Re: Allen John Evans and: Copley Howard Friemann, Trevor Noel Beadle, Cyril Montague Bentley, David Bertram Fitzpatrick, Darryl Burnett Mischlewski, Peter Norman Nicholls, Ronald Franklin Pickering, Reginald Charles Wray being the members for the time being of the Board of Examiners of Patent Attorneys

(1981) 53 FLR 229

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(Judgment by: Fox ACJ)

Between: Re: Allen John Evans
And: Copley Howard Friemann, Trevor Noel Beadle, Cyril Montague Bentley, David Bertram Fitzpatrick, Darryl Burnett Mischlewski, Peter Norman Nicholls, Ronald Franklin Pickering, Reginald Charles Wray being the members for the time being of the Board of Examiners of Patent Attorneys

Court:

Judge:
Fox ACJ

Hearing date: 28-29 May 1981
Judgment date: 26 June 1981

Melbourne

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Judgment by:
Fox ACJ

APPLICATION.

By way of a notice of objection to competency a challenge to the jurisdiction of the court was dealt with as a preliminary issue, pursuant to O. 54, r. 4 of the Federal Court Rules.

The applicant, Allen John Evans in October 1980 sat for the written examinations required of a candidate for admission as a Patent Attorney. He was examined in three subjects and in December 1980 received a written notification from the Secretary of the Board of Examiners showing that he had passed in one subject and had failed in two.

The applicant immediately wrote a letter to the Secretary requesting that he be furnished with a statement under s.13 of the Administrative Decision (Judicial Review) Act 1977, as amended, in respect of the subjects in which he had failed, setting out "findings on material question of fact, referring to the evidence or other material on which those findings were based, and giving reasons for the decision". On the same date he sent two notices, one to the Secretary of the Board, the other to the Commissioner of Patents. The former was an application for a report as to the reasons for his failure in the two subjects (see regn. 17 of the Patents Regulations) and the latter, purporting to be made under s.30 of the Patents Act 1952, was a request for copies of his answers to the papers in which he failed. Lengthy reasons for his failure were provided. He was told that s.30 was inappropriate to secure answers to examination papers. He made a further request to the Commissioner under s.29(2) of the same Act for his answers and was told that this provision was also inappropriate. On 4 February 1981 he made a request to the Board to furnish him with copies of his answers in the subjects in which he failed, and this request was refused by letter dated 6 February.

On 9 February 1981 he applied to this Court under the Administrative Decisions (Judicial Review) Act for an order of review. The relevant part of the application reads as follows:

"1.

Application to review the decisions of the respondents:

(a)

that the applicant be given a "fail" result in the examination in each of the subjects: '(d) Preparation and Specifications' and '(g) Patent Attorneys' Practice', being two of the prescribed examinations conducted by the respondents in accordance with the Patent Attorneys Regulations 1954 in October 1980; and

(b)

that the applicant is not entitled to receive a copy of each of his answers to each of the examination papers in each of the said subjects."

The respondents to the application were (and are) the members of the Board of Examiners. Counsel have told me that they or some of them are also the only examiners for the Board.

A notice of objection to competency was filed, and it is this which I am now hearing, at the directions stage. In relation to paragraph (1)(a) set out above, the notice claimed that the matters referred to were not:

(a)

decisions;

(b)

administrative decisions; and

(c)

were not made under an enactment, within the meaning of the Statute.

The objection to paragraph 1(b) is similar but does not assert that the matter referred to is not a "decision".

An objection to competency goes to the jurisdiction, or power, of the Court to entertain the matter. This is acknowledged by form 57 to the Rules of the Court. The objection in no way goes to the legal merits of the case. Section 8 of the Administration Decisions (Judicial Review) Act 1977 says "The Court has jurisdiction to hear and determine applications made to the Court under this Act". The key sections of the Act relating to subject matter are s.5 (applications for review of decisions), s.6 (applications for review of conduct related to the making of decisions) and s.7 (applications in respect of failures to make decisions).

It is an essential ingredient of applications under each of sections 5, 6 and 7 that there be a "decision to which this Act applies". This phrase is defined in s.3(1). It can however be misleading to regard the challenge to competency as related simply to the terms of the definition. The challenge is that the facts do not satisfy the basic requirements of an application under the section or sections relied on. These requirements, of which the defined phrase is part, are to be seen in context, and sub-sections (2) and (3) of s.3 are part of that context. The argument before me tended to examine the definition in the abstract, and as detached from those sections, but this is wrong.

I believe it to have been the common understanding in this case that it is s.5 which is relied on. It will be sufficiently apparent from what I will say that the result would be the same if it was s.6 which was relied on. Section 7 is not applicable.

The Act, as with other Acts passed in recent years, has as its essential purpose a system of review of administrative action, at once more comprehensive and more readily attainable than that available through the older remedies. Lockhart J discussed the historical aspect, and the relationship between the different Acts in Riordan v Connor (5 March 1981, unreported) and in Hamblin v Duffy (15 April 1981, unreported); see also Lane, The Australian Federal System 2nd edn. 1012-1015.

It was submitted that the Act was procedural only, but its operation cannot thus be confined. The definition in s.3(1) is as follows:

"In this Act, unless the contrary intention appears-

"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."

Sub-sections (2), (3) and (5) of s.3 explain and expand the meaning of "decision". Sub-section (5) relates to "conduct engaged in for the purpose of making a decision . . . . " This is the subject with which s.6 deals, and the sub-section does not therefore require particular consideration here. Sub-sections (2) and (3) of s.3 are as follows:

(2)

In this Act, a reference to the making of a decision includes a reference to -

(a)

making, suspending, revoking or refusing to make an order, award or determination;

(b)

giving, suspending, revoking or refusing to issue a licence, authority or other instrument;

(c)

issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)

imposing a condition or restriction;

(e)

making a declaration, demand or requirement;

(f)

retaining, or refusing to deliver up, an article; or

(g)

doing or refusing to do any other act or thing,

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

(3)

Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

Sub-section (3) is not invoked in this case, but of course the miscellany of matters set out in sub-section (2) is of relevance to the meaning to be given to the definition in sub-section (1) of "decision to which this Act applies". Each of the critical terms in that definition derives colour and meaning from the others, but, following the argument, I will so far as practicable go to each in turn.

The meaning of "decision" has been considered in Director-General of Social Services v Chaney (1980) 31 ALR 571, Hamblin v Duffy (supra) and Riordan v Connor (supra), but it seems desirable that, having in mind the facts of the present case, I express my understanding of relevant terms in my own language.

The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation. There are many variables. In the case of an unincorporated body, such as the Board of Examiners of Patent Attorneys, its decision, while reflecting the antecedent thinking of some or all of its members, is reached in accordance with its constitution.

In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. On the other hand a decision is not the same as a conclusion; the former normally has an objective, while the latter is more commonly associated with the end result of a process of thinking without the formation of an intention concerning future conduct. It would not be possible, even if the attempt were wise, to substitute a judicial exegesis for the word the legislature has used. For present purposes at least, it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons. The list in s.3 (2) seems to place emphasis on the manifestation, that is, on the conduct from which the making of a "decision" will be presumed. In this sense the sub-section could be said to be largely evidentiary in effect.

The qualifications for registration as a patent attorney are contained in s.133 of the Patents Act 1952. The present applicant, I am informed, is a legal practitioner and in its application to such a person the section requires that he (or she) shall have passed "in such of the subjects of the prescribed examination as the regulations require to be passed by legal practitioners" (s.133(3)(c)(i)).

The Board of Examiners is established by the Patent Attorneys Regulations, passed under the Act. Its constitution is provided for in regn. 5. Regulation 10(1) is in the following terms:

"The prescribed examination for the purposes of paragraph (c) of sub-section (3) of section 133 of the Act is an examination conducted by the Board in accordance with these Regulations."

Regulation 11(1) deals specifically with the subjects a legal practitioner has to pass. Ensuing regulations show clearly that the Board has a direct responsibility for determining the scope of the subjects for examination, for recommending books for study, and for deciding on what dates, in October, November or December of each year, examinations are to be held. Applications for admission as a candidate are to be made to the Board. It is to appoint examiners and is to give such instructions as it considers necessary in relation to the setting of the papers and the examination of the answers (sub-regns. (1) and (2) of regn. 16). Regulation 17 is as follows:

"Where a candidate who has failed to pass an examination in any subject, makes, within one month after being notified by the Board that he has failed in the subject, application in accordance with Form 3 for a report as to the reasons for his failure, the Board may, in its discretion, furnish the reasons to the candidate."

A certificate that a candidate has passed in prescribed subjects is to be issued by the Board, on application to it.

It was urged on behalf of the respondents that there was no "decision" in the present case, because all that happened was that individual examiners exercised judgment in assessing the candidate's papers, and the Board notified the result. I do not accept this submission. An exercise of judgment is of course in no way inconsistent with a decision being reached. Moreover, there was in my view a decision by the Board, as such. It had the powers and duties in relation to examinations to which I have referred, and by clear implication had the duty of deciding whether a candidate failed or passed. At what precise point of time or in what manner, it came collectively to a decision that the applicant had failed in two subjects does not appear, and does not matter for present purposes, but it was the Secretary of the Board which notified the results to the applicant Depending to some extent on internal administrative arrangements, the role of the individual examiners is probably best regarded as one of assessing, and passing on their assessments to the Board (cf s.3(3) above). Whatever the arrangements, the final and effective decision is with the Board.

I come to the words "administrative character". It is desirable at this stage to mention several aspects of the constitutional position. The Act is tied to the legislative power of the Commonwealth through the reference to "an enactment", which is defined to include subordinate legislation as well as Acts of the Parliament. As the definition includes Ordinances of the Territories, and regulations thereunder, the legislative power rests in part on s.122 of the Constitution, and not wholly on the powers in Chapter III of the Constitution. The power to vest jurisdiction in a court, this Court, rests principally on Chapter III and in particular on s.76(ii) of the Constitution, which, as applied to this Court, enables a law to be made conferring original jurisdiction in a matter "arising under any laws made by the Parliament". In part, because of the inclusion of the laws of the territories, the power also rests on s.122.

Because it will be exercising the judicial power of the Commonwealth under Chapter III, the Court cannot be given the function of reviewing on their merits, that is to say their administrative or policy merits, decisions which are subject to review. The Court has to apply pre-determined legal standards, being those prescribed or invoked by the Administrative Decisions (Judicial Review) Act. There has long existed, at least as far back as the days of Montesquieu and of Locke a concept of the division of the powers of government into the legislative, the judicial and the executive, or the administrative. The Constitution recognises this concept by its separate consideration of them, particularly in sections 1, 51, 61 and 71, and to a large extent adopts the distinction. The constitutional division is itself a difficult one, and it has been discussed at great length in decisions of the High Court and by the Privy Council in Attorney General of the Commonwealth of Australia v The Queen (1956) 95 CLR 529.

Administrative law (a term itself not capable of definition) and judicial review of administrative action have been aspects of the law which have been much discussed and developed in the last thirty years and more. In general, the emphasis has been upon the development of the prerogative writs, and the injunction and declaration as procedures for controlling, or reviewing administrative action. Until very recently the result has been a very untidy, technical and haphazard one. Ironically, the judicial development of the law was commencing to present a coherent and sensible scheme at about the time the present legislation came into force, and doubtless, in the many situations where the common law will still be applied, it will continue to develop along those lines. The significant point for present purposes is, however, that a broad distinction has been maintained between the administrative, the legislative, and the judicial, - without further categories.

It has in fact proved very difficult, virtually impossible, to arrive at criteria which will distinguish in all cases the three concepts I have mentioned. They at times overlap: "The borderland in which judicial and administrative functions overlap is a wide one, and the boundary is the more difficult to define in the case of a body such as the appellant board, the greater part of whose functions are beyond doubt in the administrative sphere" (per Lord Simonds, speaking for the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Limited [1949] AC 134, 148). Sometimes the category into which an act or function will be placed will be decided in part on historical considerations or on the source of power or the nature of the body to which it is given. In the judicial sphere, there are many incidental functions, essentially of an administrative nature, and even of a legislative nature which are regarded as being within the judicial power of the Commonwealth, because they are incidental to, or incidents of, the exercise of judicial power. Many administrative tribunals are, to a greater or less extent, required to act judicially. Parliament has a power to try and punish for contempt of the Parliament.

In the present Act characterisation of the activity remains necessary. There can be little doubt that the trichotomy to which I have referred is intended to be maintained (cf Glenister v Dillon (1976) VR 550, and see de Smith, Judicial Review of Administrative Action, 4th ed. 68) and that decisions properly to be regarded as of a legislative or judicial nature are excluded. This means that there can be no judicial review under the Act of subordinate legislation, or of judicial decisions, and that other procedures, such as the prerogative writs, will have to be resorted to for that purpose.

The Act refers to decisions of an administrative character. It is the character of the particular decision which is to be examined. Often this will present no difficulty. On the other hand, the words used do suggest an analytical approach, and this may present serious difficulties, and, on one view, a major restriction on the ambit of the Act. The trouble, already noted in the constitutional cases, is that the concept of the "administrative" is not by itself clear and distinctive, and cannot in practice be treated as if it is. It is necessary to have a reasonably clear idea of the other concepts with which it is to be contrasted. There will be difficulties in this regard even if there is adherence to the three-fold basic division already mentioned. But what if other functions are brought into the contrast? Should it be said, in the present case, that the decision was more of an educational nature, or that it was a decision respecting examinations, and no more?

Schedules 1 and 2 to the Act are a helpful guide to the intended scope of the Act, because they provide a basis for inferences. Particularly is this so with regard to Schedule 2 which relates to decisions which are exempt from the operation of one section of the Act (s.13), which gives a right to aggrieved persons to obtain information and reasons from the person or body which made the decision under attack. Section 13(11)(a) similarly points to the fact that decisions of the Administrative Appeals Tribunal are in general subject to the Act. Turning to the list of authorities named in paragraph (k) of Schedule 2, but for the purpose only of illustrating the problem under discussion, one could ask whether a decision of a manager of the Commonwealth Trading Bank was a banking decision or an administrative decision, or, if both, on what basis. Would a decision by the Commonwealth Serum Laboratories Commission that a serum be prepared in a certain way be a technical or scientific decision, or would it be an administrative decision for the purposes of the Act? Paragraph (p)(i) of the same Schedule exempts from the operation of s.13 "decisions under the Air Navigation Act (1920) that relate to aircraft design, the construction or maintenance of aircraft or the safe operation of aircraft or otherwise relate to aviation safety." If a strictly analytical approach were to be adopted there would, it seems, be a hopeless proliferation of categories.

It should I think be accepted that in general the decisions of non-judicial tribunals (established under an enactment) are intended to be subject to the Act, yet it is common for these tribunals to have a duty at one or more stages to act judicially. Is a decision relating to their "quasi-judicial" procedure to be outside the scope of the Act?

Considerations such as I have mentioned tend strongly against a closely analytical examination of each decision sought to be reviewed. The Act is a remedial one, and should so far as reasonably possible be given a wide construction and application. I have mentioned the key phrase "decision of an administrative character. . . ." as suggesting the narrower and more technical approach, but I think that there are two factors in the construction of these words themselves which can be seen as tending the other way. The first is that it is the decision, rather than its subject matter, which has to be looked at. The hypothesised decision of the bank manager may be to borrow or lend money, or accept a certain security, but the decision itself is part of the process of administering the bank's affairs. The second matter flows from what I have just said, namely that "administration" is not as a rule, if ever, an isolated act; it is part of a process; perhaps a long process.

I believe that it is possible to become too theoretical about the definition. As I have already said, it should be read as a whole. It should be appreciated that a reviewable decision will be made "under" an "enactment". The First Schedule does, and the regulations can (s.19(1)), exempt decisions from the operation of the Act where it is thought as a matter of policy that this should be done. The fact that the Court is competent to deal with the matter does not at all mean that an order will be made. There are declared or ascertainable legal standards, a breach of which has to be established, and the Court still has a discretion as to whether it will grant relief, and, if so, what relief (s.16). It cannot embark upon a performance of the function under review.

In the present case, the decision to fail a candidate in an examination could be classified in several ways, but in my opinion it is relevantly classified as an incident in an administrative process, and as of an administrative character. The role of the Board of Examiners is one of carrying out a purpose of the Patents Act by ensuring that there are specially qualified people to deal with applications that arise under it. The process of arranging for, and promulgating the results of, examinations are on any view distinctly administrative, as are some aspects of conducting them.

In favour of the view that the decision should not be subject to the Act it can be said that matters concerning examinations, even when conducted by public bodies established by statute, have not heretofore been the subject of judicial review by way of prerogative writ, injunction or declaration (see, for example, Ex parte Forster; re University of Sydney 63 SR(NSW) 723; Thorne v University of London [1966] 2 QB 237, and de Smith, Judicial Review of Administrative Action, 4th ed. 30, 504(n)). This argument does not, however, tell against this Court having jurisdiction to entertain the present application under the present Act. Plainly it will not itself become involved in the examination process. Whether or not it would decline jurisdiction in a University case, under s.10(2) (b)(ii) because resort could be had to a Visitor is a possible question for another day.

There seems to me to be no doubt that the decision of the Board was made "under an enactment". "Enactment" is defined in s.3(1) to mean, inter alia, a regulation passed under an Act. The term "under" is, as I have said, used in the part of the constitution, (s.76(ii)) upon which the legislative power principally rests. In R v Commonwealth Court of Conciliation and Arbitration ex parte Barrett (1945) 70 CLR 141 the expressly non-exhaustive test used in relation to the term in s.76(ii) was to ask if the right or duty owed its existence to Federal law, or depended upon Federal law for its enforcement (per Latham CJ at 154; see also Felton v Mulligan (1971) 124 CLR 369). In the present Act the word has a similar meaning, which I believe can be taken as being, or including, "in pursuance of" or "under the authority of", and, of course, a decision purporting to be "under" in either of these senses is included. From the definition of "decision to which this Act applies" without more, it is apparent that there does not have to be a specific duty cast on the decision-maker (cf s.7). In this case, the enactment is the Patent Attorney Regulations. In any of the senses of "under" which I have mentioned, the decision of the Board was made "under" the regulations, and therefore "under an enactment".

The decision of the Board of Examiners was therefore a decision of an administrative character made under an enactment and is within s.5. In relation to ground (1)(a) of the application the challenge to competency fails and is overruled.

Ground (1)(b) is obviously ancillary to the first ground and designed to assist the applicant in the proof of his case under that ground. The Act and the Rules of Court provide the procedures which can be used to this end. I do not therefore propose to consider separately this challenge to competency. In case it is desired to put any special matter to me, I will not at this stage overrule the objection but will stand it over until the hearing of the principal application, or further order.

The respondents should pay the applicant's costs of this application.

Some directions have already been given. I will stand over the further hearing of the application for directions to a date to be fixed by the District Registrar. A notice of motion under 0.15, r.11 filed on 26 May 1981 on behalf of the applicant remains to be dealt with. It seeks to obtain copies of the examination answers, or inspection of them. This motion should also be stood over to a date to be fixed by the Registrar.