Brown v NSW Department of Industry

By a Summons filed 7 June 2016 the plaintiff, Langdon Brown, sought relief in respect of a decision made under s 10(1)(b) of the Hemp Industry Act 2008 (NSW) (the “Act”) to refuse his application for a licence to cultivate or supply low-THC hemp for one or more of the purposes stated in s 5 of the Act, and in his case, as I understand it, specifically for medicinal purposes.

By Notice of Motion filed 19 August 2016 the defendant, who one way or another is the responsible officer in respect of the licence refusal, seeks an order that the Summons be struck out under a combination of s 61(3)(b) of the Civil Procedure Act 2005 (NSW), r 14.28 of the Uniform Civil Procedure Rules and/or r 13.4, on various bases but specifically that the Summons does not disclose any reasonable cause of action, does not disclose the grounds on which review is sought or otherwise has a tendency to cause tendency, embarrassment or delay.

Section 10 of the Act provides as follows:

On 24 February 2016 an officer within the Department of Primary Industries wrote to Mr Brown advising that the result of his application was that it was refused, and stating, "[I]n accordance with the Act, this decision is final and is not subject to review."

On 27 June 2016, the solicitor acting on behalf of Mr Brown wrote to the Department requesting it provide her client with, inter alia, a statement of reasons for the decision pursuant to Uniform Civil Procedure Rule 59.9. On 12 July 2016, a legal officer within the Department responded by stating that, in the opinion of the Director-General of the Department, as s 10 of the Act specifically excludes a requirement to give reasons, the Court cannot order that they be provided pursuant to Uniform Civil Procedure Rule 59.9.

In the end result it is not necessary to resolve that particular question, although it should be noted that, if in a particular case a proper application was brought on proper grounds, a specific exemption of a requirement to provide reasons would not exclude the Court's power to issue subpoenas and order discovery to ascertain what material was produced by, and for the benefit of, the decision-maker. Whether or not interrogatories could be directed to the decision-maker in those circumstances is a different matter, which it is not necessary to address.

The initial basis for the application was that the Summons as filed, although setting out at one level the position of the plaintiff, did not identify proper grounds for judicial review of the decision to refuse the licence. Although the Act says the decision is final, it is clear that the decision could at least be attacked on the basis of jurisdictional error (Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531) (“Kirk”). Nevertheless, the Summons recounted the background to the making of the application, and did make complaint about the absence of reasons.

When submissions were filed in support of the Motion on behalf of the defendant, the plaintiff's solicitor filed submissions in response which clearly identified the basis for the application. A number of the matters advanced were of a policy or law reform nature, which are not within this Court's power to address. However, the essence of the case, as put, was as follows:

The proposition that the rules of natural justice require an administrative decision-maker to give reasons was, until 1986, a live debate amongst administrative lawyers. However, in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (“Osmond”) the High Court rejected the proposition that the common law principle of natural justice requires that reasons be given for administrative decisions, even those made in the exercise of a statutory discretion and which are liable to adversely affect the interests or defeat the legitimate or reasonable expectations of others.

Further, as I have stated, in this case s 10 of the Act positively excludes any such requirement. It would follow from Osmond that a statutory provision that positively excludes an obligation to give reasons would not fall foul of the decision in Kirk. To that extent, therefore, it must follow that, notwithstanding the cogency of Mr Brown's solicitor's submissions, the suggested basis for quashing the decision is not arguable.

The other matter that was raised in the above extracts from the plaintiff's submissions concerns his opportunity to apply again for a licence. On my reading of the Act there is no prohibition on further applications for a licence being made, even by a person who has previously been refused. Counsel for the defendant did not submit to the contrary. That said, it is true that the fact that a licence has been refused at an earlier stage may affect that application or an application made under another regulatory scheme. Whether that will ultimately prove to be fatal is a matter I cannot address.

It follows that, although the Summons might be read generously with the plaintiff's submissions as now identifying a ground of review, the ground of review that has been identified is not reasonably arguable. Accordingly, pursuant to Uniform Civil Procedure Rule 13.4, the Summons will be dismissed.

Accordingly, I order that:

The defendant seeks its costs of its Notice of Motion. In response, Mr Brown's solicitor fairly puts that the application was a confined one. She also puts that her client has little assets, and that ultimately his intentions are altruistic.

Nothing in what I have said or will say is meant to be any adverse reflection on the plaintiff, or suggest that he was anything other than bona fide in either seeking a licence or pursuing these proceedings. However, the discretion to award costs is constrained. Where a Summons is dismissed in these circumstances I have no choice but to order the plaintiff to pay the defendant's costs. Of course, whether the defendant will choose to recover them, and whether they can be recovered, are matters I cannot address at this point.

Accordingly, I order the plaintiff to pay the defendant's costs.