23 FCR 144/20 ALD 357

Practice and Procedure - Administrative Decisions (Judicial Review) - Statement of reasons required by s. 13 - Whether a decision to grant financial assistance for the conduct of a Trade Practices matter is excluded from the operation of s. 13 by para. (f) of Schedule 2 - Whether para. (f) is directed solely to proceedings to which the Commonwealth or an instrumentality is a party - The meaning of "in connection with".

Administrative Decisions (Judicial Review) Act 1977: s. 13 and para. (f) of Schedule 2.

Trade Practices Act 1974: s. 170

and Mr. J.M. Ireland

Solicitors for the Appellants: Mallesons Stephen Jaques

Counsel for the Respondents: Mr J.J. Garnsey QC

and Mr. G.T. Johnson

Solicitor for the Respondents: Australian Government Solicitor

The appellants pay the costs of the respondents of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

An officer of the Australian Public Service authorised the grant by the Commonwealth of legal assistance, pursuant to s. 170 of the Trade Practices Act 1974, to persons who are the applicants in another proceeding (No. WAG121 of 1988 in the Western Australian District Registry of this Court). The appellants are respondents to proceeding WAG121 of 1988 which is brought under the Trade Practices Act 1974 ("the Trade Practices proceeding"). Neither the Commonwealth nor any Commonwealth instrumentality or officer is a party to that proceeding. This case concerns the question whether that decision under s. 170 is excluded from the operation of s. 13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by para. (f) of Schedule 2 to that Act.

2. The appellants sought to obtain a statement in writing, pursuant to s. 13 of the Judicial Review Act, from the officer who made the decision under s. 170. The decision-maker resisted the attempt to obtain that statement on the ground that the decision was excluded from s. 13 by paragraph (f).

3. Davies J., before whom the matter came at first instance, held that paragraph (f) excluded the decision from the operation of s. 13, and it is from his Honour's decision that the appeal was brought to this Full Court.

4. Having held that paragraph (f) excluded the decision to grant legal assistance from the operation of s. 13, Davies J. then dismissed the application before him to review the grant of legal assistance. His Honour took this course because counsel for the appellants informed him that the appellants were not in a position to proceed with their challenge to the grant of legal aid in the absence of a statement under s.13.

5. No question was raised before this Full Court as to the standing of the appellants to bring the application for review under the Judicial Review Act or this appeal.

6. Section 13 applies where a decision-maker makes a decision and is requested by notice in writing by a person entitled to make an application for review under s. 5 of the Judicial Review Act to furnish a statement in writing setting out the findings on the material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

7. One of the classes of decisions excluded from the application of s. 13 is specified in paragraph (f) of Schedule 2 in these terms:

"(f) decisions in connection with the institution or

conduct of proceedings in a civil court, including

decisions that relate to, may result in, the

bringing of such proceedings for the recovery of

pecuniary penalties arising from contraventions of

enactments, and, in particular -

(i) decisions in connection with the investigation

of persons for such contraventions;

(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."

8. Davies J. found that the decision to authorise the grant of financial assistance was a decision in connection with the conduct of the Trade Practices proceeding because it was a decision vitally connected with the conduct of that proceeding and provided the financial assistance to enable it to be conducted. His Honour relied upon his earlier decision in Hatfield v Health Insurance Commission (1987) 15 FCR 487 where he said at 491 that the words "in connection with" which appear in paragraph (e) of Schedule 2, referring to decisions relating to the administration of criminal justice, are wide words, but ordinarily are to be read down by reference to the context of the enactment.

9. Counsel for the appellants made two submissions on appeal, the first of which was that paragraph (f) is directed solely to the institution and conduct of proceedings to which the Commonwealth or a Commonwealth instrumentality is a party. Counsel's second submission was that the decision to grant financial assistance under s. 170 of the Trade Practices Act was not sufficiently related to the conduct of the Trade Practices proceeding to answer the description of a decision "in connection with the ... conduct of" that proceeding within paragraph (f).

10. We turn to the first submission. Paragraph (f) does not itself state that the proceedings to which it is directed are proceedings to which the Commonwealth or one of its instrumentalities is a party. On the contrary, the language of paragraph (f) is general and on its face encompasses proceedings in a civil court whether the Commonwealth or a Commonwealth instrumentality is or is not a party. If the legislature intended paragraph (f) to be confined in the manner suggested it would have been simple to have said so. To read into the paragraph the restriction suggested can only be justified if it leads to absurd results or otherwise offends what must be the clear intention of the legislature. We see no warrant to import this restriction into the plain language of paragraph (f). Certainly decisions within paragraph (f) include decisions made in connection with the institution or conduct of civil proceedings to which the Commonwealth is a party, but the paragraph is not restricted to them. For example, the Commonwealth may not be a party to a proceeding in a civil court, but an officer of the Australian Public Service may be subpoenaed to give evidence in the proceeding or subpoenaed to produce documents in Court. Decisions made by that officer or others concerning the subpoena (for example whether to claim privilege or to move to set it aside), if made under an enactment, would plainly fall within the particular words of sub-paragraph (f)(iv). The cases particularised in sub-paras (i) to (iv) were clearly seen by the Parliament as instances of the class of decisions referred to in the opening words of paragraph (f). We reject the first argument of the appellants.

11. We turn to the second argument of counsel for the appellants. The words "in connection with" are words of wide import; and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear. As Davies J. said in Hatfield at 491:

Expressions such as "relating to", "in relation to",

"in connection with" and "in respect of" are commonly

found in legislation but invariably raise problems of

statutory interpretation. They are terms which

fluctuate in operation from statute to statute... The

terms may have a very wide operation but they do not

usually carry the widest possible ambit, for they are

subject to the context in which they are used, to the

words with which they are associated and to the object

or purpose of the statutory provision in which they appear."

12. Reference to particular reported cases is of little assistance in determining the meaning of the words "in connection with" because they take their meaning from the particular statute in which they appear.

13. Section 170 of the Trade Practices Act provides:

"170(1) A person -

(a) who has instituted, or proposes to institute

a proceeding before ... the Court under

Part VI or s. 163A;

(b) who is entitled to participate, or has

been permitted to intervene, in a

proceeding before the Commission or the

Tribunal; or

(c) against whom a proceeding before the Court

has been instituted under Part VI or

section 163A,

may apply to the Attorney-General for a grant of

assistance under this section in respect of the proceeding.

(2) Where an application is made by a person

under sub-section (1), the Attorney-General, or

an officer of the Australian Public Service

authorized in writing by the Attorney-General, may,

if he is satisfied that it would involve hardship

to that person to refuse the application and that,

in all the circumstances, it is reasonable that the

application should be granted, authorize the grant

by the Commonwealth to the person, either

unconditionally or subject to such conditions as the

Attorney-General or officer determines, of such

legal or financial assistance in relation to the

proceeding as the Attorney-General or officer determines.

(3) In this section -

(a) a reference to a proceeding before the

Commission is a reference to a proceeding in

relation to an application for, or in relation

to the revocation of, an authorization; and

(b) a reference to a proceeding before the

Tribunal is a reference to an application to

the Tribunal for a declaration under sub-section

50A(1) or for a review of a determination, or of

the giving of a notice, by the Commission."

14. Thus, before the Attorney-General may consider an application for a grant of assistance there must be either a proceeding which has been instituted or which the applicant for assistance proposes to institute or in which he is entitled to participate or has been permitted to intervene or against whom the proceeding has been instituted. In the present case the Trade Practices proceeding had been instituted by the successful applicants for legal assistance before they sought assistance under s. 170.

15. The decision in question here was that financial assistance be given for the provision of legal representation in the Trade Practices proceeding. Questions of costs are obviously at the heart of decisions to institute or to continue legal proceedings. As Davies J. pointed out, "it is common knowledge that legal representation could not be provided in many cases and the proceedings would not be instituted or defended but for legal aid." To say that the decision to authorise the grant of financial assistance was only indirectly or tangentially related to the conduct of the proceedings is erroneous. The decision was in our view plainly made "in connection with" the conduct of the Trade Practices proceeding.