N. MacDonald Pty Ltd v Hamence, Donald William [1984] FCA 11

lations imposing obligations on such employee - Whether decision "made under an enactment" within the meaning of the

Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977, s. 5

Public Service Act 1922, s. 82 Public Service Regulations, r. 32, 125

Hawker Pacific Puy. Ltd. v. Freeland & Ors. (unreported - 16 Lecember 1983)

N. MACDONALD PTY. LIMITED v. DONALD WLLLIAM HANENCE

BETWEEN : N. MACDONALD PTY, LIMITED Applicant AND: DONALD WILLIAM HAMENCE Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 10 February 1983 WHERE MADE: Canberra

) AUSTRALIAN CAPITAL TCRRITORY ) ) No ACT G95 of 1983 DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: N. MACDONALD PTY. LIMITED Applicant AND: DONALD WILLIAM HAMENCE

This is an application by N. MacDonald Pty. Limited ("the applicant") under paragraph 5(1)(a) of the

Administrative Decisions (Judicial Review) Act 1977.

An objection has been taken to the competency of the

The applicant operates the business of a motel known as the Acacia Motor Lodge or Acacia Lodge situate at 65 Ainslie Avenue, Canberra City. The decision in

decision made on 24 October 1983 which had the effect

of removing the name "Acacia Lodge' entitled "Canberra Accommodation". 'That publication is expressed to be "A guide to hotels, motels, guest houses, hostels and caravan parks" and to be "Compiled by the Canberra Tourist Bureau ... Canberra City eee". Tt is

asserted that a breach of the rules of natural justice

occurred in connection with the making of the decision.

The application as filed named McDonald B. Nichols as respondent. At the hearing the applicant sought, and was granted, leave to substitute Donald William Hamence as respondent. Mr. Hamence ("the respondent") is described as the Tourist Commissioner. His responsibilities include directing and controlling the operations of the Canberra Tourist Bureau, promoting the Australian Capital Territory as a tourist destination and providing policy advice

on all aspects of tourism in the Australian Capital Territory.

The Canberra Tourist Bureau is not a body corporate and does not owe its existence to any statute, regulation or ordinance. Nor is there any legislative definition of its powers and duties. It is a section within the Community Relations and Facilities Branch of the Community Services Division of the Department of Territories and Local Government. The Bureau has offices in Canberra, Sydney and Melbourne.

Its Functions are to undertake the promotion of the Australian

Capital Territory as a tourist destination and to provide tourist and visitor services. Its offices are staffed by

One of the Bureau's tourist promotion undertakings is the periodical publication of a list of accommodation facilities in Canberra. The evidence is that such a list has been published at intervals since at least 1967. Editions of the list entitled "Canberra Accommodation" were published on 14 December 1982, 14 Aprii 1983, 11 August 1983 and 2 December 1983. Those editions bore the dates January 1983, April 1983, August 1983 and October 1983 respectively. The publication shows the name, address and telephone and telex numbers for each establishment and gives details of the type of accommodation provided and of the

In 1983 20,000 copies of each edition of "Canberra Accommodation" vere printed. The copies were distributed to the offices of the Bureau for display and for dissemination to the public. The publication is made wilhout charge, cost or expense to the businesses the names of which appear in the list. The information published in the list is obtained by officers of the Bureau soliciting information from the known accommodation businesses operating in the Australian Capital Territory. No accreditation or standards of physical facilities are prescribed for accommodation businesses to be

included in the list. Except where, as in the case of Acacia

Motor Lodge, a decision is made to exclude a particular

business, no such business is omitted from the list.

Mr. Norman MacDonald, a director of the applicant and manager of Acacia Motor Lodge, gave evidence, which was not disputed, that he had conducted random surveys as to the reasons why members of the public sought accommodation at Acacia Motor Lodge. From those surveys he concluded that the use by members of the public of the lists published by the Bureau was the single most important factor in attracting

On 5 or 6 October 1983 Ilr. MacDonald attended a meeting with Mr. Nichols, General Manager of the Bureau, and a Mr. Byfield also of the Bureau. Mr. Nichols informed Mr. MacDonald that the Bureau had received a number of complaints concerning the Acacia Motor Lodge which he summarised as being that Mr. MacDonald was too scrict with some of the guests' children, that Mr. MacDonald had insisted on the cessation of noise at 11.00 p.m. by school student guests and that school student guests had been locked out of their rooms by Mr. MacDonald. Mr. MacDonald agreed with the thrust of the first two types of complaint but denied that school student guests had been Locked out of their rooms. Mr. Nichols also informed Mr. MacDonald thet Ansett Pioneer had informed him that they reccived complaints about Mr. MacDonald's conduct of the Acacia Motor Lodge and had de-

cided not to nake further bookings there. Hr. Nichols

subsequently wrote to lir. A.J. Potter, Manager of Ansett Pioneer, urging him to reconsider his decision not to deal

Evidence was also given by Mr. Nichols, and not disputed, that between 6 and 20 October 1983 he had received further complaints about the Acacia Motor Lodge which led him to believe that the dissatisfaction experienced by patrons was more widespread than he had first thought. He also ascertained from the Manager of the Bureau's offices at Sydney and Melbourne that they had from time to time received

Mr. MacDonald gave evidence, which {1 accept, that at the meeting which took place on 5 or 6 October 1983 he was not told of any proposal to delete the Acacia Motor Lodge

On 20 October 1983 Mr. Nichols sought a decision from the respondent whether the Bureau should cease to publicise, and take bookings for, the Acacia Motor Lodge.

On 24 October 1983 the respondent decided that the Bureau should not recommend the services of tha Acacia Motor Lodge to visitors. The decision is recorded in a note in Mr. Ham- ence's handwriting as follows -

"T have read the attached [ile which does not make pleasant reading!

"T believe the Tourist Bureau has a right and obligation tu the consumer to only use

accommodation houses of a standard acceptable to the visitor generally.

"The complaints lodged against Acacia Motor Lodge are serious and until such time as they can prove that they have improved

their standards of service I believe the Tourist Bureau should not recommend their

The material upon which the respondent made the decision

In accordance with that decision Mr. Nichois took steps to have the name and details of Acacia Motor Lodge deleted from "Canberra Accommodation" and from any future displays and promotions undertaken by the Bureau. The first edition of "Canberra Accommodation" in which the mame Acacia Motor Lodge or Acacia Lodge did not appear was the edition dated October 1983 which, as T have said,

On 23 November 1983 Mr. MacDonald received from the Bureau a letter dated 18 November 1983 signed by Hr.

"In our recent discussion you made clear how high your standards are. However, the Bureau has a responsibility in marketing tourist facilities and services to be confident that all visitors using these Facilities are

"In view of the many comments we have received from groups whe have used your establishment the Bureau is not confident of a sufficiently high Level of satisfaction and therefore will delete Acacia Motor Lodge from Bureau publications

"LE you wish to discuss this matter Further T would be happy to do so at your conventence."

A meeting lasting some 2 hours between Mr. MacDonald and Messrs. Nichols and Lamb of the Bureau took place on 23 or 24 November 1983. It is unnecessary to refer in detail to what was then discussed. For present purposes it is sufficient to note that Mr. Mac Donald's request to see the complaints which Mr. Nichols stated in his opinion warranted the removal from "Canberra Accommodation" of any reference to Acacia Motor Lodge was

refused on the ground that the complaints were confidential.

It is clear on the evidence, and I so Find, that the decision of which the applicant complains was made by the respondent. The evidence also establishes that the

respondent is employed in a temporary capacity under the

provisions of section 82 of the Public Service Act 1922

and is an "omployee" within the meaning of that expression iP

as used in that Act and in the Public Service Regulations made thereunder. He is not an "officer" within the meaning of

A threshold question arises whether the decision made by the respondent on 24 October 1983 is a decision to

which the Administrative Decisions (Judicial Review) Act 1977

applies. It will answer that description if, andonly if,

it is a decision of an administrative character made under an enactment within the meaning of Lhat expression in the

definition of "decision to which this Act applies" in sub- section 3(1) of the Act. The expression "enactment" is

(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act

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

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or

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

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

To sustain the proposition that the decision was a decision under an enactment counsel for the applicant relied on the provisions of regulations 32 and 125 of the Public Service Regulations. Regulation 32 provides - "32, Every officer shall -

(a) during the hours of official business devote himself exclusively and zcal- ously to the discharge of his public duties;

(b) behave at al] times with courtesy to the public, giving prompt attention to all reasonable requirements;

(c) obey promptly all instructions given to him by any officer under whose control or supervision he is placed;

(d) promptly and correctly carry out all duties appertaining to his office, or any other duty he is directed to perform; and

) in due course and at proper times comply with, and give effect to, all enactments, regulations, and authori- tative instructions made or issued [for his guidance in the performance of his duties."

As the respondent is not, as mentioned above, an officer within the meaning of that expression in regulation 32, that regulation can have no direct operation in relation to him. Consequently counsel relied on regulation 125 which provides -

the obLigations -Ehat are imposed by these Regu- lations on an officer."

Counsel For the applicant argued that the making of the decision by the respondent was done in carrying out the obligations which regulation 125 read with regulation 32 casts upon him and, Chere being no other statutory provision conferring upon him power to make the decision in question, the source of the power to do so is to be found in those regulations. It was said that the respondent could not act in a vacuum - there had to be some legislative provision to support his action and that provision was to be found in the

In my opinion the applicant's argument must be rejected. The clear purpose of regulations 32 and 125 is to cast upon an officer in the one case, and an employee in the other, obligetions as to the manner in which he shall carry out the duties which apperrain to his office, in the case of an officer, or which he is required to perform in

the case of both an officer and an cmployee. They are designed

not only to give guidance and direction to an officer

or employee but also, in the case of a failure to comply with the obligations so imposed, to provide a basis for disciplinary proceedings which may be taken wder the

relevant provisions of the Public Service Act 1922. But

in my opinion there is no basis for the assertion that the regulations provide the legislative foundation or are the source of power for the making of decisions of the kind with which this case is concerned. It is not correct, in my view, to describe the decision made by the respondent as having been made under those regulations so as to bring the

decision within the purview of the Administrative Decisions

For the applicant it was said that, if the source of the decision making power is not to be found in regulation 125 read with regulation 32, there being no other relevant statutory provision, the respondent acted without authority and, therefore, illegally in making the decision.

There are many activities in the ordinary course of administering the affairs of government that may be carried on independently of uny statutory provision express Ly or impliedly authorising the particular activity. One may put to one side for present purposes the need for Parliamentary

appropriation of funds to meet any necessary expenditure. I

do not doubt that the activities of the Canberra Tourist

Bureau in publishing periodically a list of accommodation facilities in Canberra and in making the necessary decisions as to what information such publications should contain are activities which do not require express or implied statutory authority. In this regard it is sufficient to refer to the

decision of Fox J. in Hawker Pacific Pty. Limited v. Freeland

and Ors. (unreported - 16 December 1983) referring to New

South Wales v. Bardolph (1934) 52 C.L.R. 455 at pp. 474-5,

For these reasons the application Fails and must be dismissed. In the light of the conclusion to which IL have come it would be inappropriate to express any view on the other matters avgued before me. The applicant must pay