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  1. Originating application for judicial review

    QUESTION

    Define the process for Originating application for judicial review

 

Subject Law and governance Pages 20 Style APA

Answer

Originating application for judicial review

No. 15 of 2020

Federal Court of Australia

District Registry: VICTORIA

Division: GENERAL

  1. VAI

Applicant

 

MS KATIE HULL & 6 OTHERS

Respondents

To the Respondents

The Applicant applies for the relief set out in this application.

The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.

You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: ……………………

Place: 189 Queen Street, Melbourne, VIC, 3000 Australia.

The Court ordered that the time for serving this application be abridged to ……………………

Date:  1 September 2020

 

Signed by an officer acting with the authority of the District Registrar

 

The Applicant applies to the Court to review the decision of the Respondents; in their capacity as members of the Selection Committee for the nomination of a suitable person to fill the vacancy of a member of AgriFutures’ board of directors, to reject the application of the Applicant for a board member of AgriFuture. The decision will be hereinafter referred to as “the Decision.”.

Details of claim

The Applicant is aggrieved by the Decision because:

  1. The Applicant is adversely affected by the Decision.[1]
  2. The Applicant is likely to gain some advantage if the action succeeds or suffer some disadvantage if the action fails.

Grounds of application

  1. Procedures that were required by law to be observed in connection with the making of the decision were not observed.[2]
  2. The Respondents relied on race in making the decision which is not one of the grounds that should be considered.
  3. The Respondents improperly exercised their statutory power by exercising the power for a purpose other than a purpose for which the power is conferred.[3]
  4. The making of the decision was connected with a breach of the rules of natural justice.[4]
  5. The Respondents failed to provide valid reasons for denying the Applicant an opportunity to become a board member of AgriFuture.
  6. The Respondents did not accord the Applicant procedural fairness because they failed to reveal to the Applicant the name of the person nominated.
  7. That there was no sufficient evidence or other material to justify the making of the Decision.[5]
  8. The Respondents relied on diversity and not on the qualifications set out in the advertisement to decide on the nominee for the board member of AgriFuture.
  9. The Respondents nominated another person despite that person not meeting some of the qualifications indicated in the job advert.

Orders sought

  1. A declaration that the Respondents’ Decision was unlawful and improper.
  2. A writ of certiorari quashing the Respondents’ Decision.
  3. A writ of mandamus compelling the Respondents to reverse their Decision and reach a fresh decision.
  4. Alternative to the three (3) orders requested above, the Respondents be compelled by injunction to declare the Applicant as a duly nominated member of the board member of AgriFuture.
  5. The Respondents pay for the costs of and incidental to this application.
  6. Other orders that this Honourable Court may deem appropriate.

Applicant’s address

The Applicant’s address for service is:

  1. VAI

61 Sussex St

Sydney, NSW 2001

Service on the Respondents

It is intended to serve this application on all Respondents.

 

Date: 1 September 2020

 

Signed by

Attorney for the Applicant

 

 

 

WRITTEN SUBMISSIONS

  1. JURISDICTION
  2. The Federal Court in which this application is filed has competent jurisdiction to hear and determine the matter under the provisions of the ADJRA.[6]

1.1. The Applicant has jurisdiction to bring this application for judicial review against the Respondents for their decision to reject his application to become a board member of AgriFutures and appoint another person who is not duly qualified.

1.2. The decision of the Respondents is a decision to which the ADJRA applies.[7]

1.2.1.           The decision to reject the Applicant’s application to become board member is a decision covered by the ADJRA. It is not only final and substantive but also operational and ultimate.[8] The decision is not a procedural decision. Although it will be shown that the conduct of the Respondents in reaching the decision is relevant, it would only be considered in the context of the review.

1.2.3.           The decision made is that of an administrative nature and not a legislative or judicial decision.[9] The decision applies to established law relevant to the individual case and not to all cases in a similar category. Also, the Act provides that the decision may be reviewed on its merits, which further shows that the decision is an administrative one.

1.2.3.           The decision was made under an enactment, which is s.132 of the Primary Industries Research and Development Act 1989.

1.2.4.           The decision of the Respondents is not one of the decisions excluded from judicial review under schedule 1 of the Act.

  1. STANDING
  2. The Applicant is a person aggrieved by the Respondents’ decision, thus, has the standing to seek a judicial review of the Selection Committee’s decision to which the Act applies.[10]

2.1.               The Applicant is aggrieved because he can satisfy the “special interest” requirement in common law.[11]

2.1.1.           The Applicant has a special interest and not just a mere intellectual or emotion concern.

2.1.2.           The Applicant has all the required qualifications and will likely be denied an opportunity as a result of the Respondents’ decision.

2.1.3.           The Applicant will lose his right to sit on the board of AgriFuture because of a failure by the Respondents to consider his application on merit.

2.1.4.           The Applicant will have no other recourse if a review of the Respondents’ decision is not made at the earliest opportunity.

2.1.5.           The Applicant is an aggrieved person under s.13 of the Act, hence, has standing under s.5 of the Act.

  • GROUNDS OF REVIEW
  1. Procedural Error
  2. If the procedures that were required by law to be followed and observed with the making of a decision were not observed, then an Applicant has a ground for review[12].
  3. According to the Administrative Decisions (Judicial Review) Act 1977 (Cth), where a decisionmaker has engaged or intends to engage in conduct with the intent to make a decision to which the law applies, any person who aggrieved by such conduct may apply to the Court for an order of review in respect of such conduct.[13]
  4. One of the grounds for application of review is where the procedures that are required by law to be observed in respect of the conduct have not been observed or are unlikely to be observed.[14]
  5. The Primary Industries Research and Development Act 1989 (Cth) requires certain procedures to be followed by the Selection Committee in connection with nominating a candidate for one to become one of the directors.[15] Such procedures were not properly observed by the Respondents.
  6. Under s.130 of the Act, the Selection Committee is required to “give to the Minister a written notice nominating the person or persons it considers suitable for appointment to the R&D Corporation, having regard to the desirability diversity of expertise, experience, and gender, among the nominees.”[16]
  7. Additionally, under s. 130(3), the Selection Committee is required to provide a notice to the Minster including all the nominee information such as the details of the nominee and their qualifications and experience.[17] Also, the Committee must furnish the Minister with any other relevant information that will assist in the determination of whether the nominee should be appointed or not.[18]
  8. The Selection Committee made a procedural error because it failed to abide by Primary Industries Research and Development Act 1989 in the selection of a person that will ensure the attainment of the corporation’s objectives.
  9. Based on s.131(2) in considering from the available candidates, the Selection Committee must make sure that their nominee possesses an appropriate balance of experience in as many fields of practice and with regard to the “particular primary industry or class of primary industries in respect of which the R&D Corporation or R&D Council is established.”[19] The person selected is required to have experience in board affairs.
  10. In the present case, the Respondents nominated a person who did not have an appropriate balance of expertise in agriculture, and neither did he have any experience in board affairs.
  11. In Project Blue Sky Inc v Australian Broadcasting Authority,[20] the Court held that an act of a decisionmaker that breaches a condition required in the exercise of statutory power is not invalid per se but the validity of such a decision is based on the intention of the legislation.
  12. Where a decisionmaker exercises power without complying with a condition on which the power depends, then the purported exercise of such a power should be declared invalid.[21]
  13. The Primary Industries Research and Development Act 1989 (Cth) uses the word “must,” which makes it mandatory for the Selection Committee to adhere to the provisions of the Act. The Selection Committee cannot derogate from the requirements of the law and such a mistake would invalidate the final decision reached.
  14. The selection of a person who did not have experience of working in the agriculture industry and an individual without experience of sitting on other boards makes the Decision of the Respondents, invalid, null, and void.
  15. Improper Exercise of Power
  16. If an aggrieved person feels that a decision-maker took an irrelevant consideration into account in the exercise of a power or failed to take a relevant consideration into account in the exercise of such power, then such an Applicant is allowed to approach the Court for judicial review.[22]
  17. Before the Respondents choose a candidate for the position of director, the Selection Committee must be satisfied that the person has the necessary expertise in various areas of practice related to the industry in question.[23] Additionally, the candidate selected should have an extensive experience in board affairs.
  18. The Respondents failed to take into consideration the requirements of the law by selecting a candidate who did not have any experience in board affairs.
  19. Based on the information that the Applicant obtained from the Respondents after making a freedom of information (FOI) application, the following was established about the candidate selected: –

17.1              The selected candidate was from an ethnic minority.

17.2                The selected candidate did not have any experience in the agriculture industry.

17.3                The selected candidate had no experience sitting on other boards.

  1. Grounded on the procedures required in making the nomination of a suitable candidate, the Respondents must have ensured that such a candidate had the necessary qualifications for the position in question.
  2. The Respondents failed to consider the candidate’s lack of experience in the agriculture industry and his apparent lack of experience in sitting in other boards, which invalidates the Decision of the Selection Committee.
  3. The Applicant had all the necessary qualifications for the position but the Respondents failed to take the relevant considerations of a candidate’s qualifications before making a decision as to the best-suited person for a director.
  4. According to the Court in the Peko-Wallsend[24] case, the Applicant must show that the aspects to be considered were something of which the decision-maker had knowledge.
  5. The matters of the qualifications of the candidates such as their experience and expertise are aspects that clearly relate to the criteria identified in the statute, thus failure to consider them constitutes a failure by the Respondents to exercise their power in the manner required by the law.
  6. Breach of Natural Justice
  7. The Selection Committee breached natural justice or procedural fairness because there was a mistake or ignorance of a relevant fact involved.[25]
  8. The Selection Committee ignored the fact that the person they selected had no experience in the agriculture industry and neither did he have experience sitting on other boards.
  9. The Selection Committee was only focused on selecting a person from an ethnic minority group instead of finding the best fit for the position.
  10. The exclusion of factually relevant material means that a relevant consideration was ignored, which resulted in a failure to comply with statutory requirements in reaching the final decision.
  11. The rules of natural justice apply in situations where a need arises for an administrative body to provide procedural fairness in a decision that would impact the rights and interests of a party directly.[26] The Applicants’ rights are impacted in a direct way because he would miss out on the position of a board member due to the procedural unfairness of the Selection Committee.
  12. There is no intention in the Primary Industries Research and Development Act 1989 (Cth) that the rules of natural justice should not be observed in the selection of board members for the AgriFutures.
  13. Consequently, the Applicant should have been afforded natural justice by the Respondents in making of the Decision on who should fill the position of a board member.

Actual bias

  1. The Respondents, who are the decision-makers had a pre-existing state of mind which, hindered them from conducting a proper evaluation of the Applicant’s qualifications and making the relevant decision.[27]
  2. Actual bias is established where it can be demonstrated that the decisionmaker had a closed mind and was not open to any form of persuasion.[28]
  3. Although the Selection Committee had advertised for suitable candidates to apply for the position of a board member, they were already fixated on selecting a person from a minority ethnic group, thus, they had a closed mind not open to persuasion.
  4. One of the members of the Selection Committee knew about the Applicant due to their prior working relationship, which means that he was already biased against him and should have recused himself from the Selection Committee.
  5. According to the Primary Industries Research and Development Act 1989 (Cth), a member of the Selection Committee who has a direct or pecuniary interest in a matter to which disclosure relates must perform the following: –

34.1                    Avail himself/herself during any of the deliberations of the committee for the purpose of determining the existence of such a direct or pecuniary interest and the extent of such an interest.[29]

34.2.                  The member must also take part in the Committee’s making of the determination.[30]

  1. 138(2) demands that any member of the Selection Committee with any direct or indirect pecuniary interests in the matter being considered or about to be considered and where the interests could conflict with the popper performance of the member’s duties must disclose the nature of the interests and the interests recorded in writing.[31]
  2. In the present case, although one of the Respondents had worked with the Applicant in a previous organization, he did not declare a possible conflict of interest, which resulted in actual bias during the nomination process.
  3. The failure to disclose and record the disclosure in the minutes of the meeting invalidates the Decision reached by the Respondents.

Apprehended/Ostensible Bias

  1. The rule on apprehended bias is that justice should not only be done but also seen to have been done.[32]
  2. The Applicant was not afforded natural justice with the making of the Decision as to the person to occupy the position of the board member because of an apprehended bias.
  3. A fair-minded observer might have reasonably apprehended that the Respondents were not impartial but rather prejudiced because they selected a person who did not have the qualifications for the position but rejected the Applicant’s application due to his overqualification for the position.[33]
  4. The two-step test in Ebner v Official Trustee[34] can be applied to demonstrate that a fair-minded observer may apprehend that the Decision about the suitable person to be a board member was not made on merits but rather on several facts that are connected with a biased outcome:

41.1                The Respondents was hell-bent on ensuring diversity and selecting a candidate from the minority ethnic group irrespective of such person’s qualifications.

41.2                Although the candidate selected did not have all the qualifications required such as experience in the agricultural industry and in sitting on other boards, he was selected.

42.3.              Despite the Applicant having all the qualifications required for the job, he was rejected because of frivolous reasons, which implies that there was an apprehension of bias by the decisionmaker.

  1. Thus, a fair-minded layperson would reasonably observe that the Respondents did not bring an impartial mind to the Decision.[35]
  2. No sufficient evidence
  3. The law provides that a person aggrieved by the decision of a decisionmaker may apply to the Court for review if the decision was reached without any evidence or other materials to justify the making of the proposed decision.[36]
  4. The Respondents made a decision improperly without probative evidence and without following the rules of procedural fairness.
  5. Using the grounds set out in Australian Broadcasting Tribunal v Bond[37], it is an error of law for the decision-maker to make finding or draw inferences in the absence of evidence.
  6. There was no probative evidence to support the Decision of appointing another person to be a board member of AgriFutures.[38]
  7. The absence of evidence to support the findings and the Decision of the Selection Committee gives rise to a question of law.
  8. There was no basis for the Respondent to find the Applicant unsuitable for the position of the board member.
  9. The reasons provided by the Respondents in rejecting the application by the Applicant are not based on any probative evidence because the Applicant was qualified based on the different qualifications stated in the advertisement.

49.1.          The Applicant had a relevant expertise required in the advertisement placed in a local daily by the Respondents.

49.2.          The Applicant had the experience of sitting on a board which made him more suitable for the position of board member.

  1. The Respondents made their Decision based on an incorrect fact that the Applicant was not qualified because they did not consider the degree issued by Hypothetical University to be a sufficient signal of quality.
  2. Even the person selected for the position did not have the qualifications that the Selection Committee deemed the Applicant not to possess.
  3. Thus, the Respondents did not have enough evidence to make a decision about the unsuitability of the Applicant or the suitability of the person eventually selected.
  4. REMEDIES
  5. The Applicant seeks to set aside/quash the decision of the Selection Committee to reject his application for a board member.
  6. The applicant seeks to fer the matter back to the Committee for further consideration subject to any conditions this honourable Court may deem fit.
  7. Costs to be borne by the Respondents.

 

Date: 2017

 

Signed by Lawyer for the Applicant

 

 

 

 

 

 

 

 

 

 

 

 

This pleading was prepared by, lawyer

 

Certificate of Lawyer

I certify to the Court that, in relation to the statement of claim filed on behalf of the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.

 

Date: 2017

 

 

Signed by Lawyer for the Applicant

 

 

[1] Administrative Decisions (Judicial Review) Act 1977 (Cth) s. 3(4)(a).

[2] Ibid s 6(1)(b).

[3] Ibid s 6(1)(e).

[4] Ibid s 6(1)(a).

 

[5] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6(1)(h).

[6] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 8.

[7] Ibid s 3(2)(a).

[8] Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321, 336.

[9] Central Queensland Land Council Aboriginal Corp v Attorney-General of the Commonwealth and the State of Queensland [2002] 116 FCR 390.

[10] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(4).

[11] Ogle v Strickland [1987] 13 FCR 306, 307.

[12] Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] 204 ALR 55 343

[13] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1).

[14] NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 412 at [24] (Gyles J).

[15] Primary Industries Research and Development Act 1989 (Cth) s 131.

[16] Ibid s 130.

[17] Primary Industries Research and Development Act 1989 (Cth) s 130(3).

[18] Ibid.

[19] Primary Industries Research and Development Act 1989 (Cth) s. 131(2),

[20] [1998] 194 CLR 355 63, 201.

[21] Judith Bannister, Gabrielle Appleby, and Anna Olinyk. Government Accountability Australian Administrative Law, (Cambrige University Press, 2015): 45.

[22] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2).

[23] Primary Industries Research and Development Act 1989 (Cth) s. 131(2).

[24] Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd [1987] 15 FCR 274 228, 268.

[25] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 206 CLR 57 26, 91, 269; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 1(a).

[26] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a).

[27] Minister for Immigration and Multicultural Affairs; Ex parte Jia [2001] 205 CLR 507 at 541.

[28] R v Gough [1993] AC 646 322; Webb v R [1994] 181 CLR 41 320, 322,

324

[29] Primary Industries Research and Development Act 1989 (Cth) s.138(5).

[30] Ibid.

[31] Ibid, s. 138(2).

[32] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ).

[33] Australian National Industries Ltd v Spedley Securities Ltd (in Liq) (1992) 26 NSWLR 411 at 414.

[34] [2000] 205 CLR 337, 318, 319, 320, 323.

[35] Ibid.

[36] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6(1)(h).

[37] Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 30, 213, 219.

[38] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 218.

References

Books/ Articles

Judith Bannister, Gabrielle Appleby, and Anna Olinyk. Government Accountability Australian Administrative Law, (Cambridge University Press, 2015)

Case Law

Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 30, 213, 219.

Australian National Industries Ltd v Spedley Securities Ltd (in Liq) (1992) 26 NSWLR 411 at 414.

Central Queensland Land Council Aboriginal Corp v Attorney-General of the Commonwealth and the State of Queensland [2002] 116 FCR 390.

Ebner v Official Trustee [2000] 205 CLR 337, 318, 319, 320, 323.

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] 204 ALR 55 343

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd [1987] 15 FCR 274 228, 268.

Minister for Immigration and Multicultural Affairs; Ex parte Jia [2001] 205 CLR 507 at 541.

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 218.

NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 412 at [24] (Gyles J).

Ogle v Strickland [1987] 13 FCR 306, 307.

R v Gough [1993] AC 646 322.

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ).

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 206 CLR 57 26, 91, 269;

Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 63, 201.

Webb v R [1994] 181 CLR 41 320, 322, 324.

Legislation

Primary Industries Research and Development Act 1989 (Cth).

Administrative Decisions (Judicial Review) Act 1977 (Cth).

 

 

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