Case: Fagan v The Crimes Compensation Tribunal [1982] HCA 49 ; (1982) 150 CLR 666
Outcome: distinguished
The committees relied on the concurring judgment of Brennan J in Fagan v The Crimes Compensation Tribunal [1982] HCA 49 ; (1982) 150 CLR 666 at 681-682. His Honour there was dealing with whether it was appropriate to make an order for costs against the tribunal which had appeared as the active contestant in the proceedings, notwithstanding the observations of the Court in Hardiman (144 CLR at 35-36). Brennan J said: 'But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391) and neither a law officer nor a public official is heard by the Court (cf Reg v Cook; Ex Parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the Court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense, the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs.' 7 The question here is slightly different. The committees are charged with making administrative decisions, the effect of which can have a profound impact upon the professional standing and careers of doctors practicing in the Commonwealth. The committees each appeared, as I noted in my earlier judgment, as active protagonists in the proceedings. Counsel were unable to identify any previous decision of the Court in which a submission had been made that committees had engaged inappropriately by being the active respondent to proceedings in the sense identified in Hardiman (144 CLR at 35-36). Counsel for the committees also drew my attention to the decision of the Court of Appeal of the Australian Capital Territory in Regina v Doogan; Ex Parte Lucas-Smith [2005] ACTSC 74 ; (2005) 193 FLR 239, especially at 279-280 [179]-[180] where Higgins CJ, Crispin and Bennett JJ referred to the principles in Hardiman 144 CLR at 35-36 and Brennan J's remarks in Fagan 150 CLR at 681-682. 12 As Brennan J recognised in Fagan 150 CLR at 681-682, there are circumstances in which administrative decision makers can and should appear as active protagonists in litigation involving the correctness in law of their decisions, but that is not the ordinary course. The decision in Hardiman [1980] HCA 13 ; 144 CLR 13 is well known. It is not necessary for statute to make provision for there to be a proper contradictor where challenges are made to the administrative decisions of persons charged under legislation with the duty to decide matters. In Fagan 150 CLR at 681-682 Brennan J, pointed out that it could be appropriate for the decision maker to appear and take an active part in proceedings where the Attorney-General, as the representative of the public interest, or some other appropriate officer of the Commonwealth in a case such as the present, cannot or does not intervene to represent the public interest.