Dardak v Minister for Regional Services, Territories & Local Government [2001] FCA 21 (9 February 2001)

Last Updated: 9 February 2001

FEDERAL COURT OF AUSTRALIA

Dardak v Minister for Regional Services, Territories & Local Government

[2001] FCA 21

ADMINISTRATIVE LAW - motion for an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act") - whether decision to approve award of tender to construct public house, a decision to which the Act applies - meaning of "decision" discussed - whether if there were a decision that decision was made under an enactment.

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5(1), 11(1)(c), 11(4)

Judiciary Act 1903 (Cth)

Financial Management and Accountability Act 1997 (Cth) s 4, 3

Financial Management and Accountability Regulations 1997 Regulation 8

WORDS AND PHRASES - "decision" - "made under an enactment"

Worthley v England; Re Excel Finance Corporation Ltd (1994) 52 FCR 69 followed

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 discussed

General Newspapers Pty Limited v Telstra Corporation (1993) 45 FCR 164 followed

Australian National University v Burns (1982) 64 FLR 166 distinguished

CEA Technologies Pty Limited v Civil Aviation Authority (1994) 51 FCR 329 followed and discussed

Hawker Pacific Pty Ltd v Freeland (1983) 52 ALR 185 discussed

Community and Public Sector Union v Woodward (1997) 76 FCR 551 discussed

Hutchins v Commissioner of Taxation (1996) 65 FCR 269 cited

Giorgas v Federal Airports Corp (1995) 37 ALD 623 cited

OTHMAN DARDAK AND OTHERS v

MINISTER FOR REGIONAL SERVICES, TERRITORIES AND LOCAL GOVERNMENT AND OTHERS

N 1071 of 2000

HILL J

9 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1071 OF 2000

BETWEEN:	OTHMAN DARDAK FIRST APPLICANT AZMI YON SECOND APPLICANT OSMAN SUMAT THIRD APPLICANT HAMDAN OSMAN FOURTH APPLICANT ARSHAD SIDEK FIFTH APPLICANT ZAINAL ABIDIN SAPTU SIXTH APPLICANT KASSIM IBRAHIM SEVENTH APPLICANT DAVID CHARLES McLANE EIGHTH APPLICANT
AND:	MINISTER FOR REGIONAL SERVICES, TERRITORIES AND LOCAL GOVERNMENT FIRST RESPONDENT CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND REGIONAL DEVELOPMENT SECOND RESPONDENT ASSISTANT SECRETARY, NON SELF-GOVERNING TERRITORIES, DEPARTMENT OF TRANSPORT AND REGIONAL DEVELOPMENT THIRD RESPONDENT COMMONWEALTH OF AUSTRALIA FOURTH RESPONDENT

JUDGE:	HILL J
DATE OF ORDER:	9 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1. The matter be listed for further directions before Hill J at 9.30 am on 16 February 2001.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1071 OF 2000

BETWEEN:	OTHMAN DARDAK FIRST APPLICANT AZMI YON SECOND APPLICANT OSMAN SUMAT THIRD APPLICANT HAMDAN OSMAN FOURTH APPLICANT ARSHAD SIDEK FIFTH APPLICANT ZAINAL ABIDIN SAPTU SIXTH APPLICANT KASSIM IBRAHIM SEVENTH APPLICANT DAVID CHARLES McLANE EIGHTH APPLICANT
AND:	MINISTER FOR REGIONAL SERVICES, TERRITORIES AND LOCAL GOVERNMENT FIRST RESPONDENT CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND REGIONAL DEVELOPMENT SECOND RESPONDENT ASSISTANT SECRETARY, NON SELF-GOVERNING TERRITORIES, DEPARTMENT OF TRANSPORT AND REGIONAL DEVELOPMENT THIRD RESPONDENT COMMONWEALTH OF AUSTRALIA FOURTH RESPONDENT

JUDGE:	HILL J
DATE:	9 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Before the Court are two motions, one brought by the applicants and the other by the respondents. They are to some extent interrelated. The first is a motion of the applicants to extend the time for them to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act"). The applicants' motion purports to be brought under s 11(c) (sic), presumably s 11(1)(c), of the Act. The second is a motion brought by the respondents that the application filed by the applicants be dismissed, inter alia, for want of jurisdiction.

2 The decision which the applicants seek to challenge is a decision to approve the tender of Murray River North Pty Ltd ("Murray River North") for the construction of residential dwellings on Christmas Island ("the Decision"). For the purpose only of setting out the background to these proceedings, the following is a summary of the facts based on the applicants' pleadings. It must be emphasised that the summary in no way reflects any findings of fact.

3 With the exception of the eighth applicant, all of the applicants were tenants of public housing on Christmas Island known as "Blocks 408 and 412 Kampong" ("the Premises"). On or about 4 January 2000, these applicants were served with notices terminating their tenancy. When they received these notices, each of them refused to vacate the Premises, denying that they were obliged so to do. Seemingly in resolution of this dispute, on or about 14 March 2000 the applicants claim that a written agreement ("the Agreement") was entered into with a Mr Bill Taylor, the Administrator of the Territory of the Christmas Islands ("the Administrator"), who it is claimed had the ostensible authority of the Commonwealth. The Agreement provided that the applicants would vacate the Premises and in exchange guaranteed forward allocation in relation to "10 new town houses to be built on the sites of blocks 401 and 402 Kampong". Pursuant to this agreement, the applicants vacated the Premises.

4 The statement of claim continues that, through a series of public meetings and correspondence, the respondents were informed of the strong preference of the public housing tenants in the Kampong area that any new housing be "of town-house style construction (rather than multi-story unit construction)". While this had been happening, tenders had been sought by the Commonwealth, the fourth respondent, for the design and construction of the public housing. The tender document entitled "Project Description - Guidelines for Tenderers", presumably reflecting this preference, provided that the Commonwealth was seeking additional public housing comprising, inter alia, "10 Family townhouse style unit development in the Kampong".

5 Five companies submitted tenders. That submitted by Murray River North was successful. On or about 30 June 2000, the decision was made to approve the award of the tender to Murray River North. The formal contract, based on the successful tender, was not entered into until 25 October 2000. The Standard National Public Works Contract, which is incorporated into the tender specifications, provided that until a formal instrument of agreement was executed by the parties the agreement in writing between the contractor and the Commonwealth for execution of the works was to constitute the contract between the parties. On 4 July 2000 the tender of Murray River North was accepted by letter from Mr Nelligan, of Gutteridge, Haskins & Davey Pty Ltd, project engineers on behalf of the Commonwealth. Whether that letter constituted a contract binding the parties prior to the date of formal contract is not a matter that has been argued.

6 The decision sought to be challenged is specified in the amended statement of claim as having been made by either of the Minister for Regional Services, Territories and Local Government; an authorised representative or delegate of the Chief Executive of the Department of Transport and Regional Development; and an authorised representative or delegate of the Assistant Secretary, Non Self-Governing Territories, Department of Transport and Regional Development (the first, second and third respondents respectively) and is said to be a decision to approve the award of the contract to Murray River North, the accepted tenderer, in relation to the construction of certain residential dwellings on Christmas Island. Murray River North is not a party to these proceedings.

7 The tender as accepted proposes the construction of "6 units in a 3-story unit development, and only 4 townhouses" (sic) as opposed to the 10 "townhouse style" units originally conceived of in the tender document.

8 Though a formal instrument of agreement was not entered into until 25 October 2000, construction work on the new public housing units was commenced in early October. As at 20 November 2000, substantial progress had been made in the construction of the Kampong units with all earthworks and groundwork having been completed, concrete slabs laid, all plumbing, water pipes and electrical infrastructure for the ground floor units having been installed. By the date of hearing the project was substantially completed.

9 Between 26 July 2000 and 6 October 2000 discussions took place between representatives of the applicants and at least some of the respondents or their legal representatives in which the applicants made known their opposition to the construction of other than "townhouse" housing on the site. On 1 August 2000 formal reasons for the decision to award the contract to Murray River North were requested by the applicants under s 13 of the Act. On 13 August 2000 the Shire President wrote to the Administrator indicating that no legal action would be filed to allow discussions to progress with a view to resolving the dispute. It was not until 6 October 2000 that the present application was sought to be lodged. No formal reasons explaining the decision were supplied.

10 The motion for extension of time to file the application proceeds on the basis that the case is one which falls within s 11(1)(c) of the Act, that is to say that before the Court can assume jurisdiction an extension of time must be granted. It is not clear to me, however, that the present is a case which falls within s 11(1)(c). It may well be that the case may fall within s 11(4) of the Act. On the face of the matter, it would seem that the applicants were not furnished with a document setting out the terms of the decision complained of with the consequence that the Court would have to consider whether to entertain an application for an order for review under s 11(4) of the Act if of the opinion that the application was not made within a reasonable time of the making of the decision complained of. There is a real difference between a case which falls within s 11(1)(c) and one which falls within s 11(4) cf: Worthley v England; Re Excel Finance Corporation Ltd (1994) 52 FCR 69.

11 In their first amended application, the applicants seek to review the Decision pursuant to both the Act and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Their ground of review is that, when making the Decision, there was a failure to take into account a relevant consideration, being the failure to have regard to the Fair Dealing Requirement under the Commonwealth Procurement Guidelines. This Fair Dealing Requirement, it is said, encompasses both the need to take into account the document entitled "Project Description - Guidelines for Tenderers" which specified ten units of "townhouse style" and the contractual obligations of the Commonwealth under the Agreement alleged to have been made between it and the applicants and constituted by the written agreement entered into by the Administrator with its ostensible authority. In the alternative, relief is sought in relation to breach of this contract.

12 The applicants handed up in court a further notice of motion seeking leave to file a further amended application as well as a further amended statement of claim. The further amended statement of claim seeks an order restraining the Commonwealth from making further payments due under the terms of the contract between itself and Murray River North. Had the applicants pressed this motion it would, in the least, have been necessary to join that company in the proceedings. Ultimately, however, counsel for the applicants announced that he did not wish to proceed with the filing of the further amended pleadings.

13 On 19 October 2000, the respondents filed a notice of objection to competency. They object to the competency of the Court on the basis that there is no jurisdiction under the Act to hear this application. They argue, first, that there is no "decision to which this Act applies" as prescribed by s 3 of that Act and, second, that the applicants have not commenced proceedings within the time prescribed by s 11(1) of the Act and no such extension should be granted. (The way that second matter is put would suggest that the respondents, like the applicants, saw the matter as one falling within s 11(1)(c) of the Act). The respondents also argue, in so far as the applicants rely upon s 39B of the Judiciary Act, that no respondent is an officer of the Commonwealth and, particularly, that the Commonwealth itself could not be an officer of itself. On the basis of this objection and the lodgment of the application out of time, the respondents move for the application to be dismissed or otherwise dealt with in their favour.

14 At the hearing, counsel for the applicants sought a brief adjournment and on resumption informed the Court that the applicants would no longer be relying on s 39B of the Judiciary Act. In making this concession counsel was well advised.

15 The result of this is that there are two issues for determination: whether there was a "decision to which this Act applies" for the purposes of the Act and, if so, whether an extension of the time for lodging an application for an order of review (if s 11(1) applied) should be granted, or whether the Court should be of the opinion that the application was not made within a reasonable time after the decision sought to be impugned was made (if s 11(4) applied). As already noted there is a connection between these two matters. Clearly no extension of time would be allowed by the Court to bring an application (assuming the case fell within s 11(1)) if the Court has no jurisdiction to entertain it.

16 It is appropriate to say here that on the facts it seems that the applicants for some considerable time stood by and took no proceedings, in circumstance where the building of the units the subject of the accepted tender proceeded apace and also in circumstances where the setting aside of the decision might materially affect persons not party to the proceedings. I do not wish to be thought to be critical of an attempt to negotiate a satisfactory conclusion outside the confines of the Court. However, the present is a case where the delay in bringing proceedings under the Act has a considerable impact. If the matter does properly fall within s 11(1)(c) of the Act, I would for this reason alone most likely not, in the circumstances of the present case, grant an extension of time to bring the proceedings. However, if the proceedings in respect of which extension of time is sought are not within the Court's jurisdiction, in any event, that tentative view becomes overwhelming. An extension of time would be fruitless. A different issue might arise if the matter is one that properly falls within s 11(4): Worthley v England (supra).

17 It is thus appropriate to consider at this point the question whether the Court does have jurisdiction under the Act to hear the application. Depending on the outcome of this issue, a question may arise as to whether, so far as the pleadings of the applicants rely on the general law of contract, the Court has accrued jurisdiction to hear the applicants' contract claim.

JURISDICTION UNDER ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT

18 Sub-section 5(1) of the Act provides that:

"A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds ..."

19 The phrase "decision to which this Act applies" is defined in s 3 of the Act as follows:

"Decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1."

20 The respondents make two submissions. The first is that there is no "decision" as that word is properly to be understood under the Act and, the second is that, if there is, that decision is not one "made ... under an enactment". The applicants submit both that there is a "decision" in the relevant sense, and further that it is a decision made under the Financial Management and Accountability Act 1997 (Cth) ("the FMA Act") as supplemented by the Financial Management and Accountability Regulations 1997 ("the Regulations") made under that Act.

21 Under the heading "Promoting efficient, effective and ethical use of Commonwealth resources", s 44 of the FMA Act provides:

"(1) A Chief Executive must manage the affairs of the Agency in a way that promotes proper use of the Commonwealth resources for which the Chief Executive is responsible.

(2) If compliance with the requirements of the regulations, Finance Minister's Orders, Special Instructions or any other law would hinder or prevent the proper use of those resources, the Chief Executive must manage so as to promote proper use of those resources to the greatest extent practicable while complying with those requirements.

(3) In this section:

proper use means efficient effective and ethical use."

22 Section 53 of the FMA Act then provides that the Chief Executive may delegate certain powers to officials in any agency as defined.

23 Regulation 8 of the Regulations provides:

"(1) An official performing duties in relation to the procurement of property or services must have regard to the Commonwealth Procurement Guidelines.

(2) An official who takes action that is not consistent with the Guidelines must make a written record of his or her reasons for not doing so."

24 So far as is said to be relevant the Commonwealth Procurement Guidelines provide that agency staff involved in procurement must "always take care to behave in accordance with the law, with agency rules ... and with conditions of contract". This was referred to by counsel for the applicants as the "Fair Dealing Requirements". The applicants argue that these requirements prescribe that in recommending the tender consideration is required to be given to the terms of the Agreement as well as the terms of the tender document.

WAS THERE A RELEVANT DECISION?

25 The meaning of the word "decision" in the present context was authoritatively considered by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. His Honour pointed to several "textual and contextual considerations" in the interpretation of the word "decision" as used in s 5 of the Act. His Honour said (at 335-337):

"The fact that the [Act] is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word `decision'.

...

Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to a `decision of an administrative character made ... under an enactment' indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J, `a determination effectively resolving an actual substantive issue'. Thirdly, s 3(3), in extending the concept of `decision' to include `the making of a report or recommendation before a decision is made in the exercise of a power', to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that `decision' comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s 3(5) suggests that acts done preparatory to the making of a 'decision' are not to be regarded as constituting `decisions' for, if they were, there would be little, if any, point in providing for judicial review of `conduct' as well as of a `decision'.

...

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration."

26 There is a difficulty in describing the Decision here as "final or operative and determinative" in that no person's rights are, in any sense, determined by it. One may ask what the situation would be had the person who made the decision decided not to proceed with the contract immediately after making the decision. The answer would appear to be that the decision itself affected no rights at all. But it is not necessary to reach a final conclusion on that question for the real issue in the present case is the composite one, namely whether the Decision if there be one is "made ... under an enactment".

WAS THE DECISION "MADE ... UNDER AN ENACTMENT"?

27 The leading authority and the authority upon which the respondents rely is the decision of a full Court of this Court in General Newspapers Pty Limited v Telstra Corporation (1993) 45 FCR 164. In that case, the applicants had expressed to Telecom (as the respondent to those proceedings was then known) an interest in tendering for the printing of telephone directories. However, Telecom entered into contracts with another printer without putting the contracts out to tender and without otherwise giving the respondents a chance to quote a competitive price. The applicants sought, inter alia, an order of review pursuant to the Act in relation to the actions of Telecom. Various decisions reviewable under the Act were allegedly made including the decisions particularised (and recorded in the joint judgment of Davies and Einfeld JJ) as follows:

"...

(vii) the decision by the Board of AOTC (Telecom) on 7 August 1992 to enter into directory printing contracts with Pacific Magazines & Printing Limited and McPhersons Limited for both long term and interim agreements;

(viii) the printing agreements entered into between AOTC and Pacific Magazines & Printing Limited and McPhersons Limited ..."

28 Davies and Einfeld JJ, with whose reasoning Gummow J agreed (at 194-194), said (at 169):

"The [Act] provides the structure for judicial review, which is review, not of acts taken under the general law applicable in the community, but of acts which have statutory effect because of the provisions of a federal enactment. Thus, a `decision' taken under a federal enactment is an action or a refusal to act which, by virtue of the statute, affects legal rights and/or obligations. A step which has no such effect is not a reviewable decision for the purposes of s 5 of the [Act]. And conduct is not reviewable under s 6 of the [Act] unless it is `conduct for the purpose of making a decision to which this Act applies'. The ambit of the jurisdiction is limited to decisions as defined and conduct leading to the making of such decisions."

29 Their Honours then cited the passage from ABT v Bond extracted above, saying that the reference to "administrative decisions affecting rights, interests and legitimate expectations" reflected the concept of procedural fairness in the making of administrative decisions, as expounded in the High Court decision of Kioa v West [1985] HCA 81; (1985) 159 CLR 550. The words "under an enactment" and therefore the scope of operation of review under the Act had to be seen in the light of that duty. Their Honours continued (at 172):

"The [Act] is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment. Issues concerning the relevant factors to be taken into account, irrelevant factors which should not be taken into account, improper purposes, and the law to be applied will be matters to be decided having regard to the provisions of the enactment under which the decision is made, and the object and purposes of that enactment."

30 Their Honours found that none of the alleged decisions were decisions that fell within the scope of the Act. Their Honours said at 173:

"In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provision for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the [Act] had no application to the conduct or to the alleged decisions."

31 Reference was also made in the course of argument to General Newspapers to Australian National University v Burns (1982) 64 FLR 166. That case was concerned with the question whether a decision to terminate the appointment of a professor of the appellant university was one that was "made ... under an enactment", namely the Australian National University Act 1946 (Cth). The full Court there found that the decision was not one made under an enactment but rather one under the terms of the contract of service entered into between the university and the respondent professor. That case and its reasoning are only of limited use here as it was concerned with the distinguishable situation where, at the time the purported decision was made, there was relevantly a contract on foot: see CEA Technologies Pty Limited v Civil Aviation Authority (1994) 51 FCR 329 at 336. In this as well as in other cases, to which reference will shortly be made, the contract came into existence only as a consequence of the alleged decision so that it was not a question of determining whether the decision purportedly made falls under the enactment which authorised entry into the contract or the decision was made under the terms of the contract itself, but whether the decision was authorised or required by the enactment, so that it can properly be said to have been made under it.

32 Nevertheless ANU v Burns, General Newspapers and subsequent cases suggest that the question of whether particular conduct or an alleged decision can be characterised as having been made under a particular enactment must be determined not only in terms of the nexus between the Act and the decision but also with reference to the nature of the impugned decision and whether it is one with which the Act can properly be said to be concerned; for instance, whether it is one which by virtue of the enactment raises issues for which regard must be had to the enactment, such as whether irrelevant considerations were taken into account or whether a discretion was exercised for an improper purpose, or whether it is one governed by the terms of a contract. Counsel for the respondents submitted that what General Newspapers implicitly says is that you must go to the source of the power conferred by statute and that not only must the enactment be a source of the power exercised, it also cannot be merely of a general nature. However, it is not necessary to go so far and I do not.

33 The dicta of Mason CJ in Australian Broadcasting Tribunal v Bond and of the full Court in General Newspapers have been applied in a series of subsequent cases. The Court was taken to several of these cases, in each of which it has been found that the decision not to enter into a contract with a particular party was not a decision "made ... under an enactment". The case Hawker Pacific Pty Ltd v Freeland (1983) 52 ALR 185 concerned the decision of the Commonwealth to award a contract for the supply of five aircraft to a rival of Hawker Pacific. Though there had been no public call for tenders, the Commonwealth had sought tenders from four companies of which Hawker Pacific was one. Ultimately, one of Hawker Pacific's rivals was successful; the contract was awarded to that company and a "purchase order" for the aircraft was prepared that same day. Hawker Pacific sought an order of review of the decision of the Commonwealth under the Act on grounds relating to an alleged disparity between, on the one hand, the specifications of the aircraft which they contracted for the supply of and, on the other, either the specifications in the original invitation to register an interest or those in the ultimately successful tender. Hawker Pacific argued that there was a "decision" to award the contract to the rival of Hawker Pacific and that this was a decision "made ... under an enactment" by virtue of the relevant Finance Regulations which set out procedures for entering into contracts for supplies. In relation to the purported decision to award the contract, Fox J said at 189:

"The Finance Regulations provide various conditions precedent that need to be satisfied before a contract can be awarded. The power to contract is an inherent prerogative or governmental power which is regulated by those Regulations ... The decision to award a contract is an exercise of this power and is therefore not made under an enactment (see New South Wales v Bardolph [1934] HCA 68; (1934) 52 CLR 455 at 474-5, 496 and 508).

Compliance with the Regulations is but a step leading to the awarding of the contract. I do not accept the applicant's proposition that because the Regulations regulate the power to contract they were the source of a `valid power' to contract."

34 A similar argument was rejected in Community and Public Sector Union v Woodward (1997) 76 FCR 551. In that case, the applicant union sought to challenge a change in government policy with respect to the payroll deduction of union subscriptions effected or sought to be effected by the second respondent, the Minister for Industrial Relations. The respondents challenged the competency of that application on the basis that the policy determination was not a "decision" which was "made ... under an enactment". In turn, the applicants submitted that the determination was a decision that was made under the Finance Regulations 1942 enacted pursuant to the Audit Act 1901 (Cth). Branson J was of the view that the determination was not a decision in that it did not authorise or require the determination challenged. In argument, counsel particularly drew the Court's attention to the following passage at 555:

"The Audit Act is concerned principally with the establishment of procedures for regular and efficient dealings with public moneys and securities, and for the audit of public accounts."

This, it was submitted, is equally applicable to the FMA Act and the Regulations made pursuant to it which the applicants now allege the Decision was made under.

35 Another case relied upon in argument was CEA Technologies Pty Limited v Civil Aviation Authority (1994) 51 FCR 329. There, the contracts were for the "supply of a Tower Data Processing and Display System and associated Surface Movement Radar Sensor and the provision of spare parts, training and maintenance services" and "the installation at Sydney (Kingsford Smith) Airport of that System and Sensor". The applicant had argued that the decision not to award the contracts to the applicant was a decision "made ... under an enactment" by virtue of the Civil Aviation Act 1988 (Cth) which established and, in ss 9 and 10, set out the functions of the respondent. The applicant submitted that, in entering into the contracts, the respondent was carrying out a fundamental and or central function conferred by that Act, namely to develop, implement and comply with safety standards. Neaves J (at 337) did not accept this argument. His Honour said:

"The argument advanced by counsel for the applicant in the present case, however, requires that an answer be given to the question whether the presence in the Civil Aviation Act of ss 9 and 10 compels the conclusion that the decisions by the respondent to enter into the relevant contracts are properly to be characterised as decisions made under those provisions. In my opinion, that question must be answered adversely to the applicant. Sections 9 and 10 of the Civil Aviation Act do no more than set out the functions of the respondent. It cannot, in my opinion, be properly said that they required or authorised, in any relevant sense, the making of the particular decisions in question and gave statutory effect to them or that they relevantly made provision for the making of the decisions."

36 Other cases include Hutchins v Commissioner of Taxation (1996) 65 FCR 269 and Giorgas v Federal Airports Corp (1995) 37 ALD 623. In the former, a majority of the full Court applied General Newspapers to hold that the exercise of a vote by the Commissioner of Taxation at a meeting of creditors was not a decision under an enactment. In Giorgas, Cooper J held that, where a general power to enter into a contract is conferred by an enactment, the statute does not give force and effect to the decision to contract and therefore is not a decision made under that Act.

37 Counsel for the applicants argued that the present case is distinguishable from General Newspapers in that in that case the purported decision was not clearly authorised by the enactment whereas in the present case the Decision was. It is argued that the Regulations and the Commonwealth Procurement Guidelines set out a detailed prescription of the method by which the decision is to be authorised which goes beyond the mere conferral of capacity to enter contracts conferred by the Australian Telecommunications Corporation Act 1989 (Cth) and the Corporations Law in General Newspapers. They argue that in General Newspapers the Regulations and Procurement Guidelines related to the authorisation of the Decision. They contained the detailed prescription, a set of tightly prescribed criteria for the method of decision and the criteria by which the decision is to be made.

38 There are two problems with the submission. First, it is not clear to me that the Regulations and the Commonwealth Procurement Guidelines do, in fact, prescribe a method of authorisation in a detailed way as suggested by the applicants. The FMA Act does no more than impose an obligation on a Chief Executive to manage the affairs of an agency in a particular way, relevantly here, in compliance with regulations. The Chief Executive is permitted to delegate his or her powers. It is hard to see that these provisions require or authorise the acceptance of a tender. Nor is such requirement or authorisation to be found in the Commonwealth Procurement Guidelines, which do no more than require that behaviour be in accordance with law. Secondly, there is nothing in General Newspapers that suggests that the distinction sought to be made is a relevant one. The relevant principle in that case is that the decision sought to be challenged must be one which is authorised or required to be made by the enactment. If it is, then the particularity of that authorisation or requirement will be immaterial. If it is not, then no amount of irrelevant particularity will bring the case within the Act.

39 It may, in the present case, be said that the obligation in s 44, and the power of delegation in s 53, or for that matter the Regulations and Guidelines, are but conditions precedent to the ultimate entry into a contract. In that sense the case is not far removed from the situation that Fox J faced in Hawker Pacific, where his Honour found that case to be one involving "but a step leading to the awarding of the contract" and the enactment to be one which "regulate[s] the power to contract".

40 In my view the present case is not distinguishable from General Newspapers. The Decision here, like the decision in that case, was not one made under the enactment but one where the enactment had facilitated the making of the decision by giving the decision-maker, as delegate, the capacity to enter the contract. The Regulations and the Procurement Guidelines may be said to impose a general standard of conduct in relation to dealings generally. They did not, however, prescribe a method of authorisation of the decision, let alone actually authorise or require the decision. In my view the so called decision of which the applicants complain was not a decision made under an enactment and in consequence the Court has no jurisdiction to deal with the application to the extent that it is brought under the Act.

WHAT ORDERS SHOULD BE MADE?

41 Before the present motions can be finalised there are two outstanding issues in respect of which the Court should hear further submissions. The first of these has already been flagged. It may be that the parties are able to agree whether the case is one which falls within s 11(1)(c) or rather within s 11(4) of the Act. It may also be that additional evidence is necessary. If the case does fall within s 11(1)(c) then I would refuse to extend the time within which the application under the Act could be brought to the Court. The applicants' motion would thus be dismissed with costs. If the case is one that falls within s 11(4) the applicants' motion would have been an unnecessary step in the proceedings and would need to be dismissed for that reason. It may then be necessary to hear argument as to costs on that point.

42 More importantly, however, is the question whether the consequence of there being either no application before the Court containing a claim under the Act (a federal claim) because leave to extend the time for bringing an application out of time was not granted or, if s 11(4) applies, there being a case before the Court, it is struck out to the extent of the claim under the Act, is that the applicants' case in contract remains to be decided as within the pendant or accrued jurisdiction of the Court.

43 Some brief argument was addressed to this question. However, both counsel requested that they be given leave to argue the question once the present judgment is delivered. In the circumstances, and particularly as the matter appears to be the subject of conflicting decisions, I agreed to this course.

44 Accordingly I do not at this stage propose to make any formal orders other than that the matter be listed for directions on a day 7 days from the date of delivery of this judgment so that a timetable for further submissions may be arranged.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 9 February 2001

Counsel for the Applicants:	H Stowe
Solicitor for the Applicants:	Sweeney Waterford
Counsel for the Respondents:	A Robertson SC
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	15 December 2000
Date of Judgment:	9 February 2001