FEDERAL COURT OF AUSTRALIA

Malek Fahd Islamic School Limited v Minister for Education and Training [2016] FCA 807

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    The decision by the second respondent made on 24 May 2016 be set aside.

2.    The respondents pay the applicant’s costs up to and including 17 June 2016.

THE COURT ORDERS THAT:

3.    It be declared that the first respondent is presently bound to give effect to and apply his determination made on 16 November 2015 in respect of the applicant pursuant to s 25 of the Australian Education Act 2013 (Cth) (the determination) to cause the Commonwealth to pay the State of New South Wales, pursuant to s 23(2)(b), the second payment due thereunder.

4.    Upon the applicant, by its senior counsel, undertaking to the Court that:

(a)    it will not pay any money received pursuant to order 4, below, or any other money it receives, to the Australian Federation of Islamic Council or the entity known as AFIC (collectively AFIC) unless the Court so orders;

(b)    unless the Court orders otherwise, it will commence proceedings expeditiously to recover from AFIC the sum of $4.7 million or such other sum as and if it is advised there are reasonable grounds for believing would be recoverable in such an action;

on or before 24 June 2016, unless the Court otherwise orders, the first respondent do all things necessary for the Commonwealth to pay the State of New South Wales as soon as possible thereafter, the amount of the second payment due to the applicant under the determination.

5.    The first respondent pay 50% of the applicant’s costs between and including 18 June 2016 and 21 June 2016.

6.    There be liberty for any party to apply under Order 4 on 24 June 2016, on such notice as to the Court seems just.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    Malek Fahd Islamic School Limited (the school) was an approved authority to receive payments of financial assistance in accordance with the Australian Education Act 2013 (Cth). The scheme of the Act reflects the exercise by the Commonwealth of its powers under s 96 of the Constitution to make grants to States of money for particular purposes. The purposes envisaged by the Act are for the Australian school system to be adequately and appropriately funded in accordance with a set of complex objects set out in s 3 of the Act, and as reflected in its preamble.

2    On 16 November 2015, a delegate of the Minister made a determination (the 2015 determination) under s 25(1)(d) of the Act that the school receive its 2016 recurrent funding entitlement of about $19 million in four payments, to be made in January, April, July and October 2016. The school’s total entitlement for 2016 is determined, ultimately, based on census and other information that updates over the course of the year. Therefore, its quantum is not certain until the final payment is due in October 2016, when the total entitlement is calculated based on the 2016 census data, less payments already made for the year. The school received the January 2016 payment of about $5.5 million but has not received the April 2016 payment (the second payment) of about $5.2 million, as a result of the circumstances that I describe below.

The legislative scheme

3    Relevantly, the legislative scheme under the Act operates as follows. An approved authority for a school is a person approved under s 73. The basic requirements for the Minister to approve a person as an approved authority for one or more schools are that the person is a body corporate or a body politic, does not conduct for profit any school in relation to which the application is made, is financially viable and is a fit and proper person to be an approved authority for one or more schools (s 75(2) to (5)). The Minister may have regard to a number of factors, as well as any other matters that he considers relevant for the purpose of determining whether a person satisfies the requirements that the person does not conduct its business for profit, is financially viable and is fit and proper.

4    The Minister has a discretion to determine in writing an amount or amounts of payments of financial assistance to a State or Territory that appear to him are or will become payable under Div 5 of Pt 3 of the Act for a year as transitional recurrent funding for a participating school, being an approved authority. The Minister may also determine when such payments are payable (s 25(1)(b) and (d)).

5    The total amounts of payments made under s 25(1)(b) to the State or Territory for an approved authority for a year must equal the amount determined by the Minister under s 26(4) as the amount he is satisfied should be paid (s 26(2)). However, (as the statutory note below s 26(1) stated) that amount may be reduced under s 110, which gives, among others, power to the Minister to determine in writing that the amount of financial assistance payable to a State or Territory under the Act be reduced by a specific amount (s 110(1)(b)). Such a decision is reviewable in the Tribunal (s 118, item 26).

6    Division 5 of Pt 3 deals with payments under the Act and their calculation that are made during the transition period following the commencement of the Act on 1 January 2014. The Division sets out complex formulae for calculation purposes that are not presently relevant.

7    The Act specifies ongoing policy requirements, in some detail, for all approved authorities (s 77), and the ongoing funding requirements for an approved authority (s 78). Importantly, s 81(1)(a) provides:

81    Variation or revocation of approval on Minister’s own initiative

(1)    The Minister may, in writing, vary or revoke an approved authority’s approval for one or more schools on the Minister’s own initiative if:

(a)    the Minister is satisfied that the approved authority does not comply, is not complying, or has not complied, with section 75, 77 or 78; (emphasis added)

8    Part 8 of the Act deals with action that the Minister may take for non-compliance with the Act and to require amounts to be repaid. Relevantly, ss 108(b) and 110(1) provide:

108    Application of Division for non compliance

This Division applies to a State or Territory if any of the following applies:

…

(b)    an approved authority for one or more schools located in the State or Territory does not comply, is not complying or has not complied with section 75, 77 or 78 (basic and ongoing requirements for approval);

…

110    Actions the Minister may take

(1)    The Minister may take any one or more of the following actions in relation to a State or Territory to which this Division applies:

…

(c)    delay making any further payment (or a part of a further payment) to the State or Territory under this Act for a year until:

(i)    if this Division applies because of section 108 – the non-compliance, breach or failure is rectified;

… (emphasis added)

9    Finally, s 126 provides that the consolidated revenue fund is appropriated for the purposes of making payments of financial assistance under the Act to a State or Territory for a year in accordance with a determination made, relevantly, under s 25.

Background

10    On 8 February 2016, a delegate of the Minister revoked the approval of the school as an approved authority in exercise of the Minister’s power to do so under s 81(1)(a) of the Act. The school applied for internal review of that decision in accordance with s 120 of the Act.

11    The delegate who conducted the internal review affirmed the initial delegate’s decision on 4 April 2016. The delegate found that the school was being conducted for profit, in contravention of s 75(3), and was not a fit and proper person, in contravention of s 75(5). He also found that the school did not comply with ongoing funding requirements in s 78(2)(a) and was not compliant with an ongoing funding requirement of s 78(1)(a) of the Act. The delegate gave detailed reasons for his decision.

12    On 6 April 2016, the school applied to the Administrative Appeals Tribunal for a review of the delegate’s decision pursuant to s 122 of the Act. On 28 April 2016, the Tribunal made an order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that, upon the school giving to the Tribunal and the Minister particular undertakings about the way in which the school would carry on its business pending the determination of the application for review, the decisions of the delegates of the Minister made on 8 February 2016 and affirmed on 4 April 2016 be stayed until further order. That stay is still in effect and the proceedings to review the revocation of the school’s approval as an approved authority for the purposes of the Act remain pending before the Tribunal. The effect of the stay is that, for the purposes of the Act, the school remains an approved authority until further order of the Tribunal. The Tribunal published its reasons for that decision on 11 May 2016: Malek Fahd Islamic School Limited v Minister for Education and Training [2016] AATA 300.

13    On 24 May 2016, without any prior notice to the school that he was considering exercising his powers under s 110(1)(c)(i) of the Act, another delegate of the Minister wrote to the school informing it that he had decided, pursuant to s 110(1)(c)(i), to delay making any further payment to the State of New South Wales in respect of the school under s 23(2)(b) of the Act.

14    After the school commenced these proceedings urgently on 15 June 2016, the Minister reviewed the circumstances in which the 24 May 2016 decision was made. On 17 June 2016 the Minister informed the school that he accepted that the school had not been afforded procedural fairness, or the right to be heard, before the making of the 24 May 2016 decision and that it was no decision at all because it was affected by that jurisdictional error.

15    The Minister and the school agreed that this position should now be reflected in orders that the 24 May 2016 decision be quashed and that, in respect of the proceedings to that point, the Minister should pay the school’s costs. However, they disagreed as to whether any further relief should be granted to the school.

The present issue

16    The school contended that it is entitled to Constitutional writs of injunction or mandamus, in effect compelling the Minister to cause payment of the school’s second payment under the 2015 determination, totalling about $5.2 million, that was due in April 2016. Alternatively, the school sought similar orders under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

17    The Minister contended that no such order should be made, particularly having regard to the fact that, contemporaneously with his concession that the school had been denied procedural fairness on 17 June 2016, the Department wrote to the school informing it that the Minister was giving consideration to whether he should decide to delay making any further payment in exercise of his power under s 110(1)(c)(i) of the Act. That letter identified the concerns which the Minister had and invited the school to respond. Those concerns related to matters that appear to have arisen after, or from information supplied to the Minister following, the decision of 4 April 2016. The letter referred to certain payments and liabilities for which the Minister sought explanations and required the school to provide up to date financial information concerning its current financial position. The letter requested the information by close of business tomorrow, 22 June 2016, and stated that, upon receipt of any material in response, the Department would assess it thoroughly to facilitate a decision by the Minister’s delegate.

18    The evidence before me is that the school’s circumstances have changed significantly since the delegate’s original decision of 8 February 2016. The changes involved the installation of a new board, which the delegate in his 4 April 2016 decision found would be comprised of persons who, when the important formality of their actual appointment occurred, would satisfy the requirement in s 75(5) that the school be a fit and proper person, in contrast to the less benign assessment of its previous board. However, at that time, the delegate was not satisfied that a quorum had been appointed as board members. He found that the school’s governance arrangements were still inadequate to ensure compliance with the Act and so was not satisfied that the school was then a fit and proper person.

19    The school also led evidence that it was undertaking steps to regularise its governance and financial position, but that not all that the current board wished to do in that regard had been, or could yet be, accomplished. This was because of actions allegedly taken by the previous board and management of which the current board either was not aware or in respect of which the current board asserted that the previous board or some of its members had made claims for legal professional privilege that were preventing the new board from being able to gain an understanding of the activities of its predecessor and the earlier management.

20    It is not necessary to go into those matters in detail. Suffice to say that the urgency of the present situation is that the school contended that unless it receives, or is certain that it will receive promptly, the second payment without delay its financial advisers, the accountants, Grant Thornton, have recommended that it go into voluntary administration under Pt 5.3A of the Corporations Act 2001 (Cth). The consequence of that would be that the school will not be able to reopen for the July 2016 school term.

21    Geoff Dornan, one of the directors of the school, gave evidence that the likely consequence of a voluntary administration would be the closure of the school because its running costs would exceed its revenue and that, as a result, it would not be able to pay wages, salaries and creditors. He said that the closure of the school would result in the loss of employment for approximately 200 teaching and support staff and that the school could not pay them any retrenchment or employee entitlements, such as accrued holiday or long service leave that, as at the end of May 2016, amounted to over $2.4 million. He also said that the school’s 2,400 students would need to find a new school. This, in turn, would place serious pressure on other schools in the district and have dire consequences, including the disruption that would be caused for the current year 12 students who are studying for their Higher School Certificate and have their trial exams imminent.

22    In the ordinary course, under the intergovernmental arrangements between the Commonwealth, States and Territories participating under the Act, the Commonwealth makes two batches of payments each month to the States and Territories in respect of specific approved authorities. The next regular payment batch will be the second batches for July 2016. The group administration unit of the Minister’s Department must determine the payments to be included in that batch on 4 July 2016 and it then will communicate those to the Treasury by 13 July 2016. On 21 July 2016, the Treasury will make payments of those moneys to the various States and Territories under s 23.

23    The school has offered undertakings that could operate as conditions on any order for payment to it, namely first, that it would not pay any moneys to the entity known as AFIC, being the Australian Federation of Islamic Councils and, secondly, that it would commence action to recover from AFIC an amount of $4.7 million or such other sum as the school was advised that there were reasonable grounds for believing to be recoverable.

24    In his 4 April 2016 decision, the delegate expressed concerns about AFIC which appeared to be the school’s holding company or entity. The Department’s letter of 17 June 2016 referred to subsequent transactions involving AFIC and sought that the school give explanations for those payments in respect of its obligations under the Act.

The parties’ submissions

25    The school argued that it was entitled to a final injunction, either as a Constitutional writ under s 39B(1) of the Judiciary Act 1903 (Cth) or under s 16(1) of the ADJR Act, to restrain the Minister from delaying or otherwise failing to make the second payment due in April 2016 to the State of New South Wales, and, in effect, sought an order for its immediate payment. Alternatively, the school sought an order in the nature of writ of mandamus for the same relief. It advanced what it characterised as three grounds for such an order.

26    First, the school contended that the Tribunal's stay order operated, until it had decided the review, to preclude the Minister from exercising any power under the Act and, in particular, under ss 81(1)(a) and 110(1)(c)(i), to prevent the immediate payment of money due, including, but not limited to, the second payment, as and when the 2015 determination specified. Secondly, the school argued, more narrowly, that once the 24 May 2016 decision is quashed or because the Minister has accepted that it was invalid, the second payment was immediately due and payable and the Minister had no power subsequently to delay it under s 110(1)(c)(i). That was because, the school submitted, now no decision operated, or could be made to interfere, in effect, with its vested right for an immediate payment of the second payment to the State of New South Wales, and that pursuant to s 23(2)(b), the State had to on-pay that money to the school. Thirdly, the school contended that it was entitled, in the circumstances, to an order that the second payment be made. The school relied on the substantive impact that any refusal of relief or delay in clarifying its immediate right to the second payment would have on its student cohort and staff, together with the obvious difficulty in human circumstances that that would occasion.

27    The Minister contended that the third ground was an aspect of the first or second grounds and stood or fell on the proposition that the second payment had become irrevocably due. I agree with the Minister's contention about the school’s third ground, and I will deal with that as an aspect of the first and second grounds.

28    In elaborating its first ground, the school argued that the 24 May 2016 decision subverted its right to receive payments under the 2015 determination that the Tribunal’s stay order, in effect, had preserved. It argued that, by reason of the stay, the Minister had no power under s 110(1)(c)(i) to interfere with its right to the second payment. It contended that the Minister could not rely on matters that had founded the stayed decision revoking its approval as an approved authority under s 81(1)(a). It submitted that ss 75, 77 and 78 did not create any substantive power that the Minister now could use to delay the second payment due in accordance with the 2015 determination. In other words, the school said that the stay order prevented the Minister from making any decision under s 110(1)(c)(i), based on any fact or circumstance that had arisen subsequently to 4 April 2016. That entailed, so the argument ran, that events occurring after that date that objectively would mean that the school had not complied with any of the provisions of ss 75, 77 or 78, could not justify a decision to delay payment.

29    In elaborating the second ground, the school argued the invalidity of the 24 May 2016 decision meant that the second payment was irrevocably or immediately due and payable. As a result, it argued that the Minister cannot now make a decision under s 110(1)(c)(i) because that provision is prospective in its operation and cannot constitute a ground to delay a payment that was due already.

30    The Minister argued that he was entitled to delay making the second payment while he considered whether to exercise his power under s 110(1)(c)(i) to delay making such a payment. He argued that no order should be made that required him to cause any payment to be made.

31    It was common ground that while the stay remained in force, the Minister could not rely on the matters that the delegate had relied on to revoke the approval of the school under s 81(1)(a).

Consideration

32    I reject the school's first ground. The stay order had the effect of suspending the operation of the Minister’s revocation of the school's status as an approved authority. The consequence of that suspension was that the school remained, for the purposes of the Act, an approved authority and subject to the operation of the Act, administered according to law. Thus, the future conduct of the Minister and the entitlements of the school remained to be regulated under the Act as if the revocation had not occurred, pending the Tribunal's decision on the review.

33    However, s 81(1)(a) operates differently to s 110(1)(c)(i). The former is conditional on the Minister, acting on his own initiative, being satisfied of the existence of one of the matters of non-compliance identified in the section, namely non-compliance with any of the provisions of ss 75, 77 and 78. A decision as to satisfaction is judicially reviewable in the sense explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276. Their Honours dealt with a challenge to a Minister’s exercise of power under a statutory provision that made his satisfaction, as to whether a fact existed, the criterion for the impugned decision. They held that a court could quash such a decision if it were made under a jurisdictional error.

34    Here, the criterion for the exercise of the Minister's power under s 81(1)(a) is his satisfaction that an approved authority does not comply, is not complying or has not complied with one or more of ss 75, 77 or 78. That criterion, of satisfaction, involves a different state of affairs to the criterion for decision-making under s 110(1)(c)(i). That is because s 108(b) specifies the precondition for the exercise of the Minister’s power to decide to delay making a payment under s 110(1)(c)(i) is the existence of a fact, namely that the approved authority does not comply, is not complying or has not complied with one or more of ss 75, 77 or 78.

35    The latter criterion required the actual existence of a jurisdictional fact in contradistinction to the criterion in s 81(1)(a) of the Minister being satisfied of the existence of a state of affairs. The fact of non-compliance, breach or failure must exist in order to enliven the Minister’s power to delay a payment pursuant to s 110(1)(c)(i) until the non-compliance, breach or failure is rectified. Accordingly, s 110(1)(c)(i) operates on an existing state of affairs, being a non-compliance, breach or failure to comply with a requirement in ss 75, 77 or 78. The Minister can only take action to delay making any, or a part of a, further payment to the State or Territory under the Act until the non-compliance, breach or failure is rectified if the jurisdictional fact of such a non-compliance, breach or failure actually exists.

36    Notably, s 110 does not provide expressly for a further power to delay a payment, beyond that in s 110(1)(c)(i) itself, so as to entitle the Minister to consider whether or not he will take action to delay that payment. Indeed, the statement of the Minister's proposition of the implication of a further power to delay appears to carry its own refutation. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39], French CJ, Hayne, Crennan, Bell and Gageler JJ said:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

37    Here the parties did not refer to any surrounding material outside the terms of the Act itself as relevant to its construction. The Act appears to contain its own code for actions open to the Minister. The Minister may only act to delay a payment under s 110(1)(c)(i) where a state of affairs that that subsection specifies exists as a matter of fact. The Minister has not made a decision to delay making any further payment in respect of the school that is operative. His earlier decision of 24 May 2016 was no decision at all: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76].

38    For these reasons, I am of opinion that the Minister is presently bound to make the second payment under s 25(1)(b) to New South Wales and that New South Wales will then be bound to make the second payment to the school by force of s 23(2). None of those sections or any other section in the Act (other than s 110(1)(c)(i)) contains any provision for the Minister to delay making payments that he has determined under s 25(1)(d) be made at a particular time. The 2015 determination is still in effect even though the Minister may have power to revoke it under s 33(3) of the Acts Interpretation Act 1901 (Cth).

39    In my opinion, the Minister is under an immediate obligation to act in accordance with his unrevoked 2015 determination to make payment of the now significantly delayed second payment in respect of the school. There is no power in the Act for the Minister to delay a payment, except for that in s 110(1)(c)(i). The Minister has not exercised that power and, until the completion of the steps to ensure that he accords the school procedural fairness, he cannot make a decision to further delay the second payment. Such a decision can only be taken if the relevant facts exist under s 110(1)(c)(i) that would enliven the discretionary power.

40    On the other hand, the Minister’s powers under the Act, including s 110(1)(c)(i), are important provisions by which the Parliament sought to entrust him with control over very large sums of money appropriated under s 126. The purpose of s 110(1)(c)(i) is to enable the Minister to act to protect the revenues of the Commonwealth so that they are only applied in payments for the purposes contemplated by the Parliament as expressed in the Act.

41    The orders for payment sought by the school are analogous to a writ of mandamus to compel the Minister to perform an act that the school is entitled to have done. In The King (on the prosecution of Howard Freeman) v Arndel (1906) 3 CLR 557 at 566-567, Griffith CJ said (see also at 577 per Barton J and at 581 per O’Connor J, who gave concurring judgments):

Mandamus is a prerogative writ, issued nominally in the name of the Crown, but really on the relation of an individual, to compel an officer to do an act which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses. If the act sought to be compelled to be done is a discretionary act, mandamus does not go further than to command the exercise of the discretion, and can never go to command its exercise in a particular manner. (emphasis added)

42    Mason CJ, Dawson, Toohey and Gaudron JJ adverted in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 to the first basis on which a writ of mandamus might issue (which I have emphasised in the above quotation), namely the power to grant mandamus to compel the performance of a duty to do something which, if done, will or could result in the person seeking the writ obtaining a tangible benefit or entitlement, such as a licence or a franchise. Subsequently, in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51 at 81, Mason CJ said:

At one time it seems to have been thought that mandamus would not be granted to enforce payment of money by the Crown [See, e.g., Reg. v Lords Commissioners of the Treasury (1872), L.R. 7 QB 387.]. However, in principle there can be no objection to the grant of relief by mandamus directed to a statutory officer requiring that officer to pay money if there be a public legal duty to so act [See Reg. v Commissioners for Special Purposes of the Income Tax (1888), 21 QBD 313, at p. 322, per Lindley L.J.]. In the present case, the duty to exercise the discretion was a public duty [Reg. v Inland Revenue Commissioners; Ex parte Federation of Self-Employed [1982] A.C., at pp. 651-652, per Lord Scarman] and it was a discretion which, in the circumstances of this case, could be exercised only in one way. Consequently, mandamus will issue not only to compel exercise of the discretion according to law but also to compel it to be exercised in the way in which it must be exercised. (emphasis added)

43    Brennan J, with whom Toohey and McHugh JJ agreed, came to a similar view (182 CLR at 88) saying:

Mandamus will go where there is a duty to pay money [Reg. v Commissioners for Special Purposes of the Income Tax (1888), 21 QBD 313, at p. 322; R. v Lords Commissioners of Treasury (1835), 4 Ad. & E. 286, at pp. 294-295 [111 ER 794, at p. 797]; Federal Commissioner of Taxation v Official Receiver (1956) 95 CLR 300, at pp. 311-312, 324.]. In this case, there is no residual discretion in the Commissioner to refrain from making a refund in exercise of her powers under s. 111(1) once she finds that there has been an overpayment and there is a legal liability to refund the amount found to have been overpaid. (emphasis added)

44    That position is indistinguishable from the present case because the scheme of the Act, consistent with s 96 of the Constitution, is that once the Minister makes a determination under s 25(1) in respect of an approved authority, the Commonwealth (not the Minister personally) becomes obliged to make payments of public money to a State or Territory, in this case New South Wales, that it must then pay to the nominated approved authority, in this case the school.

45    Ordinarily, an order in the nature of a writ of mandamus will be granted where a public officer wrongly refuses jurisdiction, e.g. where a specific right to require the performance of a statutory duty exists and no specific legal remedy is provided for enforcing that right. But, the writ only goes to compel the performance of a public duty imposed by statute, as explained by Latham CJ, Rich, Dixon, McTiernan and Webb JJ in The King v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-399. They said at 400 (in a passage cited with approval by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28]; and see also The Queen v Commonwealth Court of Conciliation and Arbitration: Ex parte Ellis (1954) 90 CLR 55 at 64-65 per Dixon CJ, with whom Williams J at 66 and Taylor J at 69 agreed):

The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. (emphasis added)

46    The next question is whether I should exercise my discretion to grant an injunction as a potential alternative remedy or make a declaration, such as was contemplated in Ainsworth 175 CLR at 581-582 and Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 359-360 [101]-[104] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Here, the Minister is concerned whether any of the possible bases exist on the subject of the 17 June 2016 letter, that would warrant him exercising his power to delay the second payment under s 110(1)(c)(i). The school, itself, acknowledges that its ability to understand its financial position and current circumstances has been affected by the irregularities that led to the removal of the previous board and the installation of the new one. It is still coming to terms with, and discovering, aspects of the school’s financial position.

47    The second payment of $5.2 million is a very large sum of public money. The circumstances of the students and staff of the school also raise important public considerations, all of which need to be taken into account in determining an appropriate remedy in all of the circumstances. There is the very real risk that if the second payment were made immediately pursuant to an order of the Court, the school would have no capacity to repay the money were it to transpire that either the Tribunal affirms the decision the subject of its stay order, or the matters the subject of the 17 June 2016 letter would have justified the Minister delaying its payment under s 110(1)(c)(i).

48    The school has not suggested that it will not be able to provide by tomorrow an adequate response to the subjects raised in the 17 June 2016 letter. There is no reason to think, after that response, that the Minister or his delegate will not be in a position to make promptly a decision that has regard to his statutory obligations, if the circumstances warrant a decision to delay the second payment.

Conclusion

49    In my opinion, for the reasons I have given it is appropriate to make a declaration that the second payment is due and payable immediately. A declaration of immediate entitlement to the second payment reflects the school’s rights.

50    The question of whether to make an order to compel the Minister to cause the second payment to be made is more problematic. I am dealing, first, with public law issues, as opposed to merely private rights, and, secondly, one way or the other there is a real possibility that an order compelling the Minister to make, or, decision to delay in making, the second payment will produce potentially irreversible consequences for one of the parties. I am of opinion that I should exercise my discretion also to make an order, upon the undertakings proffered by the school, that on or before 24 June 2016 the Minister cause the second payment to be made under s 23(2)(b) of the Act, unless the Court otherwise orders. The undertakings, to some extent, address some of the Minister’s existing concerns. The condition, that the Court may otherwise order, will address the position that may arise if the Minister makes a decision under s 110(1)(c)(i) in the meantime. In that event, it will be open to the school or the Minister to address whether, in those new circumstances, the order for payment ought be varied.

51    Although each party has had some measure of success, I consider that the Minister should pay 50% of the school’s costs between 18 and 21 June 2016.

Associate:

Dated:    12 July 2016