Re Davison (No 2) [1997] HCA 45

High Court of Australia|1997-08-20|Before: Gaudron J, Gummow J, McHugh J

The applicant's claim that the Self-Government Act is invalid is the foundation for a further claim that the Australian Capital Territory Supreme Court Act 1933 Cth was not converted into an enactment of the Australian Capital Territory by the Self-Government Act [2] but remains an act of the Commonwealth Parliament. That, in turn, supports his claim that the Supreme Court of the Australian Capital Territory is "a Commonwealth agency" subject to the FOI Act and, thus, the Administrative Appeals Tribunal has jurisdiction to entertain his application for review.

In his judgment with respect to the applicant's earlier application for leave to issue process, McHugh J observed, by reference to s 122 of the Constitution and statements in Capital Duplicators Pty Ltd v Australian Capital Territory [3] and Berwick Ltd v Gray , [4] that "it might be thought that a claim that the Australian Capital Territory (Self-Government) Act was invalid would have little prospect of success". [5] However, his Honour added that "if the applicant's statement of claim had shown the basis of such a challenge and that he had standing to make it, I would give him leave to mount such a challenge, provided the statement of claim was not otherwise defective". [6]

Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-265 2. Berwick Ltd v Gray (1976) 133 CLR 603 at 607 3. Re Davison's Application (1997) 71 ALJR 1486 at 1487 4. Re Davison's Application (1997) 71 ALJR 1486 at 1487

As already indicated, the statement of claim involved in this application differs in important respects from that considered by McHugh J. Indeed, as the applicant indicates in his affidavit sworn in support of the present application, he has "relied upon the Court's reasons for judgment" with respect to his earlier application in drawing his second statement of claim. In my view, the statement of claim now discloses material indicating that the applicant has standing to seek relief with respect to his application to the Administrative Appeals Tribunal. And it also discloses the basis of his challenge to the validity of the Self-Government Act.

There is, perhaps, some material in the statement of claim which is extraneous to the matters which the applicant wishes to agitate. That is not a matter that is likely to cause incurable embarrassment. There are, however, two matters which are potentially embarrassing and to which attention should be drawn. The first is that it is not at all clear that the Administrative Appeals Tribunal can be made a party to the proceedings or, if it can, that it can be made a party by that name. The other matter is that the Australian Capital Territory should be made a party to the proceedings.

Subject to the joinder of the Australian Capital Territory and clarification of the position with respect to the Administrative Appeals Tribunal, I would grant leave to the applicant to issue the writ of summons and statement of claim.

High Court of Australia Gaudron J Re Davison (No 2) (S 97/006) [1997] HCA 45

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