Re Australian Capital Territory Health Authority v Limro Pty Limited and Berkeley Cleaning Group Pty Limited [1985] FCA 199 (12 June 1985)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
And: LIMRO PTY. LIMITED and BERKELEY CLEANING GROUP PTY. LIMITED
Nos. G75 and G76 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), McGregor(1) and Spender(1) JJ.

CATCHWORDS

Administrative Law - tenders - whether failure to consider applicant's tender was conduct to which the Administrative Decisions (Judicial Review) Act applied - whether decision to contract with another tenderer was decision "under an enactment".

Administrative Decisions (Judicial Review) Act 1977 ss.5,6.

Health Services Ordinance 1985 (A.C.T.) s.8.

Administrative Law - Judicial review - Public authority empowered by statute to enter into contracts - Tenders - Whether rejection of applicant's tender was "conduct" to which Administrative Decisions (Judicial Review) Act 1977 (Cth) applies - Whether decision to contract with another tenderer was a "decision under an enactment" - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6 - Health Services Ordinance 1985 (ACT), s 8. Held: That the decisions of the appellant (i) to exclude from consideration a tender of the respondent, and (ii) to enter into a contract with another tenderer, against the background of the Health Commission Ordinance 1975 (ACT), s 8, which invested the appellant with power, inter alia, to enter into contracts, were decisions:

(b) made under an enactment.

Australian National University v. Burns [1982] FCA 191; (1982) 64 FLR 166, distinguished.

Australian Film Commission v. Mabey [1985] FCA 121; (1985) 6 FCR 107, referred to.

HEARING

Sydney, 1985, May 15-16; June 12. 12:6:1985

APPEAL

Appeal, by leave, from judgment and orders of Morling J. rejecting

challenges to competency of application under Administrative Decisions (Judicial Review) Act 1977.

B W Rayment QC and T M Johnstone, for the first appellant.

J M Rolfe QC and P H Blackburn-Hart, for the second appellant.

M H Tobias QC and J Spigelman, for the respondent.
Cur adv vult

Solicitors for the first appellant: J G O'Halloran.

Solicitors for the second appellant: Walsh James.

Solicitors for the respondent: Suttons.
SMW

ORDER

1. The appeals be dismissed.

2. The appellants pay the respondent's costs of the appeals.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Appeal dismissed with costs

DECISION

This is an appeal, by leave, from a decision of a judge of the Court (Morling J.) in which he rejected challenges to the competency of an application under the Administrative Decisions (Judicial Review) Act 1977. The application had been made by Berkeley Cleaning Group Pty.Limited ("Berkeley") and the present appellants were respondents thereto. The appellants instituted separate appeals but it was ordered that they be heard together, and that only one appeal book be prepared.

2. Berkeley was an unsuccessful tenderer for cleaning services at the Woden Valley Hospital, Canberra (and associated nursing home), the tenders having been called by the Australian Capital Territory Health Commission. This was a statutory body established by the Health Commission Ordinance 1975. This body was replaced by the Australian Capital Territory Health Authority (the Authority) by the Health Services Ordinance 1985. It is the Authority which brings this appeal. The successful tenderer was the co-appellant Limro Pty. Limited ("Limro").

3. Berkeley held the contract for cleaning services at the time the tenders were dealt with, and its equipment was on the premises. The notices of appeal did not raise the question whether it was "a person who is aggrieved", and we refused leave to amend so as to include that matter.

4. The relevant part of the legislation is s.8 of the Ordinance, which was at the time, and still is, in the following terms:

"8. The Authority has power to do all things that are
necessary or convenient to be done for or in connexion
with the performance of its functions and, in
particular, without limiting the generality of the
foregoing -

(a) to acquire, hold and dispose of real and personal
property;
(b) to enter into contracts;
(c) to erect buildings;
(d) to occupy and use land or buildings made
available to the Authority by Australia;
(e) to accept gifts, devises and bequests made to the
Authority, whether on trust or otherwise, and to
act as trustee of moneys or other property vested
in the Authority upon trust;
(f) to let on hire plant and equipment of the
Authority;
(g) to enter into arrangements with persons or
authorities outside the Territory for, or in
connexion with, the provision of medical
treatment to a person, whether within or outside
the Territory;
(h) where the Authority is not able to use buildings,
equipment or facilities of the Authority to the
full extent of their capacity, to enter into
arrangements for the use of the buildings,
equipment or facilities by persons or bodies
other than the Authority; and
(i) to make the services of staff of the Authority
available to persons providing or conducting
health services."

5. In the application two "decisions", which were related to the same matter, were challenged. The first was a decision of the Authority that the tender of the applicant (respondent before us) was "non-assessable", and the second was the decision to enter into a contract with Limro. This term "non-assessable" is not a technical one, and no precise meaning has been given to it. It apparently related to compliance of the tenderers with requirements as to the form and content of the tenders called for by the Authority. The first "decision" was treated by the Judge as conduct for the purpose of making a decision (s.6 of the Judicial Review Act) and we understand that its treatment as "conduct", as distinct from a "decision" is accepted by all parties.

6. It is not suggested that the contract was ultra vires.

7. It was submitted, in the first place, that the decision to make it was not a "decision" to which s.5 relates. It was said that the decision was a prior mental process, which is to be inferred, and that, if anything, what is reviewable is the contract. In this connection it should be mentioned that at the conclusion of his argument counsel for Berkeley sought to amend his application by inserting therein, as a third decision, the making of the contract itself. Reference was made to para.3(2)(g) of the Judicial Review Act, which provides that the making of a decision includes "doing or refusing to do any other act or thing". The purpose of seeking an amendment to the application was to enable the submission at present under consideration to be met, on the hearing of the appeal, in a further way. The amendment was strongly opposed, and it was claimed that material prejudice would be suffered if it was allowed. After hearing argument, the Court disallowed it, without prejudice to the applicant's right to seek to make it, if appropriate, if the matter went for a hearing.

8. Our view is that from the making of the contract there is necessarily to be inferred a decision to make it, and that such a decision comes within s.5 (see Rice Growers Co-operative Mills Ltd. v. Bannerman [1981] FCA 211; (1981) 38 ALR 535). Sub-section 3(2) relates to a variety of acts, and para.(g) thereof, speaks generally of "act or thing". The purpose is not to make an additional and different category of happenings subject to s.5 (and s.6), but to make it plain that "decision" relates to and includes the act involved in, or immediately consequent upon the mental activity which is the decision itself. The legislature has chosen "decision" as the central criterion, but the term is not divorced from, but rather embraces the act consequent upon the decision. There was not therefore any need for the amendment which was sought.

9. It was submitted that the decision was not of an administrative character. The reason for this, so it was put, is that "administrative" is a very wide term and the Act should be regarded as limited to administrative decisions using "administrative" with the meaning it bears in the expression "administrative law". The word is not, so it was submitted, to be assimilated to the term "executive". This seems to us to be placing an unnecessary and untenable limitation on the meaning of the word. So far as one looks strictly at what is contemplated within the phrase "administrative law" one is looking to legal remedies. The purpose of the legislation is not to confine the meaning in this way but rather by different machinery to provide for legal remedies in relation to administrative decisions. This is the way the Administrative Appeals Tribunal Act 1975 works and the way the Ombudsman Act 1976 works. The intention was to give relief in relation to administrative decisions and conduct and the legislature was at some pains in providing wide definitions to this end.

10. The main weight of the argument was that the decision was not "under an enactment". This can be as well expressed, in our view, by asking whether the contract was under an enactment. The submission that it was not emphasised the general language of the grant of power "to enter into contracts". Two things were said to flow from this. One is that it was merely a general grant of power to a statutory body, one, perhaps, which might otherwise have been implied. It merely clothes the Authority with a capacity, assimilating it to a company incorporated under companies legislation, and to a natural person. To emphasise the point, it was said that one does not speak of a company contracting under or pursuant to its constating instrument, and did not do so before the recent statutory changes affecting the law of ultra vires in relation to companies.

11. To talk of the normal usage of language in that context is misleading, because the question was not posed in the area of company law (when the doctrine of ultra vires had application in that field) in the way the Judicial Review Act poses it. The analogy is defective in a number of respects. The powers of a statutory authority may be broadly expressed, but they are always restricted by reference to the scope and purpose of the statute. In some cases this may be a very considerable limitation. This involves a process of statutory interpretation, but the powers of a company were to be found by a different process of interpretation.

12. As an adjunct to this submission, it was put that the decisions to which the Act relates are those of a governmental nature, meaning thereby, we think, decisions at a high level of government, and of a nature unique to government. There is in our view no basis for thus limiting the legislation, and many decisions of the Court have proceeded otherwise.

13. It was argued that if the Ordinance regulated more closely the power to contract, it might be possible to regard the decision, if it then satisfied the terms of the power, as made under the Ordinance. This argument seems to us to concede the invalidity of the submission just discussed. The Judicial Review Act does not draw any distinction, or permit any to be drawn, between powers broadly expressed, and those expressed in more detail. The statute is a remedial one, obviously intended to be of wide scope, and within its limits very comprehensive, and it would be contrary to its purpose to read down "under an enactment" in the way suggested.

14. In an attempt to apply Australian National University v. Burns [1982] FCA 191; (1982) 43 ALR 25 (see also Australian Film Commission v. Mabey, Full Court, 12 April 1985) it is submitted that the decision was made pursuant to the form of tender provided; that there was a relevant step or proceeding between the power to contract and the contract. This is merely a partial recital of events, and does no more than relate some of the steps in the making of the contract. Burns does not apply simply because something happens on the way to the making of the decision, even if it be a shade distinctive. What it looks to is some change in legal circumstances, which makes it proper to refer the decision to the product of the change, rather than the original source of power. There was naturally an attempt in the course of argument to determine the dividing line, but in this case it is not necessary to pursue the matter. There was here a major contract, directly affecting the administration of the hospital, which can only be regarded as made under the authority to contract given by the Ordinance. Following what we have said, we see no reason for disturbing his Honour's conclusion concerning the rejection of Berkeley's tender, namely that it was conduct under s.6 of the Act.

15. In our opinion the appeal should be dismissed, with costs.