Amerio, Amerio, Bacchion, Bajramovic & Ors v Queensland Rural Adjustment Authority & Ors [1995] QSC 77

IN THE SUPREME COURT OF QUEENSLAND APN No. 209 of 1995 Brisbane [L.M. and A.G. Amerio & Ors v. Qld Rural Adjustment Authority & Ors] BETWEEN: L.M. and A.G. AMERIO, G. BACCHION, M. BAJRAMOVIC, E. BANUSH, L. BARBIR, M.M. BARBIR, M. and J. BATTISTIN, S. and G. BATTISTIN, S. BILIC, P. and J. BOSNIC, D. BUSATO, B. and E. CAPALDI, K. CIBAU, B. CONTE, P. COSATTO, S. DE SANTIS, A. DEZEN, B. FANTIN, M. FAVERO, A. FEGATILLI, A. FREGONA, G. GALATI, C. and M. GIACOMETTI, W. HENSON, A. and C. IACUTONE, F. IACUTONE, S. IACUTONE, I. KLARICICH, N. LA MONACA, S. LO GRASSO, A. INVERARDI, R. and I. MAIFREDI, A. MALOBERTI, A. and E. MORETTO, S., P. and Y. MURAT, J., H. and R. MYRTEZA, A. NICEFORO, A. PALMIERI, B. and A. PALUMBO, S. and L. PANETTA, L. and A. PATTANI, N. PETRALIA, G.B. PIN, S. PINESE, G. PREGLIASCO, M. RAVANELLO, A. RICCI, G. SCAPIN, O. SCHINCARIOL, J. SLISKOVIC, A. SMOLTKO, E. SONCIN, A. and D. SPENA, B. and R. SPENA, M. and D. SRHOJ, H. STANKOVICH, A. STANITSAS, D. STRAZZERI, A. and C. TATTI, A. TORRISI, G. TRABUCCO, G. TREVISIN, J. VISINI, A. ZUVELA, A. YELAVICH, C. and P. STORNELLI (Applicants) AND QUEENSLAND RURAL ADJUSTMENT AUTHORITY (First Respondent) AND THE TOBACCO LEAF MARKETING BOARD (Second Respondent) AND THE TREASURER OF QUEENSLAND (Third Respondent) AND THE MINISTER OF PRIMARY INDUSTRIES (Fourth Respondent) AND STATE OF QUEENSLAND (Fifth Respondent) -- 1 of 8 -- JUDGMENT - MACKENZIE J. Judgment delivered 5/5/1995 CATCHWORDS: JUDICIAL REVIEW - decisions made in relation to a proposed qld tobacco industry restructuring scheme under the Rural Adjustment Authority Act - whether any of the decisions were a "decision to which this Act applies" within the meaning of s.4 Judicial Review Act - whether scheme administrative or legislative - whether scheme ultra vires - whether prerogative or declaratory relie appropriate. Counsel: L. Harrison QC for all applicants except R & I Maifredi G. Gibson QC and P. Flanagan for respondents Solicitors: Patrick J. Murphy as t/a for Tony Entriken for all applicants except R & I Maifredi K.M. O'Shea for respondents Hearing date: 19 April 1995. -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND APN No. 209 of 1995 Brisbane [L.M. and A.G. Amerio & Ors v. Qld Rural Adjustment Authority & Ors] BETWEEN: L.M. and A.G. AMERIO, G. BACCHION, M. BAJRAMOVIC, E. BANUSH, L. BARBIR, M.M. BARBIR, M. and J. BATTISTIN, S. and G. BATTISTIN, S. BILIC, P. and J. BOSNIC, D. BUSATO, B. and E. CAPALDI, K. CIBAU, B. CONTE, P. COSATTO, S. DE SANTIS, A. DEZEN, B. FANTIN, M. FAVERO, A. FEGATILLI, A. FREGONA, G. GALATI, C. and M. GIACOMETTI, W. HENSON, A. and C. IACUTONE, F. IACUTONE, S. IACUTONE, I. KLARICICH, N. LA MONACA, S. LO GRASSO, A. INVERARDI, R. and I. MAIFREDI, A. MALOBERTI, A. and E. MORETTO, S., P. and Y. MURAT, J., H. and R. MYRTEZA, A. NICEFORO, A. PALMIERI, B. and A. PALUMBO, S. and L. PANETTA, L. and A. PATTANI, N. PETRALIA, G.B. PIN, S. PINESE, G. PREGLIASCO, M. RAVANELLO, A. RICCI, G. SCAPIN, O. SCHINCARIOL, J. SLISKOVIC, A. SMOLTKO, E. SONCIN, A. and D. SPENA, B. and R. SPENA, M. and D. SRHOJ, H. STANKOVICH, A. STANITSAS, D. STRAZZERI, A. and C. TATTI, A. TORRISI, G. TRABUCCO, G. TREVISIN, J. VISINI, A. ZUVELA, A. YELAVICH, C. and P. STORNELLI (Applicants) AND QUEENSLAND RURAL ADJUSTMENT AUTHORITY (First Respondent) AND THE TOBACCO LEAF MARKETING BOARD (Second Respondent) AND THE TREASURER OF QUEENSLAND (Third Respondent) AND THE MINISTER OF PRIMARY INDUSTRIES (Fourth Respondent) AND STATE OF QUEENSLAND (Fifth Respondent) REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 5/5/95. An application for a statutory order of review and for an order of review were filed in connection with what are described as - -- 3 of 8 -- 2 (a) A decision of the first, second and fifth respondents (by the third respondent) to include in a proposed Queensland tobacco industry restructuring scheme under the Rural Adjustment Authority Act 1994 a provision to give priority to growers according to the order of receipt by the first respondent of expressions of interest; (b) The decision of the fifth respondent (by the Governor-in-Council) to approve the scheme; (c) The decision of the first respondent not to, or in the alternative the failure of the Authority to decide to arrange for proper advice to growers pursuant to s. 8(2)(a) of the Rural Adjustment Authority Act 1994 in respect of their expressing interest under the scheme and to review and give advice to the relevant Minister under s. 8(2)(d)(i) and (ii) of the Act to reject the first come first served basis; (d) The conduct of the first respondent acting for itself, the second respondent and/or the fifth respondent (by the third respondent) by which expressions of interest were called under the scheme on the basis that priority would be given on a first come first served basis; and (e) The decisions of the first respondent for itself and the second respondent and/or the fifth respondent (by the third respondent) to exclude the applicants from the scheme. On the first return date of the application the respondents moved that the application be dismissed under s.48 of the Judicial Review Act on the grounds that none of the decisions was a "decision to which this Act applies" within the meaning of s. 4 of the Judicial Review Act and that none of the decisions was amenable to the relief claimed in the application; further and/or alternatively, the applications so far as they related to the fourth respondent be dismissed on the ground that no relevant decision made by the fourth respondent was sought to be reviewed; further and/or alternatively they should be dismissed as against the fifth respondent on the ground that pursuant to s. 53 of the Judicial Review Act 1991 the proper party was the third respondent not the fifth respondent. It was accepted by Mr. Gibson that relief under s. 48 would -- 4 of 8 -- 3 be granted only if the absence of a reasonable cause of action is clearly demonstrated (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125; Bellino v. Clair (1993) 2 Qd.R. 236). The Queensland Rural Adjustment Authority is a body corporate representing the State established by the Rural Adjustment Authority Act 1994 (ss. 6,7). Section 8(1) provides that the Authority's primary function is to put approved assistance schemes into effect by ensuring the schemes are properly and fairly administered and by directly giving the assistance the schemes provide for. Section 8(2) describes "other functions" which include the function of reviewing and giving advice to the Minister on proposed assistance schemes and the implementation of approved assistance schemes. The relevant objective of the Act is to establish the Authority to deliver financial and other assistance primarily targeted at fostering the development of a more productive rural sector. The Authority's activities are, by s. 3(2) to be directed mainly at giving assistance to rural producers who have long term viability, although the Authority will also help persons leave rural production. Section 11 of the Act defines an "approved assistance scheme" (which is the kind of scheme with which the present proceedings are concerned) as a scheme that:- (a) states the purpose and nature of financial assistance that may be given; (b) identifies the categories of persons eligible to receive the assistance; and (c) is approved by the Governor-in-Council. Mr. Gibson submitted that the "decision" referred to in para. A of the application was not a "decision within the meaning of the Judicial Review Act" because it was not a decision which was authorised or required by any statute, was no more than a proposal which was submitted to the Governor-in-Council and was, within the principle in Australian Broadcasting Tribunal v Bond (1990) 170 C.L.R. 321, "merely a step taken...on the way to the making of the ultimate decision" and not "a decision which is final or operative or determinative". The decision of the Governor-in-Council referred in para. B was a decision of a -- 5 of 8 -- 4 legislative character, not of an administrative character because:- (i) in consequence of the approval of the scheme by the Governor-in-Council, persons acquired rights and entitlements which they did not previously possess; and (ii) the approval of the scheme determined the content of the law of the State by declaring the rights of persons affected by the scheme. The decision involved more than the application of a general policy or rule to a particular case. It was submitted that the "decisions" of the Authority referred to in para. C of the application were not a "decision" on the Australian Broadcasting Tribunal v. Bond definition and that the conduct of the first respondent referred to in paras. D and E of the application was not amenable to a statutory order of review because there was no allegation in respect of the conduct except that it implemented the scheme in accordance with its terms. It was also submitted that none of the "decisions" complained of was amenable to prerogative or declaratory relief. The lack of legal consequences of the decisions prior to submission to the Governor-in-Council and the absence of circumstances which would require procedural fairness in making the policy decisions was emphasised. It was also submitted that there had been no failure to have regard to the provisions of the Rural Adjustment Authority Act and that approval of the scheme was not ultra vires the Act. If the "decisions" taken prior to submission to the Governor-in-Council to include certain elements in the scheme were not "decisions to which this Act applies" within the meaning of the Judicial Review Act, that is not the end of the matter because the applicants argue that if the scheme established under the Rural Adjustment Authority Act is legislative in character and not a decision of an administrative character, there is a serious question whether the particular scheme is ultra vires. As I understand it, the basic argument will be that a first come first served rule is not an option which can be used within the framework of the Act in determining who is to be eligible to receive assistance under a scheme having regard to the -- 6 of 8 -- 5 framework of the Act referred to above. If the scheme is not legislative but administrative, the submission would be that it was tainted as well. Having regard to the nature of these proceedings the short solution in my view is that, whether the scheme is administrative or legislative, the case is not one where it can be said at this stage of proceedings that there is no reasonably arguable issue. While one might have a preference for one characterisation over the other on the question whether the scheme is administrative or legislative, it should in my view be left to the Court which eventually hears the matter to make that decision because the characterisation applied may influence the way in which the matter is resolved. There was some tentative reference to the question whether the form of the proceedings involved in the application is appropriate to challenge the validity of a legislative instrument, if that be what the scheme is, or whether action by writ should have been commenced. Mr. Harrison sought relief under O. 93 r. 17 if that be necessary. In my view that is a matter which may also be reserved to the trial Judge. As the directions to be given will ensure that relevant information exchanged between the parties will be similar in either eventuality no prejudice should occur to either side by that course. With respect to the question whether the fourth respondent should remain in the proceedings the only basis upon which it is submitted that be might be necessary as a party is that if there is any doubt that s. 11 of the Rural Adjustment Authority Act authorises the scheme, an attempt might be made to justify it under s. 18 of the Primary Producers' Organisation and Marketing Act 1926. There is no substantial basis for that apprehension as the scheme, according to the Executive Council Minute, approves the scheme on the basis that it is an approved assistance scheme under the provisions of the Rural Adjustment Authority Act 1994. The applications are therefore dismissed against the fourth respondent. So far as the State of Queensland is concerned, in view of the unresolved question of the proper form of proceeding I do not propose to dismiss the application against the fifth respondent at this stage. The orders are the following - -- 7 of 8 -- 6 (1) The application against the fourth respondent is dismissed. (2) Subject to para. (1), the motion is dismissed. (3) In view of this outcome, it will be necessary to give directions. As the parties have indicated there is a likelihood of agreement on directions, I will initial an agreed draft of suitable directions including an order for priority. In case agreement cannot be reached, I give liberty to apply. (4) Costs reserved. -- 8 of 8 --