FEDERAL COURT OF AUSTRALIA

Pileggi v Australian Sports Drug Agency [2004] FCA 955

ADMINISTRATIVE APPEAL – question of law – facts as found by the Tribunal – no material error of law

STATUTORY CONSTRUCTION – meaning of “request” – meaning of “state” – whether words to be given ordinary meaning

AUSTRALIAN SPORTS DRUG AGENCY ACT 1990 AND REGULATIONS – requirements of regulation 17 – whether composite conduct (oral and written) can satisfy – objective test – whether written notice given in conformity with regulation 37

WORDS AND PHRASES – “request” – “state”

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Australian Sports Drug Agency Act 1990 (Cth), ss 11, 15, 16, 17, 67A

Australian Sports Drug Agency Regulations 1999 (Cth), regs 17, 27, 37, 61

Hope v Hope (1854) 43 ER 534, referred to

Re Elkateb; Lawindi v Elkateb (2002) 187 ALR 479, referred to

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, referred to

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, referred to

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited

Collector of Customs (Tasmania) v Davis (1989) 23 FCR 378, referred to

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (Cth) (1956) 94 CLR 509, followed

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 204 ALR 80, referred to

Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510, referred to

Grozier v Tate (1947) 64 WN (NSW) 1, referred to

Thompson v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72, referred to

Director of Public of Prosecutions v Ryan (unreported, Supreme Court of Victoria, Mandie J, 13 July 1994), referred to

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550, referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, referred to

CAROLINE PILEGGI v AUSTRALIAN SPORTS DRUG AGENCY

V 896 of 2004

KENNY J

22 JULY 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

the proceeding

1                     This is an appeal, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 July 2004 (“the decision”).  In its decision, the Tribunal affirmed a decision made by the Australian Sports Drug Agency (“ASDA”) on 29 June 2004 that the applicant, Ms Caroline Pileggi, had, without reasonable cause, failed to comply with a request to provide a sample, which was made under regulation 17 of the Australian Sports Drug Agency Regulations 1999 (Cth) (“the Regulations”).  When such a decision is made by ASDA, then, as soon as practicable, ASDA must enter the name of the competitor (in this case, Caroline Pileggi) and certain other details on the Register of Notifiable Events maintained by it for the relevant drug testing scheme (“the Register”):  see the Regulations, reg 27.

2                     A competitor, as defined in s 2A of the Australian Sports Drug Agency Act 1990 (Cth) (“the Act”), may apply to the Tribunal for a review of the decision to enter his or her name on the Register:  see the Act, s 15(4) and the Regulations, reg 61.  If the Tribunal sets aside the decision, then ASDA must, as soon as practicable, remove any entry that was made as a result of its decision:  the Act, s 16(2).  As already indicated, Ms Pileggi unsuccessfully sought review of the decision that resulted in her name being entered on the Register.  The Tribunal’s decision is the subject of this proceeding.

circumstances requiring expedition

3                     The hearing of the matter was expedited because Ms Pileggi desires to compete in the Olympic Games.  In order to compete in the Games, she must be nominated to the Australian Olympic Committee by the Australian Weightlifting Federation.  Ms Suzanne Wallace, solicitor for ASDA, deposed to the receipt of a letter from the Secretary-General to the Australian Olympic Committee that relevantly stated:

The Olympic Games are organised and staged by the Athens Organising Committee for the Olympic Games (‘ATHOC’) on behalf of the International Olympic Committee (‘IOC’).  The deadline for entries for participating athletes is, accordingly, determined by these two organisations and is binding on all National Olympic Committees, such as the AOC.  Under the Olympic Charter, only National Olympic Committees may enter athletes as participants in the Olympic Games.

The IOC and ATHOC have determined the deadline for entries is 21 July 2004 in Athens.  This deadline is subject to the “Late Athlete Replacement Policy for the 2004 Athens Olympic Games”.

If Ms Pileggi succeeded in her attempt to replace the current nomination of a female weightlifter to the Australian Olympic team, it appears that she would need to leave Australia no later than the weekend of 7-8 August 2004 in order to compete at the Olympic Games.

4                     It further appears that Ms Pileggi has applied to the Court of Arbitration for Sport to appeal against the decision of the Australian Weightlifting Federation to withdraw her nomination for selection to the 2004 Olympic team, and that this late application cannot succeed unless the decision of the Tribunal is set aside.

the circumstances relevant to the appeal

5                     The following account of the facts is taken from the Tribunal’s reasons for decision.

6                     According to the Tribunal, Ms Pileggi is “a highly ranked national level athlete in the Australian Weightlifting Federation (“AWF”) shadow Olympic squad”.  ASDA selected her for a drug test, on a no advance notice basis.  At the relevant time, 3 June 2004, Ms Pileggi was training at the Olympic Weightlifting Institute (“the gymnasium”) in Sigatoka, Fiji.  ASDA asked the New Zealand Sports Drug Agency (“NZSDA”) to assist it in the sample collection process.  Following this request, Ms Penny Edwards, NZSDA, was appointed the Drug Control Official and Mr Vaughan Jones, NZSDA, the Drug Control Chaperone.  They were to collect a urine sample from Ms Pileggi in Fiji for testing.  ASDA briefed Ms Edwards and Mr Jones as to Ms Pileggi’s whereabouts and provided them with some photographs of her.

7                     At about 5.20 pm on 3 June 2004, Ms Edwards and Mr Jones attended the gymnasium.  When Mr Jones approached Ms Pileggi, she denied her identity, saying that her name was “Michelle” and that “Carol” would be along later.  Ms Pileggi left the gymnasium, followed by Ms Edwards and Mr Jones.  It was not disputed that only two to three minutes elapsed from the time Ms Edwards and Mr Jones left the gymnasium to when Ms Pileggi drove her car out of the gymnasium carpark.

8                     Before the Tribunal, Ms Pileggi, Ms Edwards, Mr Jones and other witnesses gave different accounts as to what actually happened when Ms Pileggi left the gymnasium to go to her car.  The Tribunal summarised this evidence as follows:

Mr Jones’ evidence was that he knocked on the driver’s side of the window of the car and showed the Applicant a clipboard.  Attached to this clipboard was Mr Jones’ identification card, and the notification form, which had already been completed.  There is no evidence that the Applicant looked at it.  He then told the Tribunal that he tore off the notification form and attempted to place it, along with the rights booklet, under the windscreen wiper of the Applicant’s car.  Mr Jones stated that he was not successful in doing this, but that he did place the documents on the windscreen of the car.  It was Mr Jones’ evidence that whilst doing this he was yelling his name, that he was from ASDA and that the Applicant had been selected for drug testing.  He stated that he then went to the rear of the vehicle, which was not yet moving, and put his arms out and around the back of the car yelling that the consequences of failing to comply could be serious.  The Applicant then, according to Mr Jones’ evidence, reversed the car causing him to jump away.

Mr Jones stated that Ms Edwards had gone to the passenger side of the car and had been yelling at the Applicant from across the carpark that she had been “notified for drug testing”.  Once the car began to reverse, Mr Jones stated, he moved to the front of the car and put his arms up and the car moved towards him.  He said he jumped out of the way and ran after the car for five to ten metres yelling at the Applicant to “stop, don’t do this, you must do a drug test”.

Mr Jones said the Notification Form from the windscreen was on the ground where the car had originally been.  He told the Tribunal that he picked up the form; entered the time; then removed a copy for himself and left it and the rights booklet on the ground.

The Tribunal notes, and considers it important, that Ms Edwards’ evidence was that she could not hear at least part of what Mr Jones said, over the engine noise of the Applicant’s car.  It is also plausible that the Applicant did not hear Mr Jones either.

According to Ms Edwards’ evidence, she did not identify herself to the Applicant.  She said that when the Applicant started to move towards the exit of the gymnasium, she followed her and by the time she was at the door, Ms Edwards was a few metres behind her.  Ms Edwards stated that the Applicant ran to her car and that she yelled out to the Applicant words to the effect of “Carolyn, you are notified to attend a drug test”.  Ms Edwards repeated the manner and volume in which she alleged she had shouted those words for the benefit of the Tribunal, and the Tribunal notes that her voice, in ordinary conversation, is clear and distinct and that when she shouted it was very loud.

The five athletes who provided evidence all deny having heard any words spoken by Mr Jones or Ms Edwards outside the gym, other than, “Caroline” and “stop”.  None of the athletes, according to their evidence, saw Mr Jones with any papers or saw him placing anything on the windscreen of the car the Applicant got into.

The Applicant emphatically denied hearing any advice of notification; the names of [Ms Edwards and Mr Jones]; seeing the notification form; Mr Jones’ identification card; or the rights booklet.

The Applicant stated she does not know why she denied her identity to Mr Jones when he said her name, except that she had noticed a man she thought might have been following her, in the market the previous day.  She told the Tribunal that Mr Jones was dressed informally and was carrying a shoulder bag.  The Applicant said she did not feel safe and strolled to the door of the gymnasium.  She said she heard her name called and commenced to jog lightly to her car which she had left unlocked.  It was the Applicant’s evidence that Mr Jones and Ms Edwards said “Caroline, stop”, as she had reached just outside the door and that they were running.  She stated that she got in her car and locked the doors.  The Applicant stated that the woman was on her left, outside the door, and the man was on her right.  She told the Tribunal that both were banging on the windows of her car.  The Applicant stated that Mr Jones was banging on the boot as she reversed out of the car park.

The Applicant told the Tribunal that she then drove to [Nadi] and stopped at McDonalds to have a drink.  It was from here that she telephoned Mr Paul Coffa, the operator of the Gymnasium, and at whose residence she was staying.  The Applicant said she had stayed with him once before in 2003, for three to five weeks when training and competing in Fiji.  She said Mr Coffa told her the Police had been to his house in relation to [Ms Edwards’ and Mr Jones’] complaint about her driving.  She then returned to his house.

The Applicant said she attended the Police Station with Mr Coffa at about 10:00 pm and that the Police mentioned drug testing.  She said she wanted to contact [Ms Edwards and Mr Jones] but the Police would not give her their contact details and told her that they would be back at the Police Station at 9:00 am the following day.  The Applicant stated that she returned to the Police Station at 8.45 am the next day and again later that afternoon, but [Ms Edwards and Mr Jones] were not present.

…

The Applicant said that when she left the car park she had a mobile phone with her and Mr Coffa was the first person she spoke to after the incident.  She said she did not contact the Police about what had happened.  The Applicant told the Tribunal that she was simply “spooked” by the incident and was not in fear [for] her life.  She stated that she has been drug tested on about 70 occasions and has never refused a test.

the tribunal’s decision

9                     Having regard to this evidence, the Tribunal held that:

(a)               Ms Pileggi “behaved in an extreme way, made worse perhaps by her being pursued by Mr Jones and Ms Edwards”; and Ms Edwards’ and Mr Jones’ response was “somewhat extreme, although understandable”.

(b)               The evidence of five weightlifters present at the gymnasium at the relevant time was “of limited probative value”.

(c)               It was satisfied that “words to the effect of those attested to by Ms Edwards to have been spoken by her, were indeed spoken by her to the Applicant in the car park”.  That is, the Tribunal accepted Ms Edwards’ evidence that as Ms Pileggi was running to her car, Ms Edwards yelled or shouted out to her words to the effect, “Caroline, you are notified to attend a drug test”.

(d)               There was no evidence that Ms Pileggi was so fearful that she would not have been able to hear what was said to her in the carpark.

(e)               It was satisfied that Mr Jones attempted to show Ms Pileggi the documents as he attested but it was not satisfied “of what Mr Jones said to [Ms Pileggi] whilst she was in the car park” or that Ms Pileggi in fact heard what Mr Jones said to her.  That is, the Tribunal was satisfied that Mr Jones knocked on the driver’s side window and showed Ms Pileggi a clipboard, attached to which was his identification card and a completed notification form; and that he placed the notification form and the rights booklet on the windscreen of the car, after unsuccessfully attempting to place these documents under the windscreen wiper.

10                  In light of these and other findings, the Tribunal stated that the critical question for its determination was “whether the words spoken by Ms Edwards and the showing of the Notification Form and identity card to the Applicant and the placing of the form and the rights booklet on the windscreen, amounted to a request to supply a sample in accordance with the Act and the Regulations [as] far as they apply”.

11                  After referring to Hope v Hope (1854) 43 ER 534 (“Hope v Hope”) and Re Elkateb; Lawindi v Elkateb (2001) 187 ALR 479 (“Re Elkateb”), the Tribunal concluded that:

[T]he Applicant was made aware of the nature of the documents, given the words spoken by Ms Edwards, the Applicant’s experience of some seventy previous testing requests, and the associated procedure.  The Applicant’s evidence was that she was frightened, but she also stated in her evidence that she was not in fear of her life and was simply “spooked”.  I note and accept Ms Edwards’ evidence that her words were shouted, and there is no evidence that the Applicant was so fearful that she would not have been able to hear what was said to her in the car-park.  In view of the above authorities, I consider that service of the notification form and the rights booklet was effected upon the Applicant.

12                  The Tribunal added that:

There is no argument that the notice form does not strictly conform with the requirements of Regulation 17, and I am satisfied that it does conform with those requirements, given that it contained details of the time and place at which the Applicant was to attend to give a sample.  In addition, the rights booklet was also served on the Applicant in compliance with Regulation 37.  I therefore conclude that a request, in accordance with the Regulations, was made.

I also consider that by leaving the car park and not attending as required in the notice given to her, the Applicant failed to comply with the request.

the applicant’s case

13                  Pursuant to s 44 of the AAT Act, an appeal lies to this Court from a decision of the Tribunal on a question of law.  An appeal under s 44 is not, however, an appeal in the strict sense since the appeal lies within the original jurisdiction of the court:  see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 per Bowen CJ and Deane J, cited with approval in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] per Branson and Stone JJ.

14                  In this case, the applicant raises the following question for decision:

Whether on the findings of fact made by the Tribunal the respondent had made a request for a sample which complies with the provisions of regulation 17 of the Australian Sports Drug Agency Regulations 1999 in Sigatoka Fiji on 3 June 2004.

15                  As a Full Court (Neaves, French and Cooper JJ) observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (“Pozzolanic”) at 287:

The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application.  Distinctions between a question of fact and a question of law can be elusive.  The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law.

16                  I am satisfied, however, that the question whether, on the Tribunal’s findings of fact, the respondent made a request, within the meaning of regulation 17 of the Regulations, raises a question of law, or, perhaps more precisely, a question of mixed fact and law.  Accordingly, the matter raised by Ms Pileggi attracts the jurisdiction of this Court:  see Collector of Customs (Tasmania) v Davis (1989) 23 FCR 378 at 381 (“Davis”) per Beaumont J.  It is necessary to decide, as a matter of law, whether the word “request” in regulation 17 is to be given its ordinary meaning or, by virtue of its context, some other meaning.  This is a question of law:  see Pozzolanic at 287.  If the word has its ordinary meaning, then the determination of this meaning is a question of fact:  see Pozzolanic at 287.  If the word has a meaning other than its ordinary meaning, then the determination of this meaning is a question of law:  see Pozzolanic at 287.  Further, whether the facts as found by the Tribunal reasonably admit of different conclusions as to whether a “request” was made within the meaning of regulation 17 is a question of law:  see NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 511-512 per Kitto J; Davis at 381-382 per Beaumont J; and Pozzolanic at 287-288.

the legislative framework

17                  ASDA is established under the Act as a body corporate (ss 6 and 7).  The objects of its establishment are, amongst others, to deter the use of drugs or doping methods in sport and to co-ordinate the development of a consistent and effective national response to matters relating to the use of drugs in sport (s 8).  ASDA’s functions include such functions as are conferred on it by a drug testing scheme (s 9).  ASDA has power “to do all things necessary or convenient to be done for or in connection with the performance of its functions”, including engaging persons to perform services for it (s 10(1)(e)).  The agency’s functions and powers may be performed or exercised within or outside Australia (ss 9(4) and 10(4)).

18                  The Act provides, in s 11(1), that the regulations may formulate drug testing schemes, which are described in s 11(2).  Amongst other things, by virtue of s 11(2)(c), a drug testing scheme is a scheme that “authorises [ASDA] to request a competitor to provide a sample for the purpose of detecting whether or not the competitor has used such a scheduled drug or method”.  Section 17 of the Act provides:

(1)       A drug testing scheme may make provision as to the manner in which a request of the kind mentioned in paragraph 11(2)(c) is to be made.

(2)       A drug testing scheme may provide that strict compliance with those provisions is not required and substantial compliance is sufficient.

(3)       A drug testing scheme may provide that, if the Agency has made reasonable efforts to give a competitor an oral request of the kind referred to in paragraph 11(2)(c), but those efforts have not been successful, the Agency may give such a request by way of written notice to the competitor.

Note:  Section 67A deals with the giving of written notices.

19                  A competitor fails to comply with a request to provide a sample if, and only if, he or she fails to provide a sample as required by the scheme (s 12).  In the statement of competitors’ rights that is to be complied with by the drug testing scheme, a competitor has a right to be notified orally or in writing of the possible consequences of a failure to comply with a request to provide a sample (s 15(2)).  Section 67A of the Act deals with the manner in which written notice is to be given, stating in s 67A(a) that “[a] written notice … to a person … for the purposes of this Act [or] the regulations … may be given … in respect of a notice to a person … by delivering it personally to the person”.

20                  For the purposes of this appeal, it suffices to note that there is a drug testing scheme based on the taking of urine samples (Scheme A; regs 6 and 7 of the Regulations).  This is apparently the applicable scheme in the present case.  Requests for samples are dealt with in Div 2.3 of Pt 2 of the Regulations.  Within this division, regulation 15(1) provides that ASDA “may ask a competitor to give [it] a sample to detect whether the competitor has used a relevant scheduled drug or doping method”.  Regulation 17, which is at the centre of this appeal, relevantly provides that:

(1)       The Agency may ask a competitor for a sample orally or by written notice.

Note:  Section 67A of the Act deals with giving written notices.

(2)       A request for a sample must state:

(a)               the place where the competitor is to give the sample; and

(b)               when the competitor must go to the place for that purpose.

…

(4)       If it would be unreasonable to require the competitor to go to the stated place at the stated time, the Agency may agree with the competitor to collect the sample at a different time and place.

(5)       When asking a competitor for a sample, the Agency must comply with regulation 37.

(6)       If the Agency has made reasonable attempts to locate a competitor, the Agency may ask a person who knows, or is related to, the competitor for help in locating the competitor.

21                  Regulation 37 states:

(1)       As soon as practical after the Agency asks the competitor for the sample, the Agency must give the competitor notice of the possible consequences of failing to comply with a request by the Agency to provide a sample.

(2)       The Agency may give the notice orally or in writing.

Note:  Section 67A of the Act deals with giving written notices.

22                  There are other regulations that deal with the failure to comply with a request to provide a sample, but it is unnecessary to refer to them here.  The term “competitor” is defined in s 2A of the ASDA Act.  It is common ground that Ms Pileggi was a “competitor” within the meaning of the Act and the Regulations: see the Act, s 2A and Acts Interpretation Act 1901 (Cth), s 46.

the parties’ submissions

(a)        The Applicant’s Submissions

23                  Counsel for Ms Pileggi submitted that ASDA had made no request for a sample in accordance with regulation 17 and, in consequence, no request for the purposes of regulation 27 of the Regulations.  Counsel submitted that, at best, Ms Edwards and Mr Jones had made an “incompetent” or “muddled” attempt to make a request.  This was because, first, the supposed request failed to state, as regulation 17 required, the place where and the time when the competitor was to give a sample; and secondly, the possible consequences of failing to comply with the request, as required by regulation 17(5) and regulation 37.  Since there had been no valid request made of Ms Pileggi, then there was no basis for ASDA’s decision, under regulation 27(1), that she had failed to comply with the request without reasonable cause.  Accordingly, regulation 27(2) did not apply and there was no basis for ASDA to enter Ms Pileggi’s name on the Register.

24                  Referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at 388-389 and 390 per McHugh, Gummow, Kirby and Hayne JJ, the applicant submitted that:

[I]t is the purpose of the Act and regulations that an attempt to request a sample which does not comply with the requirements of regulation 17 should be invalid.  This is clear from the language of the Act and regulations, from the subject matter and objects of the Act and regulations, and from the consequences for the parties of holding void such an attempt.

25                  Such a legislative purpose could be discerned, so the applicant argued, by reference to a number of matters.  These matters included s 17(2), which, by its terms, contemplated that there must be strict compliance with a provision as to the manner in which a request to provide a sample was made, unless the drug testing scheme formulated by the Regulations provided to the contrary.  There was, however, no provision stating substantial compliance was sufficient for regulation 17.  On the contrary, according to the applicant, regulations 17(2) and (5) showed “an intention that anything short of strict compliance with the regulation will invalidate a purported request” since these regulations (as well as regulation 37) were expressed in mandatory terms.  Further, the repeated use in the Regulations of the expressions “under the scheme” and “under Regulation 17” emphasised the foundational nature of regulation 17 and the need to comply with it strictly.

26                  Counsel for Ms Pileggi submitted that the object of the Act and the Regulations was “to establish a drug testing regime which has clear procedures and which protects the rights of competitors”.  Counsel drew attention to the fact that a failure to comply with a request under regulation 17 has serious consequences for an athlete and submitted there was “a clear legislative intention that failure to make a request in accordance with the requirements of the scheme established by the regulations invalidates the request.”

27                  At the hearing, counsel for Ms Pileggi maintained that it was not difficult to comply strictly with the requirements of regulation 17.  Compliance did not require undue formality; rather, it required an oral or written request, stating the time and place for the competitor to give the sample.  The applicant contended, however, that this request could not be a composite of an oral statement and a written document.  She submitted that, on the findings of the Tribunal, the words spoken by Ms Edwards to Ms Pileggi did not state the requisite time and place for giving a sample and that the words spoken did not refer to the documents that Mr Jones attempted to show her, in which a time and place were specified.  Counsel for the applicant drew attention to the statement, in the Tribunal’s reasons, that there was no evidence that the applicant looked at the completed notification form that Mr Jones attempted to show her.  This was, the applicant maintained, inconsistent with the Tribunal’s subsequent finding that Ms Pileggi was made aware of the nature of these documents.  Thus, there was no compliance with regulations 17(2) or, for that matter, regulation 17(5).  Counsel for Ms Pileggi maintained that it would have been open to Ms Edwards and Mr Jones to have made a request, which complied with regulation 17, at the police station later on the night of 3 June 2004.

28                  Counsel for Ms Pileggi submitted that the Tribunal ought not to have considered a number of matters in reaching its decision, including the alleged evasive tactics of the applicant, and the applicant’s experience of some 70 previous testing requests and the associated procedure.  Relying on the decision in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 204 ALR 80 at 87-89 per Gray, Whitlam and Mansfield JJ, counsel submitted that the applicant’s conduct was irrelevant and that the only question was whether Ms Edwards and Mr Jones had made a request in conformity with regulation 17.  The applicant further contended that the Tribunal’s reliance on such authorities as Hope v Hope and Re Elkateb was misconceived, either because s 67A of the Act had no application in the present circumstance, or these authorities had no bearing on s 67A.  Counsel for Ms Pileggi also contended that the Tribunal fell into error in having regard to the applicant’s previous experience of drug testing requests in support of its finding that she was aware of the nature of the documents that Mr Jones sought to show her.

(b)        The Respondent’s Submissions

29                  In written and oral submissions, counsel for the respondent submitted that the requirements of regulation 17 had been met, because a request under regulation 17 could be partly oral and partly in writing.  The notification form that Mr Jones held on a clipboard on the driver’s side of the window of the car and later placed on the windscreen of her car supplemented the oral statement of Ms Edwards.  This document specified the place where and the time when the competitor was to give the sample.  Regulation 17 did not include an additional requirement that the competitor read or understand the request.

30                  Referring to Project Blue Sky at 384, 388-389 and JOL v State of New South Wales (1988) 45 NSWLR 283 at 287-290, the respondent submitted, in the alternative, that if ASDA had not complied strictly with the requirements in regulation 17(2), the failure did not invalidate the giving of the request.  The requirements of regulation 17(2) were, so counsel submitted, intended to ensure fairness to the athlete and to ensure that he or she was in a position to be able to know what was required for compliance with the request for a sample.  Counsel submitted that it cannot have been intended that a failure to comply strictly with regulation 17(2) would invalidate the request in the circumstances of the case.  Counsel maintained that the construction for which the applicant contended would defeat the purposes of the testing regime established under the Act and the Regulations because compliance with a request pursuant to regulation 17 could be evaded by athletes effectively “block[ing] their ears”.

31                  In written submissions, the respondent addressed a number of arguments raised before the Tribunal.  The respondent noted that counsel for Ms Pileggi had conceded before the Tribunal that the notification form held up by Mr Jones did not raise any issue of whether substantial compliance with regulation 17(2) was sufficient for ASDA to discharge its obligations under the Act and Regulations.  This concession was reflected in the Tribunal’s statement that there was “no argument” that the form did not “strictly comply” with regulation 17.  According to the respondent, counsel for Ms Pileggi had contended that, as a matter of fact, Mr Jones’ evidence about the notification form should be rejected and, if accepted, the Tribunal ought to find that Ms Pileggi did not understand the content of the notification form and the time and place for providing the sample.  The respondent submitted that the applicant had failed in these contentions, since the Tribunal accepted Mr Jones’ evidence and found that Ms Pileggi had been made aware of the nature of the document in any event.

32                  Counsel for the respondent submitted that, if regulation 17(2) required that a competitor have some understanding of the notice, then the cases on personal service were relevant.  The respondent went on to say that, in this context, the Tribunal made conclusive findings of fact and, therefore, even on this analysis, the requirements of regulation 17(2) were satisfied.

33                  Finally, referring to Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 at 534, Grozier v Tate (1947) 64 WN (NSW) 1 at 3 and Thompson v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72 at 80-81, the respondent submitted that the legal maxim that “no one can take advantage of his or her own wrong” assisted in the proper construction of regulation 17(2).  Counsel for the respondent referred to the applicant’s departure from the carpark, and the circumstances surrounding it, contending that this was sufficient to attract the application of the maxim to the construction of the regulations.

consideration

34                  Regulation 27 has no operation if there has been no request under regulation 17.  The Act makes it clear, moreover, that a competitor will fail to comply with a request “if, and only if” he or she fails to provide a sample “as required by the scheme” (s 12(a)).  Regulation 17, which prescribes the manner in which ASDA may request a sample from a competitor, is part of a drug-testing scheme that has been formulated as contemplated by s 11 of the Act.  In giving effect to s 17(1) of the Act, regulation 17 makes provision for the manner in which a request of the kind contemplated in s 11(2)(c) is to be made.  The relevant drug-testing scheme does not, however, provide, as s 17(2) would permit, that merely substantial compliance with the requisite manner for making a request is necessary.  Nor does this scheme contain any provision of the kind contemplated in s 17(3).

35                  The first question that arises is whether, in the circumstances found by the Tribunal, a “request” for a sample under regulation 17 was made.  The word “request” is not defined in the Act or the Regulations.  The use of the word “request” in ss 11(2)(c) and 17(1) and elsewhere in the Act makes it plain that the legislature intended that the word “request” be given its ordinary meaning, namely, “the act of asking for something to be given, or done”:  see the Macquarie Dictionary.  This is plainly a case in which an expression used in an Act has the same meaning when used in regulations made under it:  see the Acts Interpretation Act 1901 (Cth), s 46.  That the word “request” is to be understood in its ordinary sense is confirmed by the terms of regulation 17(1), which provide that ASDA “may ask a competitor for a sample”.  (Emphasis added)

36                  Regulation 17(1) expressly provides that this asking may be done “orally or by written notice”.  Whether or not this asking has been done is, plainly enough, a question of fact, which is to be determined having regard to the circumstances of the case.  Parliament has not stipulated that any particular linguistic formula is required, and neither do the Regulations.  The terms of ss 11(2)(c) and 17 and regulation 17 are general and non-technical.  The language of the provisions therefore does not call for an overly technical or restrictive approach.  In determining whether a request has been made, it is proper to consider the words used in the context and circumstances in which they were used, including the conduct of the person or persons doing the asking.  There is nothing in the Act or Regulations that requires otherwise.

37                  The argument for the applicant invited the court to separate the “asking” into verbal and non-verbal components and into oral and written parts.  The consequence of this approach is that circumstances, which when viewed as a whole would constitute a clear act of asking, are not to be so regarded, because, divided in this way, no one part can constitute an act of asking.  A literal reading of regulation 17 might provide some support for the applicant’s contention.  Thus, regulation 17(1) provides that ADSA may ask a competitor for a sample “orally or by written notice”.  Counsel for the applicant offered no other justification for this approach.  In contrast, a purposive approach to interpretation would support reading the word “and” for the word “or”; and, having regard to the matters mentioned in pars [43] and [44] below and ss 15AA and 46 of the Acts Interpretation Act 1901 (Cth), this approach is to be preferred:  see Smith v Papamihail (1998) 88 FCR 80, at 88-89 per Carr J, followed in Re Peat Resources of Australia Pty Ltd; ex parte Pollock [2004] WASCA 122 at [23] per Malcolm CJ, see also [98] per Steytler J and [115] per McKechnie J; and Pearce and Geddes, Statutory Interpretation in Australia (5^th ed, 2001), par 2.25.  A request under regulation 17 will be made when, viewed objectively and having regard to the attendant circumstances, the words used clearly convey to the competitor that he or she is being asked to provide a sample at a particular place and time.  Regulation 17(2) makes express provision for this statement of place and time.

38                  An analogy may be drawn with a police officer “requiring” the furnishing of a breath sample in the context of drink driving offences.  The test whether a police officer has so “required” is “whether a defendant was given reasonably sufficient information to know precisely what was required of him and why”:  see Director of Public of Prosecutions v Ryan (Supreme Court of Victoria, Mandie J, 13 July 1994).  What is required in a request under regulation 17 is that a competitor is clearly informed that he or she is being asked, or required, to provide a sample for drug testing at a particular place and time.

39                  There is no question in this case that the applicant was clearly informed that she was required to provide a sample for drug testing.  The Tribunal found that Ms Edwards notified the applicant that she was required to attend for a drug test.  The critical question is whether the applicant was also clearly informed as to the place and time for this testing, having regard to the circumstances in which the request was made, including the conduct of those making the request.

40                  As already noted, by virtue of regulation 17(2), a request under regulation 17 must state the place and time for providing a sample.  The applicant’s submission that it did not do so was based on the proposition, which I have rejected, that the request was to be divided into its oral and written components.  If, as the Tribunal held, the request encompassed the notification form, which plainly stated the place and time, then this argument loses its force.

41                  As the respondent noted in oral argument, the Tribunal found that the notification form itself complied with regulation 17.  As in the case of the word “request”, the word “state” is used in regulation 17 in its ordinary sense.  The Macquarie Dictionary relevantly defines the word “state” as “to declare definitely or specifically”, “to set forth formally in speech or writing”, and “to set forth in proper or definitive form”.  The notification form set forth specifically the time and place at which the competitor was to provide the requested sample.

42                  Bearing in mind the general and non-technical language of regulation 17, I doubt that it was intended that there would be no request under regulation 17 in the circumstance where a duly authorised official informs a competitor that he or she is required for a drug test, whilst handing to him or her a notification form clearly setting out the time and place for the test.  There can be no relevant difference between this situation and the present one, simply because there were two officers making the request.

43                  Nor is the situation relevantly different if the competitor, when handed the form, then by his or her conduct refuses to accept the form.  Viewed objectively, the competitor has been asked to take a drug test and has been informed of the place and time of that test.  There is no requirement in the Act or the Regulations that the competitor has subjective knowledge of the time and place of the test.  Rather, it is sufficient that the request includes a statement of the time and place.  Regulation 17(2) is designed to ensure that the competitor is given sufficient information to be able to know what is being requested of him or her; but whether he or she in fact has that knowledge is not material to the operation of the regulation.  It is possible, of course, that, in the circumstances of a particular case, the competitor’s state of mind may be material in, for example, a decision under regulation 27.

44                  The Tribunal found that the notification form, which included the place and time for testing, was shown to the applicant and placed on her windscreen.  The Tribunal also found that the applicant was “made aware of the nature of the documents”.  It was clearly open to the Tribunal to be satisfied, and it was so satisfied, that the combination of the words and acts of Ms Edwards and Mr Jones amounted to a request for the purposes of regulation 17.  I discern no error of law in this approach.

45                  I interpolate here that, in the context of regulation 17(2), there was no occasion to refer to the authorities on service, such as Hope v Hope and Re Elkateb.  This is because no question analogous to a question of service arises in relation to this particular provision.  Regulation 17(2) only requires that a request state a particular place and time for the drug test.  The Tribunal’s reference to these authorities in this connection was inapposite.  In view of the foregoing, however, even if the Tribunal’s reasoning was in error in this regard, any error on the Tribunal’s part was not material in the sense that it did not affect the correctness of the decision.  The Tribunal’s findings of fact show that its decision was correct, notwithstanding any such error:  compare Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 per Sackville J and the cases there cited; also, in a different context, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 511 (Gleeson CJ), 528 (McHugh and Gummow JJ), 531 (Hayne J) and 539-540 (Callinan J).

46                  The relevance of the cases on service becomes apparent when one turns to the provisions of s 67A of the Act.  Regulation 17(5) provides that, when asking a competitor for a sample, ASDA must comply with regulation 37.  Regulation 37(1) provides that, as soon as reasonably practicable after requesting a sample, ASDA must give the competitor notice of the possible consequences of failing to comply with the request.  Regulation 37(2) provides that such a notice may be given orally or in writing.  The Tribunal found that there was written notice in the form of a rights booklet.

47                  Section 67A of the Act deals with the manner of giving written notices.  Having regard to this provision, it was not, so it seems to me, inappropriate for the Tribunal to have regard to the authorities on service in determining whether the rights booklet had been delivered personally in conformity with s 67A(a)(i).

48                  Section 67A(a)(i) of the Act provides that a notice may be “given” to a person by “delivering it personally” to the person.  Section 67A does not use the words “serve” or “service”.  The Tribunal’s statement that the rights booklet “ was served on the Applicant in compliance with Regulation 37” was, therefore, inapposite.  The High Court of Australia observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, citing Pozzolanic at 287, however, that the reasons for an administrative decision under review “ought not to be construed minutely and finally with an eye keenly attuned to the perception of error”.  The question was whether the rights booklet had been “given” to the competitor by being delivered personally in conformity with s 67A(a)(i).  The Tribunal considered the case law on an analogous question, namely, what was required for personal “service”.  On a fair reading of its reasons, the Tribunal found, as a matter of fact, that the requirements of regulation 37 and, thus, regulation 17(5) had been satisfied.  On the material before it and on the facts as it found them, it was open to the Tribunal to be so satisfied.  I am of the view that no relevant error has been shown in this finding.  The only mistake made by the Tribunal was a linguistic one.

49                  Accordingly, it was open to Tribunal to conclude that a request was made in accordance with regulation 17.  It is unnecessary to consider certain other submissions made by the parties, including matters of strict or substantial compliance and the application of the maxim that no one can take advantage of his or her own wrong.

50                  For the reasons stated, I would dismiss the application with costs.

Associate:

Dated:              22 July 2004