaration made by the Minister was a general notice applying to all importers. [It is appropriate, he says, that all importers be upon an equal footing: all bound by the declaration up to the date of the

this approach is superficially attractive but it seems to us toa misunderstand the effect of an order under s.l6(I}(a). As a matter of strict law, a finding that a statutory decision is invalid - at least where invalidity stem= from @ procedural defect - - - binds the decision-maker only as against the applicant im the particular proceedings. Ar: tssue estoppel as to the validity of the Minister's

@ecisicn would arise im any subsequent proceeding between the

same parties in which validity was am issue: see Blair v Curran (1930} 62 CER 464 at pp.S3I-53Z. If the subsequent proceeding was based uporm the same cause of action as the proceedings in which the finding had been made the appropriate reference is ta res judicata: see Jackson v Goldsmith (1950) Sk CLR 446 at pe.466-467 and Spencer-Bower and Turner: "Res Judicata™, 2nd ed. p.ISG. But im either case the finding is Binding only as between the original parties. Thus, although the decisiom is "set aside™ under s.16(1)(a) it is get aside only as against the applicant in the particular proceedings in which the order is made. Theoretically, 1t would be open to

the decision-maker to continue to insist upon the validity of

the decision as against all other affected persons; putting those other persons to the trouble of bringing their own proceedings for appropriate relief. Although the doctrine of precedent would be relevant in the subsequent proceedings, in respect of holdings of law, it is possible that different evidence could result in different findings of fact and, thus,

Gf course, considerations of fairness and economy weigh against decision-makers taking that course. They are usually willing to accept any ultimate decision of invalidity im the first. Litigation as definitively establishing the invalidity of the decision as against all affected persons. In the present case there is no evidence as to the position of any other importerr but the point is that there 1s no justification im Iaw for the assumption that the date of the decision im the first proceedings has equal significance for ali affected persons. Upon that approach, the appropriate date in respect cf other parties could only be fixed by the inconvenient, course of forcing: them to institute their own proceedings Or the other hand, the common law position of invalidity from the outset puts all affected persons upon an equak footing, regardiess. of whem ~- or, im cases where invalidity is conceded as against particular persons who have

not instituted proceedings, whether - - - an action is brought.

The appeal should be allowed. The order made by Pincus J should be varied by providing that the decision of the respondent to publish the relevant declaration be set aside as from the date of the declaration, 15 August 1984.

The appellants should have their costs of the hearing before

There appears to have been an assumption on the part of the appellants, at least when the matter wag before Pincus J, that the automatic result of an order setting aside the decision from the date of the declaration would be a legal obligation upon the Minister to procure a refund of the dumping duty paid by the appellants. This assumption was questioned tm this: Court, whereupon counsel for the appellants sought te put the matter beyond doubt by arguing that, in the event of his clients' success, the Court should order the Minister to make @ repayment of the duty. Counsel contended that s.16(1)(d} of the Administrative Decisions (Judicial

Et iw net. necessary for us ta express any view about ther extent of ther powers given by s.IG(I}(d}. [t is not appropriate to take the course suggested. The question of recovery involves issues other than those argued before Pincus T and which are the subject of the appeal to us. We mention two particular matters, each referred to briefly during the

hearing but not argued: the procedural limitations upon the

recovery of disputed duty which are imposed by s.167 of the

Customs Act 1901 and the principles limiting the circumstances

under which moneys paid or received under error of law are

recoverable: see Mason v State of New South Wales (1959) 102

CLR 108, Cam and Sons Pty Limited v Ramsay (1960) 104 CLR 247,

Bell Bros Pty Limited v Shire of Serpentine-Jarrahdale (1969) I2l CLR 137. Neither cof these matters was adverted to at the

trial, with the result that no evidence on them was led. Although the former matter may turn more upon legal argument than evidence, it seems highly Likely that there would be evidence upom the second matter available to the parties which is not before us. The appropriate course is for this Court to vary the order in the manner we have indicated, leaving it to the parties to resolve the matter of repayment either by agreement amongst themselves or by proceedings in an

Although they have not been successful in obtaining ail cf the orders they seek, the appellants have been generally successful im the appeal. The respondent must pay their costs of the appeal.

E certify this and the fifteen (I5) preceding pages ta be a true copy of the Reasons for Judgment of

their Honours Mr Justice Sheppard and Mr Justice Wilcox.

Solicitors for the Appellants: Counsel for the Respondent: