Clanwilliam Pty Ltd v Barlett

Unreported 8 May 1984

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(Judgment by: Fitzgerald J)

Between: Clanwilliam Pty Ltd
And: Donald John Barlett

Court:

Judge:
Fitzgerald J

Subject References:
Administrative Law

Judgment date: 8 May 1984

Brisbane

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Judgment by:
Fitzgerald J

1. On 26 October 1983, 7 November 1983 and 8 December 1983, applications were made under sub-s. 40AD(1) of the National Health Act 1953 by the applicant, Clanwilliam Pty Limited, for the alteration of conditions applicable to the Janolma Nursing Home.

2. On 31 January 1984 the respondent, an officer of the Department of Health, notified the applicant of his decision, and the letter conveying the decision was received by the applicant on 1 February 1984.

3. On 13 February 1984 the applicant requested a statement pursuant to sub-s. 13(2) of the Administrative Decisions (Judicial Review) Act 1977, ("the Act"). By sub-s. 13(2) of the Act, the statement was required to be furnished within 28 days after the request.

4. On 12 March 1984, one day before the last day for the provision of the statement, another officer of the Commonwealth Department of Health, Mr Simpson, telephoned the applicant's manager. There is some dispute concerning the contents of the conversation which took place, but no attempt was made to resolve that conflict by oral evidence or cross-examination. The officer of the Department of Health was present in court; the manager of the applicant was not.

5. According to the affidavit of Mr Simpson, on 12 March 1984 he telephoned the applicant's manager and had a discussions with him and the tenor of the conversation was as follows:

"I informed Mr Potts that though the reasons which were sought were due on that day they would not be available on that day."

I interpose to say that it is conceded that in fact the reasons were not due until the next day.

"I assured Mr Potts that the Department would have the reasons to him in a short time, probably by the end of the week. Mr Potts said he wasn't happy with this and might consider taking legal action. I suggested to Mr Potts that it might not be worthwhile taking any legal action because the information he wanted would be supplied to him before the legal action would be effective."

6. The statement was prepared on 14 March 1984 and was posted on or before 16 March 1984.

7. On the same day, Mr Potts swore an affidavit, and his affidavit and an application were filed in this Court, commencing the present proceedings. The application sought an order calling upon the decision-maker to show cause why a writ of mandamus should not be issued requiring him to prepare and furnish the statement.

8. The application and supporting affidavit were served on 19 March 1984, the same day that the statement under sub-s. 13(2) of the Act was received by the applicant. The evidence does not indicate in what order those steps took place. The application came on for directions on 30 March 1984. By then it was common ground that no order should be made on the application other than an order for costs. Each party seeks costs. Questions were raised by the respondent on 30 March 1984 concerning the appropriateness of the proceedings which were adjourned on that day until today, when the issues were argued.

9. I am quite satisfied that the decision-maker is not protected from an order of mandamus by any exemption which may be enjoyed by the Crown from that remedy. In the cases to which s.13 of the Act applies, there is a clear statutory obligation upon decision-makers, although officers of the Commonwealth, to supply statements, and there is no doubt, in my opinion, that that duty can be enforced by an order of the Court.

10. The respondent submits that a failure to give reasons within time is itself a reviewable decision under the Act. That may be so. However, as the law has developed to this stage, there are doubts attendant upon whether or not an order may be made under the Act for the provision of such a statement, at least prior to the commencement of the proceedings for the review of the decision in respect of which the statement is requested: see Lloyd v. Costigan, an as yet unreported decision of the Full Court delivered in Perth on 9 May 1983. In such circumstances, there is nothing inappropriate in proceeding by way of mandamus under s.39B of the Judiciary Act as a means of enforcing the duty to give a statement under s.13 of the Act. In any event, no reason occurs to me why, if an application is made for an order of mandamus instead of an order under the Act, any necessary amendment of the application should not be permitted as soon as possible to allow a decision on the merits of the substantive point concerning the existence or otherwise of the obligation to give reasons (cf: The Queen v. Pine Rivers Shire Council; ex parte Raynbird (1967), QdR 384; Robinson v. Commissioner of Taxation, an unreported decision of Lockhart J. delivered on 13 April 1984).

11. Mr Simpson, in his affidavit, has said that every endeavour was made to supply the statements of reasons requested in the prescribed time, and the failure to do so was solely due to lack of departmental resources to meet the deadline. However, he points out that no objection was taken to supplying the statement, and as I have already indicated, the statement has been provided. Departmental difficulties cannot of course excuse non-compliance with a statutory obligation. On the other hand, I am satisfied that the proceeding were always patently unnecessary and a waste of time and costs.

12. I am satisfied that Mr Simpson conveyed to Mr Potts the intention of the decision-maker to provide the statement required by sub-s. 13(2) of the Act and that it was intended to do so in the immediate future, that Mr Potts should have been satisfied that legal action would be futile, and that, before any opportunity could be given to the Court to make an order, the statement would have been received.

13. In the circumstances, it seems to me that there is fault on both sides, and that it is appropriate that each party bears its own costs. Accordingly, I make no order as to costs.