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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - locus standi - question of degree - "a person aggrieved by a decision" - decisions to permit importation of ships - importer uses non-union labour - competitive advantage from importation - whether unions and union members have standing.Administrative Law - time limit to make application for order of review - decision recorded in writing and set out in document - meaning of "furnished to the applicant" in s.11(1)(c) of Administrative Decisions (Judicial Review) Act.
Administrative Decisions (Judicial Review) Act 1977 ss.3(4), 11(1)(c)
Customs (Prohibited Imports) Regulations reg.4L
HEARING
BRISBANECounsel for the applicants: Mr R.C. Kenzie Q.C. & Mr M.W. Kimber
Solicitors for the applicants: Peter Channell & Associates
Counsel for the first respondent: Mr R.W. Gotterson
Solicitors for the first respondent: Australian Government Solicitor
Counsel for the second respondent: Mr T. Matthews
Solicitors for the second respondent: Cleary & Hoare as town agents
for Macdonnells (Cairns)
ORDER
The Court orders that:the application for orders of review be dismissed;
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
DECISION
These are objections to competency in two applications under the Administrative Decisions (Judicial Review) Act 1977. Each of the applications challenges two decisions and each decision, to allow the importation of a fairly small vessel from Singapore, is said to have been taken under Regulation 4L of the Customs (Prohibited Imports) Regulations; Regulation 4L was made on 21 December 1981: SR No.383 of 1981. After the hearing of the objections to competency - more precisely, on 22 December 1988 - I was made aware that Regulation 4L had been repealed by Statutory Rule No. 375 of 1988, made on 15 December 1988. I have considered whether to relist the matters in order to enable the parties to make submissions as to the effect of the repeal on these proceedings and, in particular, as to the operation of s.8 of the Acts Interpretation Act 1901, the question whether an objection to competency can be made good by a change in the law occurring after the objection has been filed and the practical effect, if any, of a grant of (for example) declaratory relief based on the law as at the date of hearing. Rather than putting the parties to the expense of a further hearing, I have determined to dispose of the objections as to competency without taking into account the effect of the repeal, as I am of opinion that the objections, even so considered, succeed. I must say, however, that it is hard to see why the proceedings have not become (at least in substance) academic, since the repeal of the regulation under which the decisions are claimed to have been made.2. The objections succeed on the ground that the applicants have no locus standi. It is not shown that the applicants would be likely to gain any significant benefit from success in the litigation.
3. In the first application dealt with in these reasons, No. G324 of 1988, the applicants are trade unions or, to put it more precisely, registered organizations of employees pursuant to the provisions of the Commonwealth Conciliation and Arbitration Act 1904, which have registered objects claimed to be relevant to the question of standing. Although the objects in question vary somewhat, they may be sufficiently exemplified by the objects of the second applicant, which include advancing 'the interests of the profession of engineering and those engaged therein, and to safeguard their status and character' and 'to endeavour to obtain and to maintain reasonable conditions of employment and fair rates of remuneration for its members'.
4. The applicants in No. G325 of 1988 are union members. The first applicant in that case, Mr. Davoren, is a member of the fifth applicant in No. G324, namely, the Seamens Union of Australia. He has been employed for quite some years by a business called Mason Shipping, referred to further below, but he lost his job in mid-1988 and attributes that event to the decisions attacked in these proceedings. The second applicant in No. G325, Mr. Toon, is a member of the fourth applicant in No. G324, namely, Merchant Service Guild of Australia. His position is somewhat similar to that described by Mr. Davoren in that he worked for Mason Shipping and claims to have been disadvantaged by the importation of the vessels discussed below; he was not dismissed, however, but demoted.
5. The third applicant in No. G325, Mr. Madsen, is in a position similar to that described by Mr. Davoren. The fourth applicant in No. G325, Mr. Rasmussen, is also an employee of Mason Shipping and is a member of the second applicant in No. G324, namely, the Australian Institute of Marine and Power Engineers. Mr. Rasmussen says that an agreement was made, after the importation of the vessels I have mentioned, to reduce the financial entitlements of employees of Mason Shipping; he attributes that to a loss of competitiveness of Mason Shipping as a result of the importation of the vessels.
6. In each of the two cases there were two objections to competency, one by
each of the two respondents. All the objections were
based on the same two
grounds: firstly, that the applicants had no standing to bring the
proceedings and, secondly, that the applications
were commenced too late. The
second objection seems to me to have little merit. If the proceedings were
instituted late, the delay
was only a matter of days and the cases appear
clearly to be ones in which an extension of time would be appropriate.
Locus Standi
7. To state the matter broadly, the applicants are trade unions and some of their members, who apply to the Court on the basis that decisions made to permit the importation of two vessels for use by the second respondent have assisted and will assist it in carrying on its shipping business. Since the second respondent employs no union labour, it is said that an employer such as Mason Shipping which does employ such labour has been and will be disadvantaged by the importation of the vessels in competing with the second respondent, with adverse consequences for employees who are union members, and that other results of the same sort will ensue. A particular complaint made is that the permission to import the vessels enabled the second respondent, an employer of non-union labour, to take away from Mason Shipping; which employs union labour, a Queensland Government contract.
8. The case is plainly not one in which any question of spiritual or emotional justification for standing arises; it is the economic interests of union members which are in question.
9. Since there is no doubt that a sufficient economic effect, caused by the decision attacked, is a satisfactory basis for an application under the Administrative Decisions (Judicial Review) Act, the question in the case may be said to be one of fact rather than principle. There is some dispute as to whether it is true that, considered overall, the conditions offered by employers such as the second respondent are better or worse than those offered by employers of union labour such as Mason Shipping. I do not need to resolve that dispute for present purposes but decide the case on the assumption that the applicants are, on this issue, correct; as a matter of common sense, one would expect that to be so. The real difficulty the applicants have is in showing that the importation of these two small vessels caused any loss to union members in relation to the government contract just mentioned and in showing (more broadly) that the slight proportionate increase in shipping capacity available to non-union shipping companies represented by the two vessels is of sufficient significance to give the applicants standing.
10. The general category into which the case falls is that of a challenge by one person on the basis that an administrative decision has given an economic advantage to another. Similar problems might arise as to a decision to allow a skilled worker to immigrate.
11. The competitive position of the second respondent, like that of many other business enterprises, depends on the resources, human and physical, available to it. The decisions attacked have taken nothing away from any of the applicants, but have enabled the second respondent to increase the capacity available to it by acquiring ownership of two foreign vessels. Presumably it could have increased that capacity by other means and, in particular, by charter, but there is very little evidence on that aspect of the matter.
12. I do not think there is any general rule that, if an administrative decision is made which may improve the competitive position of a business enterprise, then competing enterprises and their employees, as well as the employees' unions, necessarily have an interest to attack the decision. No such broad proposition was sought to be, or could be, supported; nor does the fact that the decision was obtained by a non-union employer and that the applicants are unions and their members necessarily give standing. It was however contended for the applicants that, in the particular circumstances of this case, the interests of the applicants are sufficient: see s.3(4) of the Administrative Decisions (Judicial Review) Act.
13. Regulation 4L of the Customs (Prohibited Imports) Regulations, referred to above, need not be set out in full: it prohibited the importation into Australia of a ship, unless by permission of the relevant Minister or an authorised officer. The word 'ship' was defined in sub-regulation 7 in such a way as to include the two vessels in question in this case.
14. The first permission complained of was given on 16 May 1988 and it related to a heavy lift vessel called the 'Molunat', which the second respondent bought in Singapore about the beginning of May 1988. The second permission, given on 10 June 1988, related to a cargo barge which was also bought in Singapore (in an incomplete state) and, after importation here, was completed, at considerable expense. The former vessel arrived in Cairns about 15 July 1988 and the latter about 11 July 1988.
15. It appears that the permission to import the 'Molunat' was given on the basis that it would be used extensively as a heavy lift vessel, its lifting capacity being about 180 tonnes. However, as I find, the principal purpose of acquisition of both vessels was for use in carrying out the government work referred to below.
16. It is important to note that that work involves a relatively small amount of carriage. Principally, the second respondent's duty is to take about 100 tonnes of cargo per week from Cairns to Thursday Island for the State Stores Board, from which island goods are barged to other islands in Torres Strait. It is plain that, considering the Australian coastal shipping industry as a whole, the advent of these vessels cannot have made much impact. There are no figures before the Court as to current tonnages carried in the Australian coastal trade, but the current Year Book shows that over 44 million tonnes were loaded in the 1985-86 year in that trade and, considering Queensland alone, about 9.5 million tonnes were loaded in the same year. Assuming current tonnages are of the same order, it appears that about one ten-thousandth of the Australian coastal trade is involved in the performance of the contract which is at the centre of these proceedings. There is no evidence as to whether there is currently excess or insufficient shipping capacity available for use in sea carriage around the coast of this country.
17. The contract to which I have referred was granted to the second respondent in pursuance of a tender lodged on 10 July 1987 at the State Stores Board. The tender was not accepted until 29 June 1988, but I am satisfied on the evidence that months before that - the precise time cannot be fixed - the second respondent understood that it would probably be granted the contract and this is what prompted the purchases referred to above. It is said that the contract was formerly held by Mason Shipping, which is part of the John Burke Group, but the evidence leaves it unclear whether the work done by Mason Shipping truly corresponds to that which was undertaken by the second respondent; it may be that the Mason Shipping contract was rather narrower.
18. The applicants' contention as to this contract is, in essence, that they have an interest because the vessels in question were imported for the purpose of use in, and in fact used in, carrying out the contract which would otherwise have gone to Mason Shipping. The significance of that is that Mason Shipping is the only shipping business at Cairns (from where the contract is carried out) which employs union labour; the others, including the second respondent, do not. It is argued that, but for the importation of these vessels, Mason Shipping would have continued to do the work and that some union members would have had the opportunity of employment in the Stores Board work with Mason Shipping.
19. Superficially, the argument is not unattractive: the physical facts are
that the vessels arrived in Cairns and work which was
formerly done by Mason
Shipping shortly thereafter began to be performed by the second respondent
using different employees; Mason
Shipping had to put labour off. But there
is, firstly, no basis on which it could possibly be found that, but for the
importation
of these vessels, Mason Shipping would have got the contract.
There were other tenderers and there is no evidence as to the way in
which the
tenderers were ranked by the State Stores Board. All that could be found in
favour of the applicants is that, if the second
respondent had not been
awarded the contract, Mason Shipping would have had a chance of obtaining it
or something like it; whether
that chance was a great or small one is quite
uncertain. Further, it is not shown that, but for the importation of these
vessels,
the second respondent could not have obtained the contract. The
evidence shows that there was a period after the award of the contract
during
which Mason Shipping supplied shipping capacity to the second respondent until
the latter's vessels were ready. It was not
proved that, if the imported
vessels had never been put into service, Mason Shipping would have been
disinclined to continue to allow
the use of its vessels. Looking further
afield, there was no attempt to show that, if the vessels in question had not
been imported
from Singapore - or if they had, for example, been lost while in
service - the second respondent would have been unable to obtain,
by purchase
or charter, other vessels elsewhere in this country for use in carrying out
the contract. That point, although one would
have expected it to be easily
enough proved one way or the other, was not investigated before me.
The Test of Standing
20. The applicants must show that they are persons aggrieved. The authorities show that it is necessary to consider whether (and, if so, to what extent) an applicant is affected in some practical way by a decision sought to be attacked. It is not enough to show that the applicant has a sense of grievance or resentment. Further, it now seems to be accepted that questions of degree arise, at least in some standing disputes. Many governmental decisions indirectly affect the interests of a large number of people, not all of whom have a right to sue under the Administrative Decisions (Judicial Review) Act. A decision favourable to one citizen may affect many others: some directly, and some more remotely. There is a point, which must be fixed as a matter of judgment in each case, beyond which the court must hold that the interests of those affected are too indirectly affected to be recognized. A case such as this, where a decision has been made which is said to be favourable to one of a group of business competitors, is an example; the decision may, by assisting one, relatively disadvantage the others and also affect the prospects of those who are in one way or another dependent on the others - as employees, shareholders, or even personal dependants. Here the applicants' cases are put on two levels: broadly, it is said in effect that anything done which strengthens a shipowner who is an employer of non-union labour relatively weakens shipowners who employ union labour, and so relevant union members and unions have an interest; more narrowly, it is said that since the Stores Board contract was awarded to the second respondent, employees of Mason Shipping who were working in connection with that contract have an interest in decisions which assisted the second respondent to obtain the new contract.
21. The current state of the authorities, so far as relevant here, may sufficiently be shown by dealing in a summary way with three recent decisions of the Full Court.
22. In Ogle v. Strickland (1987) 71 ALR 41, two priests were held to be persons aggrieved, in relation to a decision to allow importation of a film claimed to be blasphemous. Fisher J. favoured a test stated by Stephen J., requiring an assessment of the 'importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter'; note the emphasis on the question of degree. Lockhart J., with whose reasons Fisher J. generally agreed, referred with approval to authority for the view that the expression 'a person who is aggrieved' should not be narrowly construed. His Honour pointed out that the decisions impugned in that case had 'a greater effect upon the appellants than they have upon ordinary members of the public'; again, the question is made to depend on the degree to which the decisions operated on the parties' interests.
23. In Broadbridge v. Stammers (1987) 76 ALR 339, the Full Court used a test
similar to that just mentioned, but somewhat refined it by adopting the
following language:-
"...there flows from the decision...a danger and24. The passage I have quoted lays emphasis upon the extent to which the particular interest exceeds that of an ordinary member of the public, rather than the question whether it does so at all.
peril to the interests of the (respondent) that is
clear and imminent rather than remote, indirect or
fanciful, and the (respondent) has an interest in
the matter of an intensity and degree well above
that of an ordinary member of the public."
25. The same theme recurred in the Full Court's discussion of a standing
point in United States Tobacco Company v. The Minister for
Consumer Affairs
(unreported, 15 September 1988) where the Court referred with approval to
remarks of Brennan J.:-
"However, a decision which affects interests of one26. Here, it is plain that one could not find that there was a 'clear and imminent...' 'danger and peril' to the interests of any of the applicants, caused by the decision attacked, but it is I think unnecessary that a decision be able to be so described, in order for standing to exist. However, a number of circumstances have brought me to the conclusion that it is not shown that, if successful in these proceedings, the applicants will gain anything of significance, so far as the issue before the Court is concerned.
person directly may affect the interests of others
indirectly. Across the pool of sundry interest,
the ripples of affection may widely extend. The
problem...is the determination of the point beyond
which the affection of interests by a decision
should be regarded as too remote..."
27. It is true that, whether or not successful, the applicants might have decided in their favour questions of legal principle of importance to them; I have in mind, for example, the suggestion in the application that some of the applicants were entitled to be consulted by the first respondent about the second respondent's request to be allowed to import the vessels. That is not enough; the applicants must show that the particular factual context in which the questions of interest to them arise is such as to give them standing. I can see that different questions might arise if there were a recurrence of multiple small erosions of an applicant's competitive position; that is not suggested here.
28. The principal considerations against standing include that:-
1. At the time the proceedings were instituted, the Stores29. It should be added that counsel for the applicants suggested at one stage that the Court might decline finally to determine the question of competency. That would not seem to be a proper course. Objections to competency having been filed, they were set down for hearing in advance of determination of the principal issue, since it appeared to me that competency was a debatable question and one which would be quite separate from the questions to be determined if the objections failed. It appears to me that the parties had ample opportunity to place before the Court such material on the issue as they thought relevant; no application for adjournment was made.
Board contract had been awarded to the second respondent
and it was carrying the contract out. There is nothing in
the evidence to show that success in this application would
be likely to lead to a cancellation of the contract; still
less is there anything on which one could base an
assumption that, if the applicants succeeded in this Court,
the State Stores Board would then award the contract to
Mason Shipping. That possibility appears to me so remote
as to be fanciful.
2. As mentioned above, there is nothing to show that, in the
absence of the imported vessels, the second respondent
could not have obtained and carried out the contract.
3. As to the broader basis of the claim of competency, there
was no evidence as to the amount of either non-union or
union shipping capacity available, but the extra capacity
involved in the importation of these vessels is, relatively
speaking, quite small.
30. A second basis of objection to competency was, as I have mentioned, that each application was out of time. I need not discuss whether the time point is, strictly speaking, one concerning competency.
31. Because of the view arrived at on the other point, namely, one adverse to the applicants, it is perhaps unnecessary to deal with this at great length. In case the matter goes further, however, it should be made clear that I would not have given effect to the time objection, and I state my reasons.
32. The principal dates, all in 1988, are as follows:-
16 May Permission to import the 'Molunat'33. It was argued that the applicant unions had furnished to them at the meeting on 29 July, referred to above, such documents as are mentioned in s.11(1)(c) of the Administrative Decisions (Judicial Review) Act. I do not set that provision out, but assume the reader will have it by him; its general effect is to require an application to be lodged within a prescribed time, where it relates to a decision recorded in writing and set out in a document furnished to the applicant.
10 June Permission to import barge
11 July Barge arrives in Cairns
15 July 'Molunat' arrives in Cairns
29 July Meeting of applicant unions
2 September Application filed in No. G324 of 1988
6 September Application filed in No. G325 of 1988
34. The circumstances leading up to the meeting of 29 July 1988 were that Mr. M.E. Fleming, an official of the fourth applicant in No. G324 of 1988, applied on 25 July under the Freedom of Information Act 1982 for the file relating to the importation of the two vessels. On 28 July, he received a number of documents from the Department of Transport and Communications in response to that request, including documents constituting the decisions sought to be attacked. The meeting on 29 July was attended by representatives of all the applicant unions except the third applicant.
35. At the meeting, the documents obtained on behalf of the fourth applicant were produced and it was contended that in that way they were 'furnished to' the other applicant unions (other than the fourth applicant which already had them, and the third applicant which was not represented), within the meaning of s.11(1)(c).
36. One view of 'furnished to', keeping in mind its passive form, is that, if any person makes available to an applicant a document setting out the terms of the decision, that is enough: cf. Accident Insurance Mutual Ltd. v. Trade Practices Commission (1983) 51 ALR 792 at 796-7 (Lockhart J.).
37. If the respondents' contention is right, then it would be enough if (for example) the terms of the relevant decision were included as a news item in a newspaper purchased by an applicant; it is, I suppose, not uncommon for government decisions to be reported in the media. Another, rather similar example, given in the Accident Insurance Mutual Case (supra) is that of publication in a legal reporting service.
38. In my opinion, in its context, the expression 'furnished to the applicant' appears to contemplate delivery of a document specifically to the applicant rather than a general publication of it; further, it contemplates its delivery by or on behalf of the decision maker. As to the latter point, in my opinion, the two characteristics of a decision that has been made, mentioned in s.11(1)(c), are to be read together: for the provision to apply, the decision must be one the terms of which were recorded in writing and which, secondly, was set out in a document furnished to the applicant. It is possible to read the latter requirement as applying to a furnishing by any person in any circumstances, and the former as applying to a recording by any person in any circumstances; but the more natural reading is that both requirements are to be taken to be fulfilled by official action rather than otherwise and, specifically, by action by or on behalf of the decision maker.
39. On that view, the document was furnished only to the fourth applicant. It was suggested that the furnishing was to that applicant on behalf of all the others, but the documents tendered do not support that.
40. It follows that, as to all the applicants other than the fourth, there was no prescribed time under s.11(1)(c) and the requirement was of commencement within a reasonable time.
41. In my view, it is clear that the applicants commenced the proceedings within a reasonable time within the meaning of s.11(4). A certain amount of investigation and co-ordination between the parties was needed; that was done fairly expeditiously. Further, there was no reason to think that great urgency was critical, for the decisions had been made and the vessels imported before the applicants heard about any proposal to import them.
42. It follows from what is said above that the only applicant caught by the requirement of lodging the application within the prescribed period was the fourth applicant, which should have commenced proceedings on 25 August, but was eight days late. A considerable amount of evidence has been filed to suggest that the delay was very disadvantageous to the second respondent; in particular, it is said that the second respondent spent a great deal of money in reliance on the permissions to import, before the proceedings before the Court were instituted.
43. It should be noted that the argument just mentioned is inconsistent with a contention made on the issue of locus standi on behalf of the second respondent, to the effect that, permission or no permission, it was worth the second respondent's while to purchase the vessels or spend money on them. Leaving that aside, were it not for the position as to standing, time should be extended, as to the fourth applicant, to 2 September 1988, to make the application in No. G324 in time. There is nothing to suggest that it made any significant difference to the respondents that the application was commenced eight days late. The circumstances that, by the time the applicants heard of the decisions they seek to attack, the contracts had commenced, although they go against the applicants on the question of standing, make it difficult for the second respondent to argue with any conviction that the fourth applicant's delay disadvantaged it.
44. As to the individual applicants - those who apply in No.G325 of 1988 - it is not suggested that they are out of time.
45. In summary, I find that only the fourth applicant applied out of time
and, so far as relates to that applicant, I would extend
the time for
commencement of the proceedings in G324 of 1988 to 2 September 1988, if the
applicants had standing.
Summary
1. Although, in varying degrees, the applicants have some claim to have
sufficient interest to justify their being described
as persons aggrieved by
the relevant decisions, in my opinion they should not be so described. The
decisions sought to be attacked
are not shown to affect any of their interests
significantly, nor is it proved that success in the litigation would be likely
to
give them a benefit or advantage of any consequence.
2. All the applicants commenced proceedings in time except for the fourth
and, as to it, the time would be extended, were it
not for the result of the
contest on competency.
3. The applications will be dismissed and the costs, except those
relating to the objection that the applications were out of
time, must be paid
by the applicants.
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