FEDERAL COURT OF AUSTRALIA

Great Barrier Reef Marine Park Authority v Forgie [1999] FCA 1071

GREAT BARRIER REEF MARINE PARK AUTHORITY v MS S FORGIE, DEPUTY PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

Q 143 OF 1999

DRUMMOND J

30 JULY 1999

BRISBANE

THE COURT ORDERS THAT:

1.                  The Great Barrier Reef Marine Park Authority have leave to amend its originating proceeding in the manner indicated in Exhibit 1 on the condition that Great Barrier Reef Marine Park Authority pay the second respondent’s costs of and incidental to the hearing in the Administrative Appeals Tribunal on Tuesday, 3 November 1998, to be agreed, and in default of agreement, to be taxed.

2.                  The Great Barrier Reef Marine Park Authority pay the costs of and incidental to the directions hearing and the hearing of the two notices of motion, filed 24 June 1999 and 5 June 1999, on Friday, 30 July 1999, to be agreed, and in default of agreement, to be taxed.

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

REASONS FOR JUDGMENT

1                     I have before me an application by the Great Barrier Reef Marine Park Authority (the Authority) to review what is described as the decision of the Administrative Appeals Tribunal (the Tribunal) that the Whitsundays Plan of Management (the Plan of Management), prepared by the Authority, is of an administrative rather than of a legislative character.  Ancillary and associated orders are sought.

2                     What happened, according to the evidence before me, was that a decision was made by the Authority rejecting the second respondent’s, Fantasea Cruises Pty Ltd’s (Fantasea), application for a mooring at Whitehaven Beach in North Queensland.  Fantasea brought proceedings in the Tribunal to overturn that decision.  During the course of a directions hearing before the Tribunal, counsel for the Authority sought to have the Tribunal consider, as a preliminary matter, the issue of whether the Plan of Management was legislative or administrative in character.  Counsel for Fantasea objected to the matter being dealt with in that way.  Deputy President Breen nevertheless directed a hearing in relation to that particular matter.

3                     That then came before Deputy President Forgie, who heard argument on that particular issue on 3 November 1998, and published reasons on 14 May 1999.  The Tribunal identified the issue for consideration, as I have already described it, in par 3 of its reasons published on 14 May 1999, and summarised briefly the circumstances in which that issue came before the Tribunal for consideration in par 4 of its reasons.  The conclusion reached by the Tribunal was that the Plan of Management was administrative rather than legislative in character, the reverse of the proposition urged upon the Tribunal by the Authority.

4                     That provoked the Authority’s application for an order of review which has brought the matter before this Court today.  Fantasea’s response was to file a notice of motion seeking to have the application for an order of review dismissed pursuant to s 10 the Administrative Decisions (Judicial Review) Act 1977 (Cth) or dismissed pursuant to O 20 r 2 the Federal Court Rules.  That, in turn, provoked an application by the Authority for leave to amend the application for order of review, to bring before the Court, in addition to that application, an application for a declaration that the Whitsundays Plan of Management is of a legislative character; s 39B(1A) the Judiciary Act 1903 (Cth) is invoked as conferring power on the Court to grant that relief.

5                     The difficulties in the way of the Authority being entitled to come to this Court now for an order under the Administrative Decisions (Judicial Review) Act turn on the proper characterisation on what the Tribunal did in expressing its views on the question of law as to the status of the Plan of Management.  The reasons published on 14 May 1999 are headed “Reasons for Decision”.  There is a covering sheet headed “Decision”, and that is described in the following words:

“The Tribunal decides that the Whitsundays Plan of Management is of an administrative, and not of a legislative, character.”

6                     However, a perusal of the Tribunal’s reasons incorporated in this document, including not only what is said at par 4 of those reasons but also at par 77, indicate that what the Tribunal did on 14 May 1999 was not pronounce a formal decision but expressed its conclusion or view on the legal status of the Plan of Management.

7                     Subsequently, on 11 June 1999, in a supplementary document headed “Decision and Reasons for Decision”, the Tribunal made reference to those passages in pars 4 and 77 of its reasons to which I have referred, and said:

“… I am satisfied there is an obvious error in the text of the decision within the meaning of sub-section 43AA(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).  It is an obvious error in that it is clear from my reasons that I had intended to follow Deputy President Breen’s earlier decision in the matter and to indicate only a view on the issue under consideration rather than a decision on the issue."

8                     The Tribunal member then concluded:

“For these reasons, pursuant to section 43 of the Act, I direct the Registrar to alter the text of the decision by deleting the words, ‘The Tribunal decides’ and substituting the words ‘The Tribunal indicates that it is its view’.”

9                     There is real doubt as to whether what the Tribunal published on 14 May 1999 does amount to a decision for the purposes of the Administrative Decisions (Judicial Review) Act.  It is sufficient to refer to what was said about the need for an element of finality before there can be a reviewable decision within the Administrative Decisions (Judicial Review) Act by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336 to 338. 

10                  The doubt about whether there is such a decision is reinforced if regard is had to the supplementary statement the Tribunal published on 11 June 1999.  It is my view, in order to determine whether action by a court or a body like a tribunal should be regarded as a judgment or order of the court, appealable as such, or a decision of a body like the Tribunal, reviewable under the Administrative Decisions (Judicial Review) Act, it is permissible and indeed necessary to have regard to evidence, including the reasons given by the tribunal, that are relevant to enabling the proper characterisation of the action of the court or tribunal to be arrived at.  Cf Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 and Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230.

11                  It seems to me clear enough that the answer to the question whether the Plan of Management has legislative or only administrative status will be, for all practical purposes, decisive of the litigation in the Tribunal, if it is decided in favour of the Authority.  So much is made clear from what is said at par (iv) on pp 15 and 16 of the Plan of Management itself.  Counsel for Fantasea was unable, in my view, to offer any convincing reason why such a view should not be formed of the potentially decisive nature of this question of law.

12                  The Tribunal has appointed a five day period commencing at the end of August for the resumed hearing of the matter.  It can be anticipated that, given its ruling that the Plan of Management is administrative only, there will be extensive evidence led as to what I will call the merits of whether the landing sought by Fantasea should not be granted.  If, however, the Tribunal is in error in concluding that the Plan of Management has administrative rather than legislative status, that hearing will achieve nothing, and the costs involved will have been incurred for nought. 

13                  The question of law which the Authority wishes to bring into this Court for determination can thus be seen to be the sort of question appropriate for resolution by a court, notwithstanding it is but one question that has arisen for determination in proceedings before the Tribunal.

14                  It is said that what the Authority proposes is not only to depart from the course it urged upon the Tribunal over objection by Fantasea, but, having failed to achieve its object in the Tribunal, it now wishes to fragment the proceedings in the Tribunal by swinging an issue into this Court, thereby interrupting the continuance of the proceedings before the Tribunal.

15                  That this Court places great emphasis, as a discretionary consideration against acceding to the kind of application made by the Authority here, on the need to avoid fragmentation of proceedings regularly commenced before another body such as the Tribunal is well established.  The comments of Deane J in Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593 referred to by counsel for Fantasea put, in my respectful opinion, the attitude of the Court in that regard very clearly and the reasons for that attitude.

16                  However, the fact remains that there is no bar against the kind of fragmentation of Tribunal proceedings which the Authority wishes to bring about here by the application it is making to this Court.  The contrary is the position.  Section 45 the Administrative Appeals Tribunal Act 1975 (Cth) makes provision for just that sort of fragmentation, in so far as it permits the Tribunal, in the course of a hearing, to interrupt those proceedings and refer a question of law to the Court for decision.

17                  The Authority did not invoke s 45 initially, at least, but was content to take its chances in obtaining a favourable determination on the status of the Plan of Management from the Tribunal.  However, after having failed to obtain that, it then made a request under s 45 the Administrative Appeals Tribunal Act for the referral to the Court of the question of law I have already mentioned.  The Tribunal’s response was to reject the request on the ground that the Tribunal was functus officio.

18                  Given this, it is doubtful whether it can truly be said that the Tribunal is functus officio, and can no longer refer a question of law to the Court for determination under s 45 the Administrative Appeals Tribunal Act even though the Tribunal has expressed its opinion on that question.  It is unnecessary to express a concluded view, however, on that last point. 

19                  The position thus is that a question of law capable of resolving the litigation in the Tribunal was raised and determined as a preliminary issue in the Tribunal at the behest of the Authority.  The determination went against the Authority, and the Authority now seeks to have this Court deal with that particular question.  Given the potentially decisive nature of the question and the impact a decision by this Court is likely to have on the future course of proceedings in the Tribunal (if the Authority can persuade this Court as to the correctness of its views on the matter in issue) and given the high probability of an ultimate determination by the Tribunal, if in favour of Fantasea, leading to an appeal under s 44 the Administrative Appeals Tribunal Act to this Court, I am of the view that it is appropriate to grant the Authority’s application for leave to amend its originating proceeding so as to raise the claim for a declaration in reliance upon s 39B(1A) the Judiciary Act 1903 (Cth).

20                  However, it is clear to my mind that Fantasea has suffered an injustice as a result of the way the Authority has conducted the proceedings in the Tribunal by urging on the Tribunal the course the Tribunal ultimately followed.  In response to a question raised by me in the course of argument, counsel for the Authority has indicated that it would submit to being granted leave to amend its originating proceeding in the way indicated conditional upon paying the costs of Fantasea of the hearing in the Tribunal on 3 November 1998.

21                  It seems to me appropriate to grant leave to the Authority to amend, subject to that particular condition.  The first order of the Court will be that the applicant authority has leave to amend its originating proceeding in the manner indicated in the document which I will mark exhibit 1 on condition that the applicant pay Fantasea’s costs of and incidental to the hearing in the Tribunal on 3 November 1998, to be agreed, and in default of agreement, to be taxed.

22                  I should say in amplification of that order, when I use the expression “of and incidental to the hearing of 3 November 1998” I intend that expression to encompass the costs of any prior directions hearings associated with the Tribunal’s decision to hear the question of law that I have referred to as a preliminary matter, which it did on 3 November.

23                  I have not expressed any concluded opinion on whether what the Tribunal did on 14 May 1999, either by itself or read with the action it took on 11 June 1999, is capable of amounting to a reviewable decision.  It seems to me that Fantasea acted reasonably in bringing its motion before me today, in effect, challenging the competency of an application for an order to review.  Since the Authority pressed on with its application to amend and may well need that amendment to lay a basis for the jurisdiction of this Court to deal with the question of law of such importance to it, I consider the Authority should pay Fantasea’s costs of and incidental to today’s hearing.

24                  The order I now make deals only with the costs of the hearing in this Court today is that the Authority shall pay Fantasea’s costs of and incidental to today’s hearing to be agreed, and in default of agreement, to be taxed.

Associate:

Dated:              30 July 1999