TXU Electricity Limited v Office of the Regulator General and Ors [2001] VSC 4

Supreme Court of Victoria|2001-01-30|Before: Ashley J

PRACTICE AND PROCEDURE - breadth of principle in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13 - "one party" cases - Whether a plaintiff is authorised to designate the Crown as substantial contradictor - Whether a court can and should restrict a party's right to appear by reason of the Hardiman principle.

The Office of the Regulator General (conveniently, "ORG") is a body corporate established by the Office of the Regulator General Act 1994 ("the Act"). It has powers and functions in respect of regulated industries, of which the electricity industry is one. Those powers include regulation of the prices which may be charged by the plaintiff and other electricity distributors.

In 1995 the Governor in Council made the Victorian Electricity Supply Tariff Order pursuant to power conferred by s.158A of the Electricity Industry Act 1993. The Tariff Order set prices which the plaintiff and the other distributors were permitted to charge in the period ending 31 December 2000.

It fell to ORG to determine the prices which the plaintiff and the other distributors would be permitted to charge after 1 January 2001. According to clause 5.10 of the Tariff Order the Regulator General was obliged, inter alia, to "utilise price based regulation adopting a CPI-X approach and not rate of return regulation". As I understand it, neither "price based regulation adopting a CPI-X approach" nor "rate of return regulation" are defined by the Tariff Order. They are terms which have a meaning, or perhaps more than one meaning, to economists.

ORG made a determination on 21 September 2000 setting up price controls for the period 1 January 2001 to 31 December 2005. In effect, the determination was adverse to the financial interests of the distributors.

There is a right of appeal to an appeal panel. Some if not all of the distributors appealed against the determination. The available ground of appeal was that the determination was based wholly or partly on an error of fact in a material respect.[1] The appeals succeeded in part. The appeal panel set aside at least part of the determination and remitted it for reconsideration in accordance with its reasons. That was by decision dated 30 October 2000.

The Regulator General made a re-determination on 1 December 2000.

In the interim the plaintiff had commenced the present proceeding. It was amended in light of the re-determination. The same issue is raised in connection with both the determination and the re-determination. It is this: that in determining the X factor applicable to the plaintiff (and in the case of each other distributor) ORG failed to adopt the required approach but instead adopted rate of return regulation.[2]

The proceeding before the court is affected by s.40 of the Act. It relevantly provides that "no proceedings may be brought in respect of a determination ... other than on the grounds that there was no power to make the determination."[3]

In light of s.40 the plaintiff alleges, broadly, that the determination and re-determination were made without power. ORG had no power to make a determination other than in accordance with clause 5.10 of the Tariff Order; and that, it is alleged, it did not do. The plaintiff seeks, in the event, declarations and orders in the nature of certiorari in respect of each of the determination and re-determination.

ORG was made a party to the proceeding because it was ORG that made the determination and re-determination. The role that ORG should adopt in the proceeding is a matter of dispute. Likewise the role, if any, of the second defendant, the State of Victoria. It is those disputes which led to the plaintiff filing a summons on 11 December 2000 in connection with which I heard argument on 12 December.

By the summons the plaintiff seeks orders as follows:

"(1) That the second defendant, the State of Victoria, be the proper contradictor in this proceeding.

(2) That the first defendant, the Office of the Regulator General, not file any affidavit, cross-examine any deponent or make any submission in this proceeding save as directed by the trial judge."

According to the plaintiff's argument the court, in controlling proceedings before it, might and should make the orders sought, in advance of trial, to ensure that there was no failure by a party to comply with the principle enunciated in R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors.[4] Further according to the plaintiff's submission, the circumstances were such that Hardiman had application. It being acknowledged that there must be a substantial contradictor, counsel for the plaintiff submitted that the State of Victoria was the appropriate party to undertake that role.

Both ORG and the State of Victoria denied that Hardiman had application to the situation in this case. In slightly different ways counsel for those parties submitted that ORG was the proper contradictor. They challenged, as I understand it, the plaintiff's proposal that the court was authorised to make orders of the type sought - at least antecedently to trial - though counsel for the State of Victoria specifically indicated that his client could be expected to abide any indication I might give as to who the proper contradictor should be. They further submitted that, if Hardiman had any application, it did not deny ORG the right to make submissions relating to its jurisdiction and powers, and (or involving) arguments concerning the construction of relevant legislation and subordinate legislation.[5] Counsel for ORG further submitted that the role of his client in the proceeding was properly that described by Woodward J (as President of the Trade Practices Tribunal) in Re Queensland Co-Operative Milling Association Ltd; re Defiance Holdings Ltd.[6]

In Hardiman the court observed that "in cases of this kind the usual course is for a tribunal to submit to such order as the court may make". It said later that "the presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal".

What was encompassed by the phrase "cases of this kind" and by the reference to "a tribunal"? It was submitted variously that the phrase and the reference marked out cases:

* heard by "tribunals", which word should be given a particular and confined meaning;

* where the adjudicating body is bound to comply with the rules of procedural fairness;

* where there is prospect of remitter with a need for re-hearing and/or redetermination (whether that prospect arises by reason of an appeal being allowed or an application for judicial review being successful);

* in which there is a substantial contradictor apart from the adjudicating body;

* not involving an administrative decision made by an officer for "the government" (for example, an officer of a revenue collector).

In determining the reach of the Hardiman principle, Hardiman is the starting point. There, application was made for mandamus and prohibition. It was directed to a statutory authority which in certain circumstances was bound to hold what the court described[7] as an administrative inquiry. The inquiry contemplated by the legislation potentially involved the calling and examination of witnesses, it being for the tribunal to decide who should be summoned to give evidence and produce documents. It was contemplated that the inquiry might be held in public. It was not necessarily the case that an inquiry would become adversarial in nature; but that is what it became in the particular case.

The features of Hardiman just described suggest that the principle there outlined at least applies:

(1) to cases in which application is made for judicial review of an administrative decision of a tribunal where the consequence of success will or may be remission of the matter for reconsideration by the tribunal; and

(2) where the decision of the tribunal involves it undertaking an adjudicatory function in a proceeding which is in substance (whether or not the relevant legislation requires it) inter partes; and

(3) where the tribunal is bound to observe one or both of the rules of procedural fairness.

That rationale of the principle, I think it is clear, is the avoidance of the fact (and perhaps the appearance) of partiality of a body which may be called upon to redetermine a matter.[8]

The question which then arises is whether the limits of the principle are set out in propositions (1) to (3) above. In my opinion the answer to that question is "no". But the precise limits of what has been called the letter and the spirit of the rule are not quite clear.

It is, I consider, first of all clear that the principle is not restricted in its application to proceedings which arise out of administrative decisions But its extension beyond such confines is not now pertinent.

Next, the principle was not said in Hardiman itself to be immutable. An example of "exceptional circumstances", in which the decision-maker ought be able to take a full role in (appellate) proceedings notwithstanding that the circumstances squarely fitted the Hardiman parameters, is National Competition Council v Hamersley Iron Pty Ltd.[9]

Further, I do not consider that the application of the principle is wholly confined to proceedings which are in substance inter partes. Fagan v The Crimes Compensation Tribunal[10] was not an inter partes proceeding. Brennan J did not say that the principle was necessarily inapplicable. He said:[11]

"But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf. Corporate Affairs Commission v Bradley) and neither a law officer nor a public official is heard by the court (cf. Reg. v Cook; Ex parte Twigg), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case."

I do not read that passage as excluding the operation of the Hardiman principle in a proceeding not inter partes in which the relief sought raises the prospect of remitter. Whether in such a case the principle is excluded may depend, it seems, upon whether the Attorney-General intervenes or a law officer or public official is heard by the court. His Honour's observations emphasised the need for a contradictor of substance, whether in a proceeding for judicial review or on an appeal, a point emphasised by Batt JA in Boyce.[12] They also emphasised the relevance of the public interest in the circumstances of the case then before the court - the presence of such an interest being pertinent to intervention by an Attorney-General.

The circumstance present in Fagan which emphasised the need for there to be a contradictor - the respondent in the absence of anyone else - was the fact that the claim was one made on the public purse upon a body representing that purse[13] The same circumstance was present in Sordini & Ors v Wilcox & Ors,[14] another case which did involve an inter partes proceeding but which by statute gave an applicant for legal aid a right to be heard.

It is next necessary to note that operation of the Hardiman principle has at times been curtailed in cases of review of administrative decisions - whether those decisions involve consideration of the rights of conflicting parties, or of one party only - in circumstances where the review is in the nature of a re-hearing. Re Queensland Co-Operative Milling Association Ltd; re Defiance Holdings Ltd[15] is an instance of the first class of case, and New Broadcasting Ltd v Australian Broadcasting Tribunal; Treasure (party joined)[16] is a case of the second type. The rationale for that curtailment appears in the judgment of Woodward J in the first of those cases[17] and in observations of Davies J in the second of them.[18]

Light may be cast upon the breadth of the principle by considering what is a "tribunal" for Hardiman purposes. Plainly the word includes what have been called "substitute courts": the Australian Broadcasting Tribunal, credit tribunals and small claims tribunals, for example.

In other cases, and for discrete purposes, decision makers have been legislatively accorded tribunal status - for example, by s.3 of the Administrative Law Act 1978. Professor E. Campbell has proposed that "tribunals" for the purposes of such legislation will not fall within the Hardiman principle if they do not decide cases inter partes.[19] Certainly I was referred to one case where a "tribunal" within that Act fully participated in an appeal in a "one party" matter without comment.[20] Even so, in light of what Brennan J said in Fagan Professor Campbell's proposition may be too wide.

Analysis of what is comprehended by the reference in Hardiman to "a tribunal" is I think, somewhat complicated by the Administrative Appeals Act 1975 (Cth) and the Administrative Decisions Judicial Review) Act 1977 (Cth).

The Administrative Appeals Act sets up a procedure for review of decisions made under other Acts insofar as those other Acts provide for review of those decisions. Many Commonwealth Acts so provide. The Act specifies that the decision-maker shall be a party to the decision, and contemplates that such person will undertake a role in the review; although it appears that the precise role to be undertaken will or may vary according to the circumstances.[21]

The Administrative Decisions (Judicial Review) Act provides for judicial review of certain decisions of an administrative character made under enactments. Various classes of decisions are excluded, not limited to but particularly decisions relating to the collection of revenue.[22] Some of the reported decisions subject to judicial review under that Act were made, in substance, in proceedings inter partes, where on review there was a natural contradictor.[23] In such cases the Hardiman principle, effectively, has been said to apply, although there has been some judicial disagreement about the consequences of non-compliance.[24] In at least one case there was not, on review, an obvious contradictor. In that case the Hardiman principle was curtailed to permit the contrary position to that of the applicant to be put by the administrative decision-maker.[25]

In another case again there was amongst named respondents an obvious contradictor, yet the Crown was added as a respondent to present the contrary argument, this being said by Burchett J to be "in accordance both with the letter and spirit of what was said in Hardiman's case."[26]

I next doubt that decisive light is cast on the meaning of the word "tribunal" where used in Hardiman by considering whether a particular decision-maker was bound to accord procedural fairness to an applicant for judicial review. It may be said, I consider, that if the obligation to accord such fairness was absent (it arises where a public body has the capacity, in making an administrative decision, to destroy, defeat or prejudice a person's rights, interests or legitimate expectations) then the decision-maker should not be considered a "tribunal". But in light of the breadth of operation of the obligation I would not accept the contrary.

I started with Hardiman itself. I go back to it: "In cases of this kind the usual course is for a tribunal to submit to such order ... ". The passage clearly suggests that the court was not purporting to set up some altogether new principle. Help may then be obtained by considering the role historically adopted by decision-makers in proceedings in the High Court.

There are many reported cases in which writs of prohibition, mandamus and sometimes certiorari were sought against the old Court of Conciliation and Arbitration, later against Commissioners of the Australian Conciliation and Arbitration Commission, and even later again against members of the Commonwealth Industrial Relations Commission. Characteristically, such bodies or individuals were discouraged by the High Court from appearing in proceedings of that kind. The situation which historically obtained and the impact of Hardiman was, in my respectful opinion, clearly explained by Murphy J in his dissenting judgment in R v Gough & Anor; ex parte Key Meats Pty Ltd[27] as follows:

"This Court in the past has discouraged the Commission from appearing, and the Attorney-General and bodies such as the Australian Council of Trade Unions from intervening, on proceedings such as these. Neither the Federation nor the union has appeared to assist the Court with argument. It is very unsatisfactory that the Court should have to decide the interpretation and application of important procedural powers of the Commission after hearing the prosecutor only. The reason for discouraging the Commission's predecessor, the Court of Conciliation and Arbitration, was no doubt the partly judicial character of the Court of Conciliation and Arbitration. Such discouragement of judicial bodies has not always been unqualified. In R v Kent Justices; Ex parte Commissioner of Metropolitan Police an English Divisional Court (Hewart C.J., Humphreys and Singleton JJ.) considered that justices should be represented, or argument presented to sustain their decision, where otherwise an appeal against their decision would be pursued without any participation by the respondent. In the United States of America on review of an order of an administrative commission agency or officer the commission or other body should appear to defend if there would be no other party to ensure the proper adversarial clash requisite to a case or controversy: McCord v Benefits Review Board, U.S. Department of Labour. In Reg. v Australian Broadcasting Tribunal; Ex parte Hardiman where the application by the prosecutor for an order against the Tribunal was opposed by a number of respondents this Court said: 'The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal'. In my opinion, this Court should have had the assistance of the Commissioner or the Attorney-General on the question of powers and procedures of the Commission. I appreciate that the failure to seek to provide such assistance has been in deference to this Court's past wishes. For my part, I would welcome such assistance at least in a case concerning the Commission's powers and procedures where otherwise only one side would be heard."

There are also many reported cases in which other decision-makers - courts and a variety of statutory authorities - were the subject of proceedings in which prerogative relief was sought.

At least where there was an obvious contradictor, it was the practice for a court not to be represented.[28]

In the case of many other statutory decision-makers, to the contrary, there was no apparent inhibition upon the decision-maker presenting full argument, whether or not there were parties on hand to support the existence of power, and to argue that action had been taken within power.[29]

Distinct from cases in which prerogative relief was sought, there are many reported cases in which decision-makers were parties to, and appeared substantively in appellate proceedings. The role of the decision-makers in such cases was dictated by statute.[30] They do not cast light, in my opinion, upon the resolution of the present problem. If there was to be remission to the decision-maker in the event of successful appeal, and if that carried with it any concern about the fact or appearance of partiality, the short answer is that the pertinent statute nonetheless set up a regime in which the decision-maker was made a substantive litigant on the appeal.

What can be gleaned from all of this? Limiting my consideration, for reasons explained, to cases in which prerogative relief was sought, the position in the case of industrial matters and courts stood in contrast to the position otherwise. Industrial tribunals and courts characteristically did not argue questions of power. In such cases there was always a natural contradictor on hand.

In other situations, however, there was a clear pattern that decision-makers argued questions of power irrespective whether they had heard and determined proceedings which were in substance inter partes, and irrespective whether reconsideration would or might be required in the event of success in the proceeding for prerogative relief. Particularly, for present purposes, that was so in the case of "one party" determinations where there was no other contradictor.

All in all, the context in which the Hardiman observations were made suggests that the High Court was there giving its imprimatur to the course previously adopted in industrial and court matters, and was probably indicating that in proceedings for judicial review the same course should at least be adopted by decision-makers before whom hearings which were in substance inter partes were conducted. In such cases there would be a natural contradictor. Moreover, there might reasonably be as much concern about partiality or the appearance of partiality if a matter was to be remitted to such a decision - maker as there might be in the case of a court or industrial tribunal to which there was to be remitter.

It cannot be said, in my opinion, that Hardiman plainly extended the then-existing regime to decision-makers in "one party" cases. But there was and is good reason for giving the principle operation in at least some cases of that kind. The cases in which the principle sensibly applies are those in which:

* the decision-maker is bound to apply the rules of procedural fairness; and

* the application for prerogative relief raises the prospect of remitter; and

* there is a public interest as would justify the intervention of the Attorney-General.

Even so, the dictum of Brennan J in Fagan makes it clear that the principle should not be applied if the Attorney-General does not intervene and no "law officer" or "public official" is heard by the court. In the absence of such intervention the decision-maker in such a case should characteristically assist the court, particularly upon the question of power, and in doing so adopt as little of the role of partisan as is possible.

I said a moment ago that there was and remains good reason for giving the Hardiman principle operation in certain "one party" cases. The reason is this: in such a case, where there is prospect of remitter, a concern as to the fact or appearance of partiality could arise. It would not be a concern that the decision-maker was or appeared to be favourably disposed to one of two parties; but rather that the decision-maker was or appeared to be unfavourably disposed to the prosecutor.

The fact that decision-makers in "one party" cases have characteristically appeared in appellate proceedings does not tell against there being good reason why such decision-makers should not appear in certain proceedings for prerogative relief. As I pointed out, most often statute has prescribed a role for the decision-maker on an appeal.

Does the Hardiman principle have potential application to the present case?

There is a serious question whether it is open to a plaintiff to designate the Crown as the substantial contradictor - as distinct from the Attorney-General choosing to intervene. There is also a serious question whether a court can or should limit the right of appearance of a party to a proceeding; or whether the consequence of breach of the Hardiman principle lies in the realm of costs orders. Subject to consideration of those questions I consider that the present case does attract the operation of the principle, adapted to the circumstances of a 'one party' matter. In so concluding:

* I consider (although the matter was not fully argued) that ORG was obliged to accord the plaintiff procedural fairness, adapted to the particular circumstances.

* I treat the case as one involving determinations in a "one party" context, notwithstanding that ORG received submissions from persons other than the plaintiff and other electricity distributors.

* I am of opinion that the matter is one in which, in the public interest as the law understands that concept, the Attorney-General would be entitled to intervene.

* I take account of the fact that, absent intervention by the Attorney-General, there would be no substantial contradictor in this proceeding except if ORG appeared.

* I take account of the fact that if the plaintiff succeeded the likely consequence would be quashing of the determinations and the remission of the substantive matter for re-determination by ORG; and that in such circumstances the potential would exist for at least the appearance of partiality of the type which I earlier described.

* I have not ignored the fact that there is a statutory right of appeal from a determination of ORG; and that on such appeal ORG may at least be required to give "assistance" to the appeal panel.[31]

I think that, if the Attorney chooses to intervene, it is highly desirable that he conduct the entirety of the defence, and that ORG, as a party, stay silent. If ORG, in the circumstances of the particular case, was to address the question of power, it would at least be extremely difficult to draw the line.

Is it open to a plaintiff to designate the Crown as substantial contradictor?

I was referred to no case in which it has been said that a plaintiff may designate the Crown as substantial contradictor in order to ensure compliance with the Hardiman principle. There is one case where the Crown was in fact added as a party.[32] But it does not appear that the Crown was added in the face of its opposition.

In my opinion it would be wrong in principle to conclude that a plaintiff, in a case of the type now under consideration, could in effect oblige the Crown to be the substantial contradictor by the simple course of naming the Crown as a defendant and designating it that role. So to conclude would in essence replace the Attorney-General's right of intervention with a plaintiff's determination of what was an appropriate case for intervention.

Principle apart, there is, as I said a moment ago, no authority for the proposition that such a course is available; and the dictum of Brennan J in Fagan rather suggests that it is not.

To conclude that a plaintiff cannot do what the plaintiff has here attempted to do is not to say that a court should not offer guidance to a decision - maker about the nature and extent of that party's participation in a judicial review proceeding. There is, I consider, a good deal to commend the view expressed by Professor Campbell that

" ... guidance might be offered at an early stage of the proceedings and might possibly include a direction that the relevant Attorney-General be notified of the matter before the court, so that he or she might consider whether to seek leave to intervene or exercise a right of intervention. It is surely not right that a respondent should be permitted by the court to play a true adversarial role during the hearing only to find at the conclusion of the proceedings that he, she or it is censured for having played that role, and is disciplined by way of orders as to costs."[33]

Court guidance, perhaps in the form of a direction, is to be contrasted with what the plaintiff has done and seeks to do in this proceeding. For here the plaintiff by its initiating document named the Crown as a defendant, and sought in effect to oblige it to be the substantial contradictor; whilst by its summons filed 11 December 2000 it sought orders that the Crown be the proper contradictor and that ORG (subject to any later direction) not take any steps to present a defence to the proceeding.

Counsel for the second defendant argued, particularly by reference to s.7A of the Act, that ORG is the Crown for the purposes of administering the Act. So, it was said, in proceedings of the present kind ORG was appropriately the party before the court to put submissions as the State. Counsel sought to equate ORG, for present purposes, with taxing authorities. He reminded me that such authorities are commonly active disputants in appellate proceedings; and that the consequence of such proceedings can be return of a matter for reconsideration according to law.

There were several threads to that submission. For present purposes I refer to just one of them. Acceptance or rejection of the particular thread is not decisive, for I have concluded that the plaintiff was not entitled to designate the Crown as substantial contradictor. Nonetheless, I express my opinion that s.7A, in saying that ORG represents the Crown, should be taken to be saying only that ORG represents the Crown in exercising powers and undertaking functions confided it by the Act. The exercise of such powers and functions is distinct from undertaking the role of substantive defendant on an application for judicial review, notwithstanding that the application arises out of the exercise of those powers and functions.

Application of the Hardiman principle. Can and should a party's right to appear be restricted by the Court?

No case was cited to me in which a court has precluded a party from fully participating in a judicial review proceeding in order to avoid breach of the Hardiman principle.

Counsel for the plaintiff relied upon a passage in the judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council[34] as indicating that a party may be so restrained. I do not consider that the passage cited supports the plaintiff's argument. Oshlack concerned (as have many of the cases in which Hardiman has been considered) a costs issue.

Counsel also relied upon Custom Credit Corporation Ltd v Lupi[35] O'Bryan J said [36] that in the circumstances described "a court might decline to hear the tribunal as a separate party". That was an inter partes matter where counsel for the opposing parties had presented full argument. The dictum does not have obvious application in a "one party" case where the Attorney-General cannot or will not intervene.

Again, counsel cited Cairns Port Authority v Albietz[37]. That was another judicial review decision reported in connection with a costs issue. There were contending parties apart from the decision-maker. But the decision-maker took a very active role in the litigation.

"By correspondence between the parties CPA sought to restrict the Information Commissioner's role in the litigation, but the Information Commissioner did not accede to the request. The matter was not brought before the Court for further directions. There can be no general expectation that the Court would be prepared to decide in advance what roles the parties should play, especially when the parties are at odds on the question. A court may be able to assist, if asked to do so, in guiding the parties to a manageable division of responsibility and role, but that was not requested. Generally it is for each party to decide what role he, she or it wishes to play, and of course the necessity and propriety of that role will eventually be considered by the Court when the question of costs arises."

Counsel for the plaintiff relied upon passages in his Honour's judgment[39] concerning the proper role of the State of Queensland as a respondent in that proceeding. But consideration of the passages cited show that his Honour's remarks were made in the particular context of the legislation before the Court.

I note, I should add, his Honour's observation[40] that

"No difficulty exists when there is a simple conflict between citizen and public official - the decision-maker is the natural person to defend the decision."

That should be read, I respectfully consider, subject to what Brennan J said in Fagan. His Honour did refer to Fagan, but not in the context of the observation just cited.

In argument I drew attention to the course adopted by Southwell J in Gurvich.[41] His Honour raised in the course of trial the question whether it was appropriate for the decision-maker to be represented. Ultimately he concluded that it was. But the fact that his Honour raised the matter suggests that he was of opinion that the court might determine (at least at trial) not to hear a party.

Finally, so far as courts are concerned, should refer to the Human Rights and Equal Opportunity Commission case.[42] There the Commission presented full argument to the Federal Court over objection of the applicant. Burchett J said[43] that

"If I had thought outstanding issues of fact remained to be decided in this case, I would not, in the circumstances, have considered it appropriate to compel the applicant to accept a referral back to the Commissioner. That is the consequence of ignoring Hardiman."

But Mansfield J (with whom Drummond J agreed) said[44] that

"As no question of leave is involved, I do not think that the court has any option but to entertain the submissions, whilst at the same time expressing its conclusions that it was undesirable ... for them to have been presented."

Courts aside, I was very properly referred by counsel for ORG to the recent decision of O'Connor J, as President of the Commonwealth Administrative Appeals Tribunal, in Re Penola High School & Ors and Geographical Indications Committee & Ors;[45]and to the even more relevant decision of the full Federal Court on an application for review of that decision [46]. There, in a merits review under the Administrative Appeals Act 1975 (Cth), where it appeared there would be full argument for the contending parties, O'Connor J considered that she was empowered by provisions of the governing Act to limit the role of the decision-maker at the hearing before the tribunal.

Before the full Federal Court the decision-maker sought prerogative, injunctive and declaratory relief; and as well that the tribunal's decision be set aside or quashed under powers conferred by the Administrative Decisions (Judicial Review) Act. The Court held that the circumstances did not give the applicant access to the Judicial Review Act; and that relief should otherwise be refused on discretionary grounds. Obiter dicta, the Court expressed the opinion that, particularly in cases where there is a natural contradictor, the role of a tribunal on a merits review might properly be limited; and that the limitations imposed in the present instance were consistent both with what had been said in Hardiman and with the role of a decision maker on a merits review described by Lockhart and Hill JJ in BTR plc v Westinghouse Brake & Signal Co (Australia) Ltd.[47]

69 Penola is authority for the proposition that in the particular statutory setting orders might in certain circumstances be made limiting the role to be played by the decision-maker. I think that it does not aid resolution of the question whether this court can and should make such an order on an application for judicial review.

All in all, if courts were empowered to deny a decision-maker the right to participate fully in proceedings for judicial review, it could sensibly be expected that courts would have exercised that power rather than hear the decision-maker and then deal with an inappropriate level of participation by a costs order. It tells against the existence of such a power that the Hardiman principle has so often been agitated in a costs context.

But if a power of the type just mentioned exists at all, I do not consider that it exists in the case of "one party" matters in which the Attorney-General has not intervened. In such matters the decision-maker ought be able to appear and present a case - consistently always with the dictum of Brennan J in Fagan. As this proceeding now stands the second defendant is not, for reasons explained, a proper party; and the Attorney-General has not intervened.

The fact or appearance of partiality; the particular circumstances of this case.

I have great difficulty in perceiving that the fact or appearance of partiality (assuming that both could be relevant) would in substance be any different depending upon whether the substantial contradictor was ORG or the Attorney-General intervening.

It was made clear by argument that although the question whether ORG had power to make the impugned determinations will necessarily involve consideration of the determinations themselves,[48] it is nonetheless contemplated that both the plaintiff and the contradictor will call evidence as to the meaning which should attach to the critical terms in clause 5.10 of the Tariff Order. It was also made perfectly clear that, whoever be the contradictor, it is intended that persons employed by ORG will give evidence upon that question. Counsel for the plaintiff did not seek to submit that such evidence should not be adduced. Apparently the prospective witnesses spent years formulating the determination. It can fairly be said, I suppose, that they have something to contribute to the question of the meaning of the critical terms in clause 5.10 of the Tariff Order (as distinct from seeking to construe the determination and re-determination).

In the event, employees of ORG will at trial inevitably give evidence which in substance will support the impugned determinations. It could not be doubted that those witnesses will indeed be partial in the sense that they will seek to attach meanings to the critical terms in the Tariff Order which will support the impugned determinations.

Now, whoever is to be the contradictor, counsel for that party will no doubt cross-examine the plaintiff's witnesses, call the witnesses to whom I have just referred, perhaps call some further expert witness, and make submissions to support the meaning attached by ORG to the critical terms. Subject always to any objection that counsel for the plaintiff might seek to raise, it was indicated to me in argument that if the Crown was to be the contradictor then senior counsel who appeared for ORG before me (who has appeared for ORG in the past)[49] would be instructed to appear on behalf of that party. The same counsel, I add, appeared for ORG in the appeal which set aside at least part of the first of the impugned determinations.

In substance, then, whether ORG or the Crown is to be the contradictor the same counsel (subject to any objection) will cross-examine the plaintiff's witnesses, call the same employees of ORG to give evidence, call any additional evidence, and make submissions. Whether or not the same counsel appears, it is improbable that the cross-examination, the evidence of the employees, any other evidence or the submissions will vary depending upon whether ORG or the Crown is the nominal contradictor. Moreover, if the court was to find for the plaintiff, set aside one or both of the impugned determinations and remit the matter for re-consideration, it seems likely that the employee witnesses, who are shown to hold senior positions, would be involved in the reconsideration and re-determination.

Senior counsel for the plaintiff submitted that there would be a reasonable perception in the mind of the public, at least in a mind of the 5 electricity distributors, and particularly in the mind of his client - which as an electricity and gas distributor has daily dealings with ORG - that ORG, if it became a protagonist in the litigation, might not be able to maintain necessary impartiality in the event of remitter. He referred to what he said was the active adversarial role adopted by ORG on the hearing of the appeal to which I earlier referred.

In all the circumstances that I have described I doubt, notwithstanding the submission to which I have just referred, that the fact or appearance of partiality would be any different depending upon whether the defence to this proceeding was conducted by ORG or the Attorney-General intervening. It is fair to say that any difference would be essentially symbolic.

I consider, however, that for reasons indicated the matter is one in which the Hardiman principle, adapted to 'one party' cases, makes it desirable for the Attorney-General to intervene. The fact that the consequence of him doing so would produce a symbolic rather than a substantive difference is not a reason why he should not do so.

For reasons described I will not make the orders sought by paragraphs 1 or 2 of the plaintiff's summons filed 11 December 2000. I will not give a formal direction that the Attorney-General be advised of the opinion I have expressed in this ruling that it would be appropriate for him to intervene and to present the substantive defence to the plaintiff's application; and that were he to do so it would be inappropriate that ORG play any part in the proceeding. But I would expect what I have said to be made known to the Attorney-General at least by the second defendant.

Because it may be that the Attorney-General will seek to intervene I will not make any order at this time in respect of the status of the second defendant as a party to the proceeding.

If the Attorney-General chooses not to intervene ORG must be the contradictor. In undertaking that role, it would be well advised to pay careful attention particularly to the observations of Brennan J in Fagan. It should not imagine that, if it participates inappropriately, the court might not deal with that matter in any costs order that it makes.

[2] See para 15 of the Amended Statement of Grounds filed 6 December 2000.

[3] Nothing was said in argument concerning s.41. I put it to one side.

[4] [1980] HCA 13; (1980) 144 CLR 13 at 35-36 per Gibbs, Stephen, Mason, Aickin and Wilson JJ.

[5] It was apparent from the argument that there would be real difficulty in determining the confines of this area of allegedly permissible involvement by ORG in the trial.

[8] That not only appears from Hardiman at 36, it is emphasised by the judgments of Batt and Ormiston JJA in Boyce v Munro & Ors [1998] 4 VR 773 at 781 lines 37-41 and 782 lines 39-45 respectively, by the remarks of O'Bryan J in Custom Credit Corporation Ltd v Lupi & Ors [1992] VicRp 8; [1992] 1 VR 99 at 111 lines 31 -36, and negatively by the judgment of Southwell J in The Secretary to the Department of Health and Community Services & Ors v Gurvich [1995] VicRp 44; [1995] 2 VR 69 at 72 lines 26-40.

[9] [1999] FCA 1370, paras 23-25.

[18] At 430 line 46 to 451 line 22. But contrast Re Penola High School & Ors and Geographical Indications Committee & Ors (O'Connor J, Administrative Appeals Tribunal, 19 October 2000, unreported), and, on appeal, Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877.

[19] "Role of Respondents to Applications for Judicial Review", 6 Australian Journal of Administrative Law, p.7.

[20] Serban v Victoria Legal Aid [1998] 2 VR 326.

[21] See New Broadcasting, (supra) at 430-431; see also Vidler v Secretary, Department of Social Security & Anor (1996) 41 ALD 261 at 271-272; contrast re Penola High School(supra) and Geographical Indications Committee (supra).

[23] See, eg. Commonwealth v Human Rights and Equal Opportunity Commission & Anor (1995) 63 FCR 74 and Commonwealth v Human Rights and Equal Opportunity Commission & Anor (1997) 76 FLR 513.

[24] See 63 FCR 74 at 84D-85E per Lockhart J and at 87D per Sheppard J; 76 FCR 513 at 526F-527G (strongly) per Burchett J, at 537G-539G per Mansfield J and at 531B-D per Drummond J.

[26] Australian Conservation Foundation v Forestry Commission (Tas) & Ors (1988) 81 ALR 166 at 171 lines 17-22.

[28] See, eg. R v District Court of the Metropolitan District & Ors; ex parte White [1966] HCA 69; (1966) 116 CLR 644, R v The District Court of the Northern District of the State of Queensland & Ors, ex parte Thompson [1968] HCA 48; (1968) 118 CLR 488; compare Jago v District Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23.

[29] See eg. R v Deputy Federal Commisioner of Taxation [1926] HCA 3; (1926) 37 CLR 368, R v The War Pensions Appeals Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, R v The Comptroller General of Customs & Anor; ex parte Woolworths Ltd & Anor [1935] HCA 37; (1935) 53 CLR 308, R v The Commonwealth Rent Controller & Ors; ex parte National Mutual Life Association of Australasia Ltd [1947] HCA 32; (1947) 75 CLR 361, R v Commissioner of Patents; ex parte Martin [1953] HCA 67; (1953) 89 CLR 381, R v The Members of the Railways Appeals Board and the Commissioner for Railways (NSW); ex parte Davis [1957] HCA 22; (1957) 96 CLR 429, R v The Public Vehicles Licensing Appeal Tribunal of the State of Tasmania & Ors; ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, R v Winneke; ex parte the Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, Re Residential Tenancies Tribunal of New South Wales and Henderson & Anor; ex parte the Defence Housing Authority (1997) 190 CLR 410.

[30] See the very many proceedings to which the Commissioner of Taxation, his predecessors, his State counterparts and Collectors of Customs have been parties, and cases involving the Registrar of Trade Marks and the Commissioner of Patents; see also, for example, Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635, and Matthews v Chicory Marketing Board (Victoria) [1938] HCA 38; (1938) 60 CLR 263.

[31] See s.37(5) of the Act. I say nothing as to whether giving "assistance" exhausts ORG's role; or as to the limits of "assistance".

[32] The Australian Conservation Foundation case, (1988) 81 ALR 166.

[33] "Role of Respondents to Applications for Judicial Review", supra, p.14.

[45] Decision 19 October 2000, unreported.

[48] Which appear to include the reasons; see s.27(1).

Administrative Appeals Act 1975(Cth)

is of what is comprehended by the reference in Hardiman to "a tribunal" is I think, somewhat complicated by the Administrative Appeals Act 1975 (Cth) and the Administrative Decisions Judicial Review) Act 1977(Cth)

Regulator General Act 1994

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Judgment (144 paragraphs)

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Cases Cited (24)