Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – judicial review – decisions under administrative legal aid scheme relating to public interest and test cases – scheme non-statutory – decisions under the Scheme not decisions under any enactment – judicial review unavailable under ADJR Act – no public duty attracting the grant of mandamus - question of review of executive power not canvassed – application dismissed – poor quality of application and submissions – solicitor to show cause why costs should not be awarded personally against him.

Administrative Appeals Tribunal Act 1975 (Cth) s 69

Appropriation Act (No 1) 2003-2004 (Cth)

Appropriation Act (No 1) 2004-2005 (Cth)

Acts Interpretation Act 1901 (Cth) s 15AB

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6, s 7(1), s 3

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia RulesO 52 r 2(2), O 54 r 2A(1) and (2)

Combet v Commonwealth of Australia [2005] HCA 61 cited

Evans v Friemann (1981) 35 ALR 428 cited

Chittick v Ackland (1984) 53 ALR 143 cited

Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565 cited

Barnett v Minister for Housing (1991) 31 FCR 400 cited

EX CHRISTMAS ISLANDERS ASSOCIATION INC, THE ESTATE OF AIN BIN MARSAH, THE ESTATE OF BADRON BIN RIDWEE, NOOLIYAH BINTE SALLEH & MENG KOK HU v THE ATTORNEY-GENERAL FOR THE COMMONWEALTH

WAD 36 OF 2005

FRENCH J

21 DECEMBER 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD36 OF 2005

BETWEEN:	EX-CHRISTMAS ISLANDERS ASSOCIATION INC, THE ESTATE OF AIN BIN MARSAH, THE ESTATE OF BADRON BIN RIDWEE, NOOLIYAH BINTE SALLEH & MENG KOK HU APPLICANTS
AND:	ATTORNEY-GENERAL'S DEPARTMENT (COMMONWEALTH) [LEGAL ASSISTANCE DIVISION] RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	21 DECEMBER 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The second and third named ‘applicants’ not being legal persons, will be removed from the heading to these proceedings.

2. The Attorney-General for the Commonwealth is named as respondent in lieu of the Attorney-General’s Department.

3. The application is dismissed.

4. The solicitors for the applicants are to show cause by written submissions filed on or before 28 February 2006 why they should not pay the respondent’s costs of the application.

5. The respondent may file written submissions on the question of costs by 28 March 2006.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD36 OF 2005

BETWEEN:

EX-CHRISTMAS ISLANDERS ASSOCIATION INC,

THE ESTATE OF AIN BIN MARSAH,

THE ESTATE OF BADRON BIN RIDWEE,

NOOLIYAH BINTE SALLEH & MENG KOK HU

APPLICANTS

AND:

ATTORNEY-GENERAL'S DEPARTMENT (COMMONWEALTH)

[LEGAL ASSISTANCE DIVISION]

RESPONDENT

JUDGE:	FRENCH J
DATE:	21 DECEMBER 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 Four former residents of Christmas Island commenced proceedings in the Supreme Court of Western Australia in 1996 against the Commonwealth of Australia (the Commonwealth). In those proceedings they alleged that the Commonwealth had engaged in unconscionable conduct and breached its fiduciary duty to them in connection with their resettlement from Christmas Island to mainland Australia.

2 The former residents and the Ex-Christmas Islanders Association Inc (the Association), of which they are members, sought substantial funding by way of legal assistance in connection with the proceedings in the Supreme Court. They sought that funding from the Attorney-General’s Department (the Department) under a Public Interest and Test Cases Scheme (the Scheme) administered by the Department. Funding of over $500,000 per annum was sought in connection with the Supreme Court proceedings. The applicants’ solicitors estimated the overall legal costs of the proceedings to be between $2 million and $4 million. The damages claimed on behalf of the ex-residents of Christmas Island were said to be as high as $500 million.

3 The former residents of Christmas Island and their Association have now brought judicial review proceedings in this Court on the basis of a decision of the Department to give only limited funding and to refuse to extend assistance at the present time.

4 For reasons which appear below the application will be dismissed. The administration of the Scheme is not amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as it is not done pursuant to any statute or delegated legislation. Mandamus is not available because there is no relevant public legal duty.

5 The application not only lacked merit but it appeared, in preparation, to have fallen short of the minimum standards of professional competence that should be expected in an application in this Court where the applicant is represented by a legal practitioner. The submissions also disclose a failure to give adequate consideration to key legal issues such as the non-statutory character of the Scheme.

6 The application will be dismissed and the solicitors for the applicant required to show cause why they should not personally pay the respondent’s costs of the action.

Factual and Procedural Background

7 The Association is apparently incorporated under the Associations Incorporation Act 1987 (WA) although there is no direct evidence of that fact before the Court. In 1996, four members of the Association commenced proceedings in the Supreme Court of Western Australia in Action Number CIV 2057 of 1996 against the Commonwealth. They were Ain Bin Marsah, Badron Bin Ridwee, Nooliyah Binte Salleh and Meng Kok Hu. The first two are now deceased. The proceedings do not appear to have been brought in the name of their personal representatives. It is not clear therefore what, if any, authority the solicitor has to act on the behalf of those representatives. The ‘Estate of …’ is not a legal person. The second and third named ‘applicants’, not being legal persons, shall be removed from the heading of this proceeding.

8 The nature of the proceedings in the Supreme Court was outlined by Master Sanderson in an interlocutory judgment delivered on 23 February 1999 in which he allowed an amended statement of claim to be filed. The statement of claim pleaded, uncontroversially, the existence of Christmas Island (the Island), which is an Australian external territory located in the Indian Ocean off the north-west coast of Western Australia. None of the four plaintiffs was born on the Island but all were permanent residents for various periods up to 1979. The Island became a Territory of the Commonwealth in 1958, having formerly been part of the British colony of Singapore.

9 The plaintiffs alleged that at all material times the sole industry on the Island was the mining of phosphate for sale and export. Between December 1948 and July 1982 the Commonwealth and the Government of New Zealand controlled the mining and for that purpose engaged the British Phosphate Commissioners (the Commissioners). It was also alleged that at all material times the Commonwealth sought to obtain, accepted and retained sovereignty and control over the Island for the primary purpose of exploiting its phosphate resources so as to secure for Australian farmers a reliable supply of phosphate at the lowest possible cost.

10 The Master’s decision identified paragraphs 16 to 23 of the statement of claim as crucial to the plaintiffs’ case. There was a reference in the pleading as set out to the ‘Agent’ which was not defined in the reasons. Presumably that was a reference to the Commissioners.

11 The plaintiffs pleaded that the Commissioners and the Commonwealth were the only employers on the Island. Each of the plaintiffs was employed by them for different periods of some years between 1952 and 1979. They all had a reasonable expectation that they and their descendents would be entitled to reside permanently on the Island. That expectation was said to have been created and encouraged by the conduct of the Commonwealth.

12 The plaintiffs said further, that to the knowledge of the Commonwealth, they relied to their detriment upon their reasonable expectations in that they all settled on the Island with their families with the intention of making it their permanent home. They thereby placed themselves at the risk of decisions affecting their welfare made by the Commissioners or the Commonwealth in their capacities as employers and also, in the case of the Commonwealth, as the proprietor, governor and administrator of the Island. Each of the plaintiffs was said to have deprived himself or herself of the opportunity to invest outside the Island for his or her future security or that of his or her family. They developed community and social attachments to the Island and its inhabitants and discontinued attachments to their country of ethnic origin. They did not develop the skills necessary for working and living outside the Island. Particulars of the alleged reasonable expectation were set out in a schedule to the statement of claim. Particulars of the alleged knowledge of the Commonwealth were referred to in the statement of claim and also set out in a schedule to it.

13 The statement of claim pleaded various powers which it was said the Commonwealth had on the Island. These included the power to determine whether or not any or all of the plaintiffs would be employed on the Island and the power to dictate the terms of such employment. The Commonwealth could also determine what, if any, accommodation, education, health services, police, judicial and administration services would be provided on the Island. It could cause phosphate mining on the Island to cease. It could also determine whether any, and if so what, transport of food and other supplies to and from the island would be provided.

14 It was alleged, in par 21 of the statement of claim, that the plaintiffs were especially vulnerable to any exercise of the Commonwealth’s powers. This derived from the absence of any prospective employment except by the Commissioners or the Commonwealth, the lack of any access to legal advice, the absence of any political representation for the plaintiffs in Australia or its territories and their dependency in various ways upon the Commonwealth and the Commissioners in terms of accommodation and community services.

15 The statement of claim alleged that in 1958 the Commonwealth had entered into an agreement with the Government of New Zealand to establish a fund to provide resettlement assistance to permanent residents of the Island upon cessation of phosphate mining on the basis that the Commonwealth had a duty to provide for those persons who would be resident on the Island in that event. The Commonwealth Parliament then established a system of reporting to Parliament on all aspects of the administration of the Island to ensure that each member of the Parliament would recognise a duty to its inhabitants. Reference was made to the Commonwealth’s assumption of sovereignty over the Island, its payments to some permanent residents to assist them in resettlement and its public statements to the effect that it had a duty to protect the interests of the permanent residents.

16 In par 23 of the statement of claim the plaintiffs claimed to have been at a special disadvantage in their dealings with the Commonwealth and the Commissioners. The Commonwealth owed a duty to each of them to resettle them on just terms in the event that it decided that it was necessary or desirable that permanent residents of the Island should no longer remain there.

17 The plaintiffs alleged, in par 24 of the statement of claim, that the Commonwealth took unconscientious advantage of each of them in pursuit of its primary purpose which was to exploit phosphate resources so as to secure a reliable supply of phosphate at the lowest possible cost. This was said to have been effected by paying the plaintiffs, all of whom were of Asian origin, less than European workers would have been paid and by providing them with inferior services.

18 In 1972 the Commonwealth decided there should no longer be permanent residents on the Island and made a number of public statements to that effect. The plaintiffs were resettled. As a result of the resettlement each of them claimed to have suffered loss and damage. In breach of its duty to the plaintiffs it was said that the Commonwealth resettled them on terms that were not just. None of them received any payment, benefit or other assistance in connection with the resettlement. Resettlement on just terms required that each would be paid a substantial sum by way of compensation and be assisted in acquiring the relevant necessary skills. The plaintiffs claimed that they had suffered financial and emotional loss.

19 The Master noted that the action was brought on two bases. First, there was a claim that the Commonwealth had taken unconscientious advantage of the plaintiffs. This allegedly gave rise to financial loss. The other basis was breach of fiduciary duty. This was directed only to the claim that the Commonwealth owed the plaintiffs a duty to resettle them on just terms and that it did not do so.

20 The Master found that the pleading did allege facts which could give rise to a finding that the plaintiffs were under a special disadvantage. He made a similar finding in relation to the alleged knowledge of the Commonwealth. The plaintiffs conceded that there was no instance in which a finding of unconscionable conduct had led to damages or equitable compensation being paid to a party. The Master however found that there appeared to be no reason in principle why such a remedy would not be available. It was at least arguable that the plaintiffs would, if successful, be entitled to equitable compensation. In his view there was no basis for striking out that part of the plaintiffs’ claim. In connection with the claim for breach of fiduciary duty, the Master also found an arguable case.

21 The Master said (at 22):

‘In all the circumstances, I am satisfied that the minute of amended statement of claim ought to stand as the statement of claim. The only reservation I have is with respect to the plea that the fiduciary duty to settle on just terms arose once the Commonwealth had decided to re-settle the plaintiffs. In my view, that is a matter which should be rectified. Subject to that rectification in the proposed amended statement of claim, I would allow it to be filed in its present form.’

22 At some time prior to June 2001 the applicants raised with the Australian Government Solicitor’s office the possibility of funding for legal assistance from the Department in the prosecution of their claim. In a letter to the Department in Canberra on 28 June 2001, which referred to previous correspondence, they said:

‘The above clients, association and our firm require legal funding to enable the resolution of the action through the Court and note that the Commonwealth has not yet provided any funding to the plaintiffs or the association. The matters are of substantive public importance and of major public interest and the action may set legal precedents in Australia. The above matters are test cases for equitable compensation resulting from the unconscionable resettlement of Asian long term residents from Christmas Island.’

The solicitors also requested that their clients be provided with funding for the conduct of necessary archive inspections and Freedom of Information Act 1982 (Cth) applications.

23 On 16 August 2001 the solicitors wrote again to the Department requesting an ‘urgent response’ and threatening to apply to the Administrative Appeals Tribunal (the Tribunal) against the Department seeking orders for such funding. A further letter dated 30 August 2001 was sent requesting application forms for legal assistance. The letter stated an intention to make an application for funding in the sum of $560,000 per annum in relation to the pending legal action in the WA Supreme Court and an application in the WA Registry of the Tribunal.

24 On 4 September 2001 the Department responded. The reply, which was signed by a Senior Legal Officer with the Legal Assistance Branch of the Department, stated that the nature of the proceedings for which assistance was sought was not clear. Nor was it clear whether there were two proceedings for which their clients sought assistance or whether they sought assistance in respect of both proceedings and in which forum. Copies of application forms for legal aid under s 69 of the Administrative Appeals Tribunal Act 1975 (Cth) and under the Scheme were enclosed. Guidelines for both schemes were attached.

25 A substantial delay ensued. On 29 July 2002 the solicitors for the applicants wrote to the Attorney-General’s Department enclosing:

1. Three signed application forms.

2. A copy of the pleadings in the Supreme Court case.

3. A copy of the decision of Master Sanderson.

4. Legal opinions prepared by Mr Colvin QC and other barristers.

In the covering letter the solicitors said:

‘In our letter to you of August 2001, we provided a cost schedule, a copy of which we again enclose, referring to a sum of $560,000 per annum of legal costs being required to fund the action. The action is likely to proceed for another 5 years in pre-trial procedure with a 3-5 month trial hearing in the WA Supreme Court in 2006. It is listed in the Long Causes List of the WA Supreme Court as acknowledged by the Commonwealth and the Supreme Court of the uniqueness of the action and its importance.’ (sic)

26 In the application form in answer to the question ‘How much do you think it will cost to resolve the case?’, the solicitors stated a range of $2 million to $4 million. They also asserted that they had already incurred costs of $1,500,000 including $800,000 ‘deferred fees’. There were statements of the means of the applicants.

27 On 18 February 2003 the Legal Assistance Branch of the Department responded after a reminder letter of 6 February 2003 from the solicitors. The writer said that advice had been sought on the questions whether the proceedings arose under a law of the Commonwealth and whether they had any prospects of success.

28 On 20 May 2003 the Department received advice from Mr C Horan of counsel. Mr Horan’s conclusions were that the proceedings brought by the applicants against the Commonwealth involved questions arising under a law of the Commonwealth within the meaning of Guidelines governing the provision of assistance under the Scheme. Mr Horan also advised that while the applicants’ prospects of success ‘may not be high’, their proceedings could not be described as ‘fanciful’ or as raising only ‘speculative arguments’.

29 On 12 August 2003 the Principal Legal Officer at the Legal Assistance Branch of the Department, Ms Bush, wrote to the solicitors for the applicants refusing the application. Reasons for the decision were contained in a ‘Decision Note’, a copy of which was attached to the letter. The solicitors were advised that they had the right to have the decision reviewed by an officer who had not been involved in making it.

30 The reasons for decision were in the form of a minute and a recommendation to the decision-maker which the decision-maker approved. I take this as representing the decision-maker’s reasons for decision. They set out the background to the application, referred to counsels’ opinions submitted by the solicitors for the applicants and Mr Horan’s opinion which had been sought by the Department. The Guidelines were cited and reference made to the following factors set out in the Guidelines as matters to be considered:

‘(a) hardship;

(b) prospects of success;

(d) the benefit to the public or any section of the public;

(e) the availability of funds generally and specifically of legal aid from a legal aid commission.’

The decision-maker stated:

‘The guidelines specify that the decision to grant or refuse assistance should be based on a global assessment of all the factors giving appropriate weight to the various considerations according to the circumstances of the case.’

31 Under the heading ‘Hardship’ it was said that if the estimate of costs from the solicitors were accurate it was unlikely that the applicants would be able to pay those costs over any period of time. There was however insufficient information about the financial circumstances of three of the four applicants and the Association to allow a final decision to be made about whether they would suffer hardship if assistance were not provided. However, this aspect became academic in the light of the subsequent reasoning.

32 The decision-maker accepted that there was insufficient information to form a view as to whether there were good or even reasonable prospects of success. The applicants’ case was not merely fanciful and raised more than speculative arguments. The prospects of success could not be discounted altogether. As to the benefit to the applicants, it was accepted that, if successful, they would be entitled to receive a substantial benefit by way of compensation.

33 On the availability of funds from other sources, the decision-maker said that insufficient information had been provided about the ability of the Association to raise funds for the proceedings through subscriptions or donations from members. It appeared to have been able to provide considerable funding for the proceedings to that date. Subscriptions and donations could be a source of funds available for further funding.

34 In connection with public benefit, it was said that the case was unlikely to establish principles of law of benefit to the public beyond the applicants in the proceedings and perhaps some other members of the Association. It was accepted that the rights and duties to be determined in the proceedings owed their existence to or depended for their enforcement upon federal law.

35 As to the availability of funds, the decision-maker referred to 21 schemes, then existence, for the provision of financial assistance by the Commonwealth. The funding available in the 2003 financial year for these schemes was approximately $1.2 million. The scheme under which the application had been made was the only scheme whose Guidelines specified that funding could be declined if insufficient funds were available. The funding provided for the 21 schemes had been fully utilised in recent financial years. It was anticipated that the available funds would be utilised again in 2003. If the applicants’ solicitors’ estimate of the costs of the proceedings were accurate, there would be insufficient funding available to provide assistance.

36 The decision-maker refused the application on the following bases:

‘(1) while the estimated costs of proceedings is so substantial that few individuals would be able to meet the cost without incurring significant hardship; insufficient information is provided about each applicant and the ability of the association to fund proceedings through contributions from its substantial membership to be satisfied that the applicants would suffer hardship if financial assistance was not approved;

(2) Whilst the matter has been expressed as not being fanciful, there hasn’t been opinion expressed by any of the legal counsels to suggest that the prospects of success are such that it would be cost effective to utilise such a large amount of public money towards such a proceeding;

(3) There are insufficient funds to provide assistance of the order estimated to be required by the applicants’ solicitors.’

37 On 4 September 2003 the solicitors for the applicants requested a review of the decision of 10 August 2003 refusing legal assistance. On 2 December 2003 a Review Officer approved a grant of financial assistance in the sum of $60,000 in connection with the inspection of documents in the Supreme Court proceedings. The sum of $58,000 was approved for the inspection of 861,000 pages of the Commonwealth’s documents held at the National Archives. A sum of $2,000 was approved to enable the applicants to get an opinion from counsel about prospects of success in light of the contents of the documents inspected at the National Archives. The grant so approved was expressed to be subject to the applicantsproviding verification of their current financial circumstances and those of the Association and the Review Officer being satisfied that they met the broad test of hardship.

38 On 4 August 2004 the solicitors for the applicants wrote again to the Department requesting a special grant of $153,298 in connection with a three day mediation conference in the Supreme Court proceedings. The solicitors reiterated that the applicants and the Association members were ‘looking at claims of $500 million …’.

39 On 30 November 2004 the solicitors again wrote to the Department requesting additional funding for the action and a review of the decision to grant funding of only $60,000. They enclosed with their letter additional papers requested by the Department including verification of the current financial circumstances of the applicants and the Association. The letter also enclosed an opinion prepared by the applicants’ solicitor Mr Mijatovic himself and dated 20 May 2004 concerning the prospects of success of the action in the Supreme Court. He evidently characterised those prospects as ‘very good’.

40 On 2 December 2004 the Department advised that no further internal review rights were available. However, the question of an extension of the grant of assistance would be considered upon receipt of the documents which were referred to in but not attached to the facsimile of 30 November 2004.

41 On 8 December 2004 the solicitors wrote to the Department contesting the proposition that a review of the entire test case application had been conducted. The Department, they said, had never made any determination upon review that the rejected portion of the application ought to be rejected or that the previous decision as to the balance of the application should stand.

42 On 25 January 2005 the Department wrote to the solicitors pointing out that the grant which had been approved on 2 December 2003 was conditional upon verification of the current financial circumstances of each of the applicants and the Association. It was also conditional upon the delegate being satisfied that they met the broad test of hardship. The Department requested that the Association provide its audited financial statement as verification of its financial circumstances. An additional condition had been imposed in light of recent information about contributions from members of the Association. Further information was required namely:

1. The amount of funding to date that had been provided by the Association or any other source towards the legal and other costs of the matter.

2. Details of the manner in which that funding had been, and would be, expended.

The Department said that a request for an extension of the grant would not be considered until the conditions set out in relation to the original grant were met. It was a further condition that the results of the inspection of documents at the National Archives would have been provided and that a legal opinion be sought from counsel detailing the legal basis upon which the proceedings are brought and providing advice on prospects of success. The letter noted that three further applications for financial assistance had been submitted on 30 November 2004, none of which had included current information about the financial circumstances of any of the three new applicants, any of the original applicants in the applications dated 27 August 2002 or of the Association. Two applications contained verification of outstanding financial details while one contained no verification of financial circumstances at all.

43 The Department said in the letter of 25 January 2005 that it offered a single internal review in relation to an application for financial assistance. The review decision of 2 December 2003 had itself offered a further internal review. However no further such review would be conducted in relation to that decision because the request for review was not received within a reasonable period of time. The Department did not receive the request for review until two days short of one year after the decision was made.

44 As to the extension for the mediation conference, it was stated, inter alia:

‘Your application for an extension of the grant for the mediation conference and other work cannot be considered until the information detailed above is received. In addition, it is noted that your letter dated 20 May 2004 to the Ex Christmas Islanders Association states, at paragraph 8, that the Defendant is ordered to pay the plaintiffs’ costs of the defendant’s application dated 11 March 2004. Please give further details in relation to this.’

45 On 22 February 2005 the applicants filed an application for judicial review naming as the respondent ‘Attorney-General’s Department (Commonwealth) [Legal Assistance Division]’. Is so doing they did not name a respondent with any legal personality. The Department is not a legal person. However, in the course of the hearing it was agreed that the Attorney-General of the Commonwealth should be substituted as the respondent. As already noted, two of the applicants were named as ‘The Estate of …’ the two deceased persons. Such a designation does not name any person or their legal representatives. For that reason I will order the removal of those two named from the proceedings.

46 The application sought orders of review in respect of a number of decisions, failures to make decisions and conduct. It sought an order that the application for legal assistance be granted. Particulars of the conduct were set out in terms reflecting the grounds of judicial review under the Act. On 29 March 2005 a minute of a proposed amended application was filed. The essential change effected by that amendment was to invoke reliance upon s 39B of the Judiciary Act 1903 (Cth) and to claim mandamus in addition to remedies under the provisions of the ADJR Act. As appears below the drafting of the amended application reflected some misunderstanding of the ADJR Act and of s 39B of the Judiciary Act.

Correspondence Following the Lodgment of the Application for Judicial Review

47 A number of letters were exchanged between the solicitors for the applicants and the Department after the commencement of these proceedings. These were exhibited to affidavits filed by both sides. They help to complete the picture of the dispute in this case.

48 On 6 April 2005 the solicitors for the applicants wrote to the Department stating that they had yet to receive a reply or payment of an account which they had sent on 8 December 2004. They enclosed a copy of that account. They said:

‘Legal Assistance was approved by your office on 12 December 2003 for the sum of $60,000.00 and in our letter to you dated 8 December 2003 we requested extensions thereof.

We have yet to be paid the account enclosed or any portion thereof. Please arrange for payment of the account or that has been approved and the balance is subject to further review or extensions of the grant. (sic) We look forward to payment of our account.’

49 The solicitors wrote again on 12 April 2005 enclosing documents comprising, inter alia, bank statements of certain of the applicants, an account of $610,330 from a firm of solicitors Bannerman Ziatas & Russell dated 26 October 1998 and two affidavits sworn by Mr Mijatovic. The letter stated that membership contributions provided to the applicants’ solicitors for legal fees had been exceeded by current unpaid legal fees and work in progress by over $1 million. The applicants were said to have no capacity to pay costs currently owed or in future in funding the Supreme Court test case action. The Association funds were less than $50,000 and it had no capacity to pay future costs or current outstanding costs. The solicitors complained that the account of Bannerman Ziatas & Russell of $610,330 remained unpaid. They said:

‘You have never requested further opinions of another counsel or other financial information that has not been provided to date. No decision/review has been made by you of ˜ 95% of the balance of the application for financial assistance to date or payment of granted assistance.’

50 On 19 April 2005 Ms Jane Buckley, a Principal Legal Officer with the Department wrote to Mr Mijatovic to confirm details of the information required to finalise approval of the financial assistance grant of $60,000. These requirements had already been set out in a letter from the Department dated 25 January 2005. Her letter said:

‘The grant was approved to enable the delegate to complete the review by providing additional information necessary to reach a conclusion as to the prospects of success of your clients’ proceedings in the Supreme Court of Western Australia. The grant was for the purpose of inspection of the defendant’s documents held at the National Archives and for the purpose of obtaining an opinion from counsel as to prospects of success.

I wish to clarify an apparent misunderstanding of the term ‘counsel’. The opinion should come from a legal practitioner who is engaged as a barrister, rather than as solicitor in the matter. For example, your correspondence of 7 November 2002 attached advices from Mr Colvin SC and Mr Zelestis QC. Unfortunately these advices did not specifically address prospects of success. I would expect that you would request an updated advice from one of these counsel, or from counsel who is currently briefed in the matter, if Mr Colvin and Mr Zelestis are no longer briefed.’

Ms Buckley also noted that in the Department’s letter of 2 December 2003 the grant then approved was expressed to be subject to the condition that the applicants provided verification of their ‘current financial circumstances and the current financial circumstances of the Ex-Christmas Islanders Association’. No information had been received in response to that request until the solicitor’s letter of 30 November 2004. The verification received was out of date, consisting of bank statements of the Association from 2000 and 2001 and a 2002 payslip of Mr Laurie. The requirement to provide verification of current financial circumstances was not a new requirement.

51 Ms Buckley went on to say that the information provided by the solicitors on 12 April 2005 on the financial circumstances of the individual clients did satisfy the requirement so far as it related to them. However the Department also needed the latest financial statements/current bank statement for the Association. She added:

‘I confirm the additional requirement outlined by Mr Griffiths, that you need to provide information in relation to the amount of funding provided by the Association or any other source to date and details of the manner in which this funding has been expended. This requirement has arisen because we became aware, on receipt of your letter dated 30 November 2004, that at least $1,500,000 has already been requested from members of the Association to cover the cost of this matter. The fact that past contributions have been made and the issue of whether future contributions will be made, are relevant to enabling us to make a fully informed assessment of the hardship criterion.’

52 On 3 June 2005 the solicitors for the applicants wrote to the Australian Government Solicitor enclosing the further documents requested in the letter from the Department dated 19 April 2005. These comprised copies of bank statements of the Association for the period 22 December 2001 to 5 May 2005, financial statements of the Association for the 2004 financial year, the solicitors’ itemised account and amounts paid to solicitors for the 2005 financial year.

53 Ms Buckley wrote to the solicitors for the applicants on 22 June 2005 noting from the Association’s financial statements that there were a number of branches making it up. She sought current bank statements for those branches. She also asked for the solicitors’ advice of what work was covered by the $116,688.27 paid to them in the financial year ended 30 June 2005 and the sum of $95,184.32 paid to them in the previous financial year by the Association.

54 A letter dated 12 April 2005 was faxed from the solicitors for the applicants to the Department apparently on 22 June 2005. It referred to ‘… your letter dated today’. It stated that current statements for other branches of the Association did not exist. It asserted that the broad test of hardship had been satisfied. It asserted also that the conditions of the previously approved grant had been satisfied in full. It made extraneous reference to the Department’s decision to fund Australians charged with drug offences in Bali. It asserted that no decision had been made by the Department relating to the balance of the application for financial assistance to that date or payment of the grant of assistance.

55 The work covered in payments to the solicitors in the previous two financial years was said to have covered legal services and work incurred since 2000 in the main action which included travelling to Port Hedland and Katanning on several occasions, a mediation conference in 2004 and other interlocutory steps.

56 Ms Buckley responded on 29 June 2005 noting that no statements for other branches had been received as all other moneys were paid directly into the solicitors’ trust account. The Association’s 2004 financial statements showed a small profit of $6,342.39. Ms Buckley said this supported the fact that the applicants met the broad test of hardship. The Department would then assess for payment the more detailed account which had been provided on 3 June 2005. She concluded:

‘As you have been informed on a number of occasions, we are unable to finalise the internal review you have requested until you comply with our requirement to provide counsel’s advice on prospects of success. Part of the grant of assistance is to fund counsel’s advice to enable the delegate to make a proper assessment of your clients’ prospects of success. Once we receive the written opinion from counsel, the delegate will complete the review.’

57 In a reply letter dated 13 July 2005 the solicitors asserted that their own opinion, namely that of Mr Mijatovic, had been provided on 30 November 2004 and that he was counsel for the purposes of satisfaction of the condition. Ms Buckley wrote back on 28 July 2005 reiterating the position that it was a condition of the completion of the internal review that an opinion be obtained from another counsel on the applicants’ prospects of success in the proceedings.

The Decisions and Conduct for which Review is Sought

58 The decisions and conduct for which a review order is sought are stated in the amended application as follows (in chronological order):

1. Decision of 28 August 2001 as to ‘the balance of the application for legal assistance’.

2. Decision of 12 August 2003 to refuse legal aid/assistance.

3. Decision of 2 December 2003 to partly grant legal aid/assistance.

4. Decision of 25 January 2005.

The conduct relied upon is expressed partly in terms of failure, neglect or refusal to make decisions or provide legal assistance. The failures alleged are:

1. Failing, neglecting or refusing to make a decision on the balance of the application for legal assistance of the applicants.

2. Failing, neglecting or refusing to review the decision on the balance of the application for legal assistance of 2 December 2003.

3. Failing to properly and sufficiently provide legal assistance to fund the conduct of the action by the applicants.

4. Failing to make any determination upon review or otherwise of the decision of 12 August 2003 as to the legal services and costs incurred by the applicants since 28 June 2001 or otherwise including the legal assistance for –

(i) discovery of documents;

(ii) inspections;

(iii) pleadings;

(iv) Chambers and court hearings;

(v) applications and appearances before the Court;

(vi) general conduct of the application to trial.

5. Failing, neglecting or refusing to review the application for legal assistance for amounts other than those granted in the decision of the respondent dated 2 December 2003.

59 An order of review is also sought for the respondent’s conduct constituted by various alleged failures which may be summarised as follows:

(a) To provide natural justice.

(b) To comply with procedures required by law.

(d) To properly exercise the power conferred by the Guidelines as to procedural fairness under cl 7.

(e) To avoid an error of law.

(f) To make a decision or making of the decision would be otherwise be contrary to law. (sic)

(g) To take into account all relevant considerations in the exercise of the power and taking wrongly into account irrelevant considerations in the exercise of the power.

(h) To exercise the power to grant legal assistance for a purpose other than a purpose to which the power is conferred and exercising a discretionary power in bad faith or in the interests of the parent body of the respondent, being the Commonwealth of Australia who is at risk with respect to the action.

(i) To exercise a discretionary power in accordance with a rule or policy without regard for the merits of the case of the applicants.

(j) To exercise a power which is so unreasonable that no reasonable person should have so exercised that power or exercised that discretion as the respondent has done so.

(k) To exercise its power in a way that constitutes an abuse of power in that the respondent including creating obstacles to the applicants in their ability to conduct the action.

(l) To make a decision on the ground and causing unreasonable delay in making that decision.

60 In addition to an order of review the applicants claim an order:

‘…that a prerogative writ of mandamus be issued against the respondent directing it to make the reviews or decisions specified … above.’

The overview of this application indicates that it is based in part upon an inadequate understanding of the jurisdiction which it seeks to invoke, together with a disregard for the requirements of the Rules as to its form. The misunderstanding of the kind of relief available in judicial review is also demonstrated by the orders proposed on behalf of the applicants.

The Proposed Orders

61 The orders sought by the applicants were set out in a minute filed on 29 August 2005. They included the following:

‘1. The respondent do pay $60,000 to the applicants’ solicitors granted by it on 2 December 2003 forthwith.

2. The respondent do forthwith grant reasonable legal assistance to the applicants to conduct their test case action in WA Supreme Court action CIV 2057 of 1996 against the Commonwealth of Australia.

3. The respondent’s decision of 12 August 2003 be set aside.

4. Alternatively, the respondent do within 28 days hereof deliver decisions to the applicants’ solicitors on:-

a. the remainder of the applicants’ application for legal assistance;

b. the application for extensions of the grant for legal assistance made on 4 August 2004, 30 November 2004 and 8 December 2004;

c. Its decision of 2 December 2003 to grant $60,000 for financial assistance only;

d. Its request for a new opinion from an independent senior barrister for advice on the prospects of success made on 19 April 2005.

5. Alternatively, the respondent’s decision of 2 December 2003 be reviewed forthwith as to the sufficiency of the grant for inspections of the defendant’s discovered documents and a new opinion as to prospects of success.

6. Alternatively, the respondent do forthwith make a reasonable grant of financial assistance for the provision of a further legal opinion from an independent senior barrister requested by the respondent on 19 April 2005.’

The Decision-making Framework – The Appropriations Act

62 The Scheme is an administrative legal aid scheme set up by the Commonwealth Attorney-General with no express statutory backing other than the relevant Appropriation Acts. Copies of the relevant extracts from the Appropriation Act (No 1) 2003-2004 (Cth) and the Appropriation Act (No 1) 2004-2005 (Cth) were provided after the hearing by the Australian Government Solicitor. A copy was sent to the solicitors for the applicants. No issue was taken with that material.

63 According to the covering letter received from the Australian Government Solicitor, funding for the Scheme and other legal assistance schemes administered by the Commonwealth is included in both Appropriation Acts under an item described, as follows, in Schedule 1 to each Act:

‘Attorney-General’s Department

Outcome 1

An equitable and accessible system of federal civil justice.’

64 Appropriations are authorised, in respect of ‘departmental items’, by s 7 of the Appropriation Act. The term ‘departmental item’ is defined in s 3 as ‘… the total amount set out in Schedule 1 in relation to an entity under the heading “Departmental Outputs”.’ Section 8 authorises appropriations for ‘administered items’. The term ‘administered item’ is defined in s 3 as ‘… an amount set out in Schedule 1 opposite an outcome of an entity under the heading “Administered Expenses”.’ Output 1 under the Department in Schedule 1 shows authorised appropriation for departmental outputs of $47,868,000 and for administered expenses of $141,274,000.

65 The materials provided by the Australian Government Solicitor after the hearing included extracts from the ‘Portfolio Budget Statements’ of the Department for the 2004 and 2005 financial years. Such statements are declared to be relevant documents for the purposes of s 15AB of the Acts Interpretation Act 1901 (Cth). Table 2.1.1 in the Budget Statement for the Department for 2004 is headed ‘Total Resources for Outcome 1’. Under the subheading ‘Administered Appropriations’ in that table there is a figure shown for ‘payments for the provision of legal aid’. The budget estimate for the 2004 year was $74,826,000. Under the heading ‘Commonwealth Legal Aid Program’ there is a budget figure of $55,545,000. These two items which are referred to as administered items in table 2.2.1 attract performance measures as follows:

‘Payments for the provision of legal aid – Funds provided in accordance with formal agreements between the Commonwealth and the relevant States and Territories

Commonwealth Legal Aid Program –Funds provided in accordance with formal agreements between the Commonwealth and relevant State and Territory Legal Aid Commissions.’

Under the heading ‘Financial assistance towards legal costs and related expenses’ the performance measure is as follows:

‘Assistance provided in accordance with relevant legislation and in compliance with the terms of individual grants.’

I have been directed to no other elements of the Appropriation Acts or budget statements which would cover the Scheme. It is not contended that expenditure under the Scheme is not validly supported by appropriation legislation. It is not necessary to further inquire into that question for the purposes of this case. What is clear is that there is no statute establishing the Scheme which specifically authorises grants under it.

The Decision-making Framework – The Guidelines to the Commonwealth Public Interest and Test Cases Scheme

66 The Scheme came into operation on 1 August 1996. It replaced a scheme called the ‘Cases of National Importance Scheme’.

67 Under the heading ‘The Decision-maker’ in par 2.1 of the Guidelines, it is said:

‘Delegates in Legal Aid and Family Services (LAFS), Attorney-General’s Department have been appointed by the Attorney-General to deal with applications for assistance under the Scheme.’

It may be interpolated that these delegations were not delegations of statutory power, there being no relevant statute.

68 Paragraph 3 of the Guidelines sets out the procedures for applying for assistance under the Scheme.

69 The scope of the Scheme is described in par 4 thus:

‘4.1 Individuals, partnerships, companies, small business and other organisations may be eligible for assistance. Common purpose groups such as consumer groups or environmental groups may also be eligible for assistance. Assistance is available to plaintiffs and respondents to proceedings.

4.2 Assistance is available, subject to certain eligibility criteria, in cases involving questions arising under a law of the Commonwealth which, in the opinion of the Attorney-General, are of public importance either because they raise matters in the public interest or the questions are in the nature of a test case.

4.3 ‘Public interest’ cases are those involving questions arising under a law of the Commonwealth the resolution of which by the courts is, in the opinion of the Attorney-General, of public importance. ‘Test cases’ are those brought for the purpose of resolving an important question arising under a law of the Commonwealth that, in the opinion of the Attorney-General, affects the rights of a section of the public which is, or a group of persons who are, for the most part, socially or economically disadvantaged.’

70 In par 4.4 the Guidelines set out the kind of assistance available which includes professional legal costs and counsel’s fees. The types of matters for which assistance is not available are also mentioned. These include cases involving the interpretation of State law or common law principles. If the question has been determined previously and the law is settled, assistance is not available. The Scheme is subject to a merit test and does not cover cases which are vexatious and have no prospect of success.

71 Paragraph 4 also deals with availability of funds in the following terms:

‘4.13 As there are only limited funds available in any given year it is important that those cases that will assist the community to the greatest extent are funded. This means that not all cases can be funded.

4.14 Accordingly, in assessing an application for assistance regard is had to the availability of funds, in any given year, under the Scheme. Consideration is also given to the number and relative merits of other applications for assistance, whether made or reasonably expected to be made.’

72 Paragraphs 5.1 and 5.2 set out relevant considerations for grants and how they are to be weighed. It does so in the following terms:

‘5.1 In determining whether assistance should be authorised regard is had to a number of factors. These will include:

- hardship;

- prospects of success;

- the nature and extent of the benefit or detriment that may accrue to the applicant;

- the benefit to the public or any section of the public;

- the availability of funds; and

- the availability of legal aid from a legal aid commission.’

5.2 ‘The decision to grant or refuse assistance is a global assessment giving appropriate weight to the various considerations according to the circumstances of the case. Discretion can be exercised in these circumstances to ensure that the following factors, amongst others, are taken into account:

. the likely cost of proceedings;

. the overall financial position of the applicant and of associated persons;

. whether the applicant would suffer hardship if financial assistance was refused; and

. the public interest of the proceedings.’

The specified factors mentioned in par 5.1 are elaborated under the following headings:

Hardship – pars 5.3 to 5.11

Initial contributions – par 5.12

Verification of means – pars 5.13 to 5.17

Prospects of success – pars 5.18 to 5.21

Benefit/detriment to the applicant – pars 5.22

Benefit to the public – pars 5.23 to 5.25

Availability of funds – par 5.26

Availability of legal aid from legal aid commissions – pars 5.27 to 5.28

73 Paragraph 6 deals with ‘Conditions of Grants of Assistance’ and par 7 with procedural fairness. Under the heading ‘Procedural Fairness’ the following appears:

‘Review of decisions

7.1 Where an application for financial assistance is refused the reasons for refusal must be provided. The applicant will also be advised of the mechanism to seek a review of the decision and any request for review must be lodged within 28 days after reasons for refusal have been given to the applicant. The review shall be carried out by a nominated officer other than the original decision maker.

7.2 Similarly, where an application for assistance is approved subject to conditions and the applicant is dissatisfied with any part of the decision, the applicant may seek a review of the decision by lodging a request in writing. Applications for review must be made within 28 days after reasons for imposing the conditions have been given to the applicant. The review shall be carried out by a nominated officer other than the original decision maker.’

There is then reference to the availability of the Ombudsman and the Freedom of Information Act 1982. The application of the Privacy Act 1989 is also referred to.

Statutory Framework for Judicial Review

74 Section 5 of the ADJR Act provides that a person who is aggrieved ‘… by a decision to which this Act applies …’ may apply to the Federal Court for an order of review in respect of the decision. The grounds upon which such an application can be made are set out in pars (a) to (j) of s 5.

75 Section 6 provides, inter alia:

‘6(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds:- …’

The section then sets out the grounds upon which such an application may be made.

76 Section 7(1) of the ADJR Act provides:

‘Where –

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that decision; and

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.’

77 Section 8 of the ADJR Act confers jurisdiction on the Federal Court to hear and determine applications made to it under the Act.

78 Section 11 of the ADJR Act requires that an application to the Federal Court for an order of review shall be made in such manner as is prescribed by the Federal Court Rules. It requires also that the application shall set out the grounds upon which it is made. The application is required by s 11(1)(c) to be lodged with a Registry of the Court within the prescribed period which is the period commencing on the day on which the decision was made and ending on the 28^th day after the day on which a document setting out the terms of the decision was furnished to the applicant (s 11(3)(a)).

79 The interpretation provision, s 3, defines the term ‘decision to which this Act applies’ as follows:

‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(d) a decision included in any of the classes of decisions set out in Schedule 1.’

Paragraphs (b), (c) and (d) are not relevant for present purposes.

80 The term ‘enactment’ is defined, inter alia, as:

‘(a) an Act …

(c) an instrument (including rules, regulations or by-laws) made under such an Act …, other than any such instrument that is not an enactment because of section 3A;

…includes part of an enactment.’

81 Under s 3(2), a reference to the making of a decision includes a reference to:

‘(a) making, suspending, revoking or refusing to make an order, award or determination.

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

…

(d) imposing a condition or restriction.

…

(g) doing or refusing to do any other act or thing,

and a reference to a failure to make a decision shall be construed accordingly.’

82 The other statute invoked by the applicants in this case is the Judiciary Act which provides, in s 39B, inter alia:

‘(1) Subject to subsections (1B), (1C) and (1EA) the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.’

83 Order 54 of the Federal Court Rules prescribes the manner of making an application under the ADJR Act. In particular it requires in O 54 r 2 that an application shall be in or substantially in the form numbered 56 in Schedule 1. It also requires in O 52 r 2(2) that:

‘If the grounds of the application include an allegation of fraud or bad faith, the applicant shall set out in the application particulars of the fraud or bad faith on which he relies.’

84 Where an extension of time is required within which to lodge an application O 54 r 2A(1) and (2) impose the following requirements:

‘2A(1) An application under paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 for an extension of time in which to lodge an application for an order of review must:

(a) be accompanied by a proposed application for the order of review in accordance with Form 56; or

(b) be made by lodging an application for an order of review, in accordance with Form 56, that includes a claim for the order of review and for the extension of time.

2A(2) An application for an extension of time must be supported by an affidavit stating:

(a) the nature of the applicant’s case; and

(b) the questions involved in the case; and

85 It is also provided in O 54 r 3 that on the filing of an application for an order of review, or as soon afterwards as is practical, the applicant is to file copies of a statement of the terms of the decision the subject of the application and reasons for the decision provided under the ADJR Act or otherwise. This requirement of course applies only to such of those documents as are in the applicants’ possession.

The Application

86 The application which was filed on 22 February 2005 does not comply with the provisions of the Act and Rules. It purports to seek review of decisions which are said to have been made in 2001 and 2003 without seeking an extension of time to make such an application. In so far as it related to those decisions, the application is incompetent.

87 The application does not, as required by the Rules, set out the grounds upon which an order for review is sought. To the extent that grounds are identified they are used to describe conduct which is said to be the subject of the application. There is a difference between conduct which is to be reviewed and the grounds upon which it is reviewed. Those grounds which were presented, albeit as reviewable conduct, in the application seemed to have derived from an unthinking trawl through the grounds of review for which the Act provides. They included, contrary to the Rules, an unparticularised allegation of bad faith.

88 The terms in which mandamus was claimed on the proposed amended application revealed a misconception about the nature of the exercise the applicants were undertaking. The minute of the amended application claimed relief framed thus:

‘1. Pursuant to Sections 5-7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth,) s39 of the Judiciary Act (Cth) and Order 54A of Federal Court Rules for a writ of mandamus directing:-

1.1 An order of review in respect of the decision of the respondent …’.

89 The application as originally framed and the minute of amended application did not disclose, in any intelligible way, a basis for judicial review of any decision or conduct on the part of the respondent. It was, I regret to say, an application prepared to a standard well short of the minimum that should be expected and demanded of a competent legal practitioner.

90 The lack of attention paid to the legal framework within which the application purported to be made was illustrated by the lodgment on the part of the applicants’ solicitors of a document entitled ‘Statement of Terms of Decision under Order 54 Rule 3’. In purported compliance with the Rule the applicants’ solicitor lodged a copy of the Guidelines governing the administration of the Scheme. The covering sheet under which that document was filed bore the endorsement:

‘Pursuant to Order 54 Rule 3 of Federal Court Rules, the Applicants file a statement of the terms of review of the respondent’s decisions, failures to make decisions and conduct under the Test Cases Scheme of the respondent a copy of which is attached hereto.’

Nothing other than the Guidelines was attached.

Whether Review is Available under the ADJR Act

91 As appears from the provision of the ADJR Act set out above, an application may be made for an order of review in respect of ‘decisions to which this Act applies’. Conduct which is reviewable must be engaged in ‘for the purpose of making a decision to which this Act applies’. An application for review therefore must relate to a decision or conduct for the purpose of making a decision to which the Act applies. Such a decision is ‘a decision of an administrative character… under an enactment’.

92 In order to be amenable to review under the ADJR Act a decision made pursuant to the Scheme would have to be shown to be a decision under an enactment. Relevantly the enactment must be an Act of the Commonwealth Parliament or an instrument made under such an Act.

93 There is no Act of the Commonwealth which provides for decisions to be made for the grant of legal assistance under the Scheme. The Scheme Guidelines are administrative in character. They are not an instrument within the definition of ‘enactment’ under s 3 of the Act. The Scheme is an administrative policy for the distribution of moneys for the purposes, and according to the criteria and procedures, set out in the Guidelines. The expenditure is ultimately authorised by the relevant Appropriation Act, the terms of which have already been referred to. However the Appropriation Act authorises expenditure by the Department at a level of generality which could encompass a variety of different legal aid schemes including the Scheme under consideration in this case.

94 In the recent decision of the High Court in Combet v Commonwealth of Australia [2005] HCA 61, delivered on 21 October 2005, there was some discussion of the nature and effect of contemporary appropriations legislation at the Commonwealth level. Gleeson CJ referred to the trend, reflecting a recent development in the theory and practice of public administration, towards ‘outcome appropriations’ as a means of stating the purpose for which governments spend public money. This was evidently implemented in the Commonwealth in 1999-2000. His Honour referred to the general nature of outcomes stated in appropriations legislation thus (at [6]):

‘Typically, outcomes are stated at a high level of generality. Furthermore, they are commonly expressed in value-laden terms which import political judgment. Parliament is appropriating funds for use by a government, and the outcomes pursued may involve controversial policy judgments.’

95 To be made under an enactment a decision must be made ‘in pursuance of’ or ‘under the authority’ of the enactment – Evans v Friemann (1981) 35 ALR 428 at 436 (Fox ACJ). In Chittick v Ackland (1984) 53 ALR 143, Lockhart and Morling JJ considered the requirements for a document to answer the description of an instrument made under an Act or an Ordinance. They said (at 153):

‘…it must first be a document made “under” an Act or an Ordinance. The word “under” in the context of the Judicial Review Act, means “in pursuance of” or “under the authority of”…’

96 In Barnett v Minister for Housing (1991) 31 FCR 400 the applicant sought judicial review under the ADJR Act of a decision by the Department of Community Services and Health that he was not eligible for a government program under which assistance was provided to small nursing homes. There was no statute setting up the program. The criteria for eligibility was set out in a departmental circular. It was common ground that there was no statute or regulation conferring power to make grants of the relevant kind. Heerey J observed that the only statutory authority for the program was to be found in Appropriations legislation. As in the present case, the relevant Appropriation Act authorised expenditure of money against a generally expressed item. In that case it was ‘6. Residential Care for Older People (including payments to relevant trust accounts)’. Heerey J said (at 402):

‘In the present case the decision was not, in my opinion, made “under an enactment”. The only possible relevant enactment is the Appropriation Act. That particular legislation says nothing, expressly or by implication, about the programme. It does not provide for the making of the decision in question (or indeed any decision) and is not the source of power for the Minister to make it. The Appropriation Act merely makes lawful the use of public moneys for the purposes indicated.’

97 Heerey J referred to the decision of Wilcox J in Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565. That case concerned applications for mandamus and for review under the ADJR Act in respect of the refusal of the grant of legal aid in a particular case. The Australian Legal Aid Office operated under an administrative direction of the Attorney-General. It was not set up under a statute. The application was dismissed. Heerey J observed of the decision (at 402):

‘Although there is no mention of this in the judgment, it is to be inferred that the necessary funds for the operation of the Office were provided for in the applicable Appropriation Acts.’

In that case Wilcox J found there was no relevant enactment.

98 In the present case there is no statute supporting the Guidelines for the Scheme. The Appropriation Acts confer authority to make expenditure at a level of such generality that it could not be said that the decision under the Scheme amounts to a decision ‘under’ those Acts for the purposes of the ADJR Act. The Guidelines do not have statutory force. Decisions made to grant or refuse legal assistance under the Scheme are not decisions made under an enactment within the meaning of the ADJR Act. In respect of all the decisions and conduct to which it purports to apply therefore, the application is incompetent to the extent that it invokes the ADJR Act.

The Application of S 39B of the Judiciary Act

99 Although not expressed with great clarity, it seems that the applicants seek a writ of mandamus against the Attorney-General pursuant to s 39B of the Judiciary Act. However as noted earlier, the claim for a writ of mandamus is expressed in a way that is unintelligible. What is sought is a writ of mandamus directing orders of review in respect of decisions of the respondent. In par 2 of the minute of amended application the applicants seek an order that a writ of mandamus be issued against the respondent directing it to make the reviews or decisions specified in pars 1.1 to 1.9 of the application. However, none of these decisions are made pursuant to an identified legal duty to make them. As already pointed out, the scheme is set up as an administrative exercise. It is not a statutory scheme nor does it derive from any statute. There is no legal duty identified which is enforceable by mandamus requiring the Attorney-General either to consider applications or to make a grant pursuant to the criteria set out in the Guidelines.

100 A similar issue arose in Barnett where the applicant sought mandamus as well as judicial review under the ADJR Act. Heerey J said (at 403):

‘A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed:…’

In the case before his Honour the programme was not established by statute or regulation. It was ‘a matter entirely within the discretion of the Minister whether to establish the programme or to modify or revoke it’. His Honour pointed out that the departmental circular in that case did not have the force of law (at 403):

‘Ministers cannot make law unless in the exercise of a power conferred by statute.’

101 None of the preceding should be taken as concluding the question, not argued in this case, whether and to what extent judicial review is available in relation to exercises of the prerogative or executive power under s 61 of the Constitution. In any event, in this case, the exercise of such power in the expenditure of moneys under the Scheme was discretionary and not governed by a public duty amenable to mandamus.

The Merits

102 Quite apart from the fatal threshold difficulties faced by this application, there is nothing in the materials to support the proposition that if the discretions exercised under the Scheme had been exercised in a statutory context, they would have miscarried. The Department reasonably required, as a condition of the continuance of the internal review process, that an opinion be obtained from independent counsel. While Mr Mijatovic may have misunderstood that requirement, his misunderstanding does not mean that any officer of the Department was under any duty to accept his opinion as satisfaction of the condition of the grant initially approved. No doubt the process was unduly protracted, to some extent on both sides, but that is not a matter which, in these circumstances, would have exposed a basis for any order assuming the Scheme to have had any statutory effect.

Conclusion

103 For the preceding reasons the application will be dismissed. In light of the way in which the application was prepared and presented, I will require the solicitor for the applicants to show cause why he should not personally pay the respondent’s costs of the application.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 21 December 2005

Counsel for the Applicants:	Mr T Mijatovic

Solicitor for the Applicants:	TRM Legal Services

Counsel for the Respondent:	Mr JD Allanson

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	31 August 2005

Date of Judgment:	21 December 2005

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