Brown v NSW Department of Industry [2016] NSWSC 1513 (19 October 2016)

Last Updated: 28 October 2016

Supreme Court New South Wales

Case Name:	Brown v NSW Department of Industry
Medium Neutral Citation:	[2016] NSWSC 1513
Hearing Date(s):	19 October 2016
Date of Orders:	19 October 2016
Decision Date:	19 October 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Summons dismissed. Notice of Motion filed 19 August 2016 dismissed. Plaintiff to pay the defendant’s costs.
Catchwords:	Dismissal – statutory exemption of obligation to provide reasons – contention that decision invalid because reasons not provided unarguable – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW) Hemp Industry Act 2008 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Category:	Procedural and other rulings
Parties:	Langdon Brown (Plaintiff) NSW Department of Industry (Defendant)
Representation:	Counsel: Ms J Coady, solicitor (Plaintiff) Mr H El-Hage (Defendant) Solicitors: Jodhi Coady (Plaintiff) New South Wales Department of Industry, Skills and Regional Development (Defendant)
File Number(s):	2016/174372

JUDGMENT (EX TEMPORE)

1. 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.
2. 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.
3. Section 10 of the Act provides as follows:

10 Determination of licence application
(1) The Secretary is to determine an application for a licence:

(a) by granting the application and issuing a licence to the applicant, or
(b) by refusing the application.

(2) The Secretary is to give the applicant written notice of the determination of the application. However, the Secretary is not required to give any reasons for his or her decision.
(3) The Secretary’s decision in relation to a licence application is final and is not subject to review.

4. 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."
5. 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.
6. 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.
7. 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.
8. 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:

“2. For abundant clarity, the Summons does not seek a review of the Department's decision to reject the Plaintiff's licence application at this stage, it merely seeks for the decision to be quashed, on the basis reasons were not given, that therefore he was not given a fair hearing and therefore natural justice has been denied.
3. The Plaintiff is also concerned he will be prejudiced at any subsequent application by reason of the decision made by the Defendant. So the Summons goes on to seek the opportunity for the Plaintiff to apply again at a later time subject to the rules of natural justice including the opportunity to be given a fair hearing."

9. 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.
10. 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.
11. 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.
12. 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.
13. Accordingly, I order that:

1. The Summons be dismissed;

2. The Notice of Motion filed 19 August 2016 be dismissed.

[Submissions re costs]

14. 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.
15. 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.
16. Accordingly, I order the plaintiff to pay the defendant's costs.

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