#7230 - Introduction To Judicial Review Ii - Administrative Law

R v Panel on Take-overs and Mergers; Ex parte Datafin plc (1987) 1 QB 815

Facts: The Panel was an unincorporated association whose members were appointed by various NGOs, with the chair and deputy appointed by the Bank of England. It had devised a City Code on Take-overs and mergers that provided methods of sanction on breach (reprimand, censure, prevention of enjoyment of securities market). There was no direct authority (statutory, prerogative or common law) in support of its operation or its code but its self-regulatory role was recognized by the Dept of Trade. Datafin complained to the panel that companies breached the code; it was rejected upon which they applied for judicial review. The CA held that it had jurisdiction but dismissed the proceedings since no legal error was made.

Sir John Donaldson MR:

• Self-regulation in this context refers to a system in which a group of people use their collective power to force themselves and others to comply with a code of conduct that they devise.

• The panel conducts itself as such, but though lacking any authority de jure, it exercises immense power without any visible or direct legal support.

  • But it was an act of government that decided that, in relation to take-overs, such a body should exist supported and sustained by periphery statutory powers wherever non-statutory powers were insufficient

• The Tribunal’s lack of direct statutory base is a complete anomaly and an historical ‘happenstance’

• No factors giving rise to jurisdiction are determinative but the only essential elements are what can be described as a public element that can take many forms

• The panel is undoubtedly performing an important public duty – this is clear from the willingness of the Sec. Of State for Trade and Industry to limit legislation and use the panel as the centrepiece of regulation.

• It has a duty to act judicially and do equity. Its source of power is only partly based on moral persuasion – the bottom line is the statutory powers exercised by the Dept of Trade/Industry and the Bank of England. The court should hence recognize the realities of executive power at play

• He then addressed the practical problems – decisions of the panel are fully effective unless set aside by the court (therefore the issue of speed/certainty/finality is resolved) and the court has discretion to accept only meritorious applications

Lloyd LJ:

• Observed that the word self-regulating was misleading since the panel regulates not only itself but all others who have no alternative but to come into the market in which the code applies

• So long as the possibility of an abuse of power exists, the court shouldn’t abdicate responsibility. Furthermroe the court should proceed in the realm of public rather than private law as they are quicker and the court can exclude unmeritorious claims

• The sole test is not the source of power – often this will be determinative but the nature of the power is also important

  • If the power has public law consequences (the distinction is: between a domestic/private tribunal and a body of persons under a public duty; the distinction lies in the nature of the duty)

• Even if this was incorrect, Lloyd LJ held that the power exercised was governmental in that an implied devolution of power took place

Neat Domestic Trading Pty Ltd v AWB Ltd (2006) 216 CLR 277

Facts: Wheat Marketing Act contained the offence of exporting wheat without the Wheat Marketing Authority created by the Act which also provided that consent wasn’t to be granted till the AWBI gave its prior written consent to the export. AWBI was a subsidiary of AWB but both were owned by wheat growers and incorporated in Victoria. AWBI could export wheat under the Act – giving it a monopoly position. NEAT applied for export but was refused; it challenged this claiming that AWBI breached the section concerning inflexible application of policy without regards to the merits. The FCA justices dismissed the actions saying it was outside the purview of the Administrative law. The HCA dismissed the appeal from the FCA

Gleeson CJ:

• The Act gives AWB and AWBI a statutory role affecting the interests of the public such as the appellant.

• When statute confers discretionary power capable of affecting rights/interests, the identity/nature of the repository of that power can be taken into account in deciding what can be considered in decision-making or whether they are ‘at large’

• Preferred the view that the decision of the AWBI was of an administrative character:

  • Even though it wasn’t a statutory authority it pursued the interests of a large class of primary producer; it provides a potential monopoly in the bulk export of wheat which affects wheat producers and the national interest

  • Describing it as representing private interests is inaccurate – it exercises veto over decisions of the statutory authority to manage wheat, it has power to withhold approval which is a condition precedent to the authorities decision, and its power and conduct is outside of the view of the TPA

  • In substance it exercises a statutory power to deprive the Wheat Export Authority of the capacity to consent to export in a given case

McHugh, Hayne & Callinan JJ

• Though they found an ‘intersection between the private and the public’ in its role to play in permitting exports they answered that public law remedies could not be granted against private bodies for three reasons:

The roles of the Authority and AWBI

• s57 gives the Authority, not AWBI to give consent to exports. It is the Authority’s decision which is operative and determinative.

• The AWBI didn’t need a statutory power to give it capacity to give approval in writing – it had the power to create such document; this was only given statutory significance by the subsection which didn’t give them statutory authority to make a decision (‘per se’)in respect of that approval it was merely a condition precedent

AWBI – it’s private character; accommodating public law obligations with its private interests

• AWBI doesn’t owe its existence to the Act.

• Its existence and its organs had various obligations, chiefly its private objectives; it’s constituent documents and the applicable company laws make any reference to wider ‘public’ considerations irrelevant

• Since the Act didn’t expressly require/authorize AWBI to decide whether to...