QUESTION 4             Administrative Law 2002         Mark: 82

Can proceedings be instituted before the Minister’s declaration is made?

Under the ADJR Act, action can only be brought in relation to either a “decision” (s5) or
“conduct” (s6). While a decision hasn’t yet been made per se  the declaration hasn’t
been issued, it is still possible that the antecedent conduct may attract the jurisdiction of
the ADJR Act. In the case of Semble, it was held that “conduct” must be referable to a
“decision” yet to be made. NSW Land v ATSIC held that an ‘in principle’ decision was not
reviewable – it wasn’t procedural nor was it an antecedent step so neither a “decision”,
nor “conduct”. In this case however, the activity challengeable is procedural in nature –
raises issues of natural justice – and the conduct is referable to the decision yet to come
of the Minister to issue the declaration. It in many ways is preferable to commence
action at this time: MIMA v Ozmanian suggests that as a general rule antecedent
conduct won’t be independently reviewable after a decision is made. Breaches of
natural justice have to be opposed at the first available instance, often during a decision
making process. If action was commenced, the remedy of prohibitive injunction could
be sought to stop the Minister issuing the declaration. The case of Bond is relevant, while
the court dislikes fragmenting the administrative process, it found (due mainly to policy
reasons) that the flawed administrative process could be construed as conduct and was
reviewable at an interim stage. The justiciability of the PLA Inc’s actions would be
weighed up by the court/tribunal: possible fragmentation of the process against the
stopping of an unjust decision. Proceedings could be instituted (Bond)

Grounds of Review

     Unauthorised Purpose
An issue of law and statutory construction. Two points to consider:
-For what purpose can the statutory power be exercised?
-For what purpose was the power exercised?

The purpose of an act can be express (Campbell) or implied (Toohey) In this case,
section 1 gives a purpose clause; limiting damages and insurance levels. The purpose
given by the statement suggests that the Minister’s purpose seeks to combat plaintiff
lawyers rather than limit insurance premiums – against the express statutory purpose in
s(1) (Campbell)
This is likely to be considered an unauthorized purpose, but in and of itself will not
invalidate the decision.(Schlieske, Samrein)

     Procedural Fairness
Courts have held that even at interim stages of decision making rights are affected and
procedural fairness applies (Koppen). Whether the Association has standing would be
debatable, however if natural justice could be proved to be relevant – e.g. it does affect
the rights and interests of the Association if the Minister makes such a declaration – then
the proceedings would be subject to the Mobil Oil hearing rule test. Courts can impose
an obligation for a hearing even if it isn’t statutorily provided for (Ridge). Three steps must
be met (Mobil Oil):
-prior notice of decision
-disclosure of basis
-opportunity to present own case
Evidently stages 1 and 2 have been met (albeit with other grounds of review pending)
but stage 3 has been clearly breached.
Therefore, a possible case that procedural fairness has been breached, taking into
consideration the fact that this is a very discretionary area and prefers the individual
case over the group interest.

Marker’s comment: Policy decision?

      Failure to consider relevant matters
It may be argued that the Minister hasn’t seen all relevant matters (including those raised
by the PLA Inc). Tickner v Chapman suggests that adoption of a report by a Minister isn’t
enough and that matters must be personally considered. This is seen in Peko-Wallsend,
authority for the responsibility of Minister to ascertain all relevant matters before deciding.
In this case, the Assoc. comprises 1000 lawyers and have genuine concerns which the
Minister closes her eyes to. The principle of constructive knowledge may be seen to
apply. (Sean Investments)

     Irrelevant Considerations s s5(2)(a) ADJR
An irrelevant consideration of any significance will invalidate a decision (Klein v Domus).
Minister has a discretion to consider in this case, but must be restrained by scope and
purposes of Act (O’Sullivan). On authorities, it is hard to predict whether the court will
defer to the Minister’s consideration of the scourge of plaintiff lawyers or not, as the case
law is evenly split between deference and intervention.

As an incorporated group, the Association exists at law.
ACF: needs “special interest” in the subject matter of the dispute. Onus broadened the
criteria to intellectual and emotional interest also – although this is more likely to apply to
fact scenarios like Onus, rather than the legal and financial concerns – not really
humanitarian of ACF. Proximity is the key to the test in this case the PLA may be sent to
be proximate and their concern for their disadvantaged clients may allow standing
(North Coast). A collection of all elements; the clientele, the financial
disadvantagement, the loss of jobs etc. to the PLA may give rise to standing under the
Marine Power test. The Federal Court Act s33C also gives leave for representative and
class action – but first standing individually must be proven.
Overall and as a public interest group, the collection of factors, not unlike Marine Power
is likely to give rise to standing.

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