Judicial Review Application – Cancelled Nuclear Materials Permit

Details of claim

Review the decision of the respondent to cancel or revoke permit which Springfield Ltd has been provided with for the purpose of possessing nuclear materials. (Permit to possess nuclear materials: under the Permit Number: 1872XMB)

Details of claim

The Applicant is aggrieved by the decision of the respondent because

1. A decision has been taken by the respondents in relation to the revocation of the licence possessed by Springfield Ltd. The licence had been granted to Springfield Ltd under the provisions of section 13 of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth). The primary purpose of providing the licence was that through it Springfield Ltd would have the right to conduct its operation of mining uranium in the territories of Western Australia. The decision of the respondent affects the interest of the applicant in a adverse manner.
2. The actions of the respondents have not been in good faith as to the revocation of the licence possessed by Springfield Ltd. The decision which has been made by the respondent may terminate the employment of the applicant.
3. The permit which had been issued  by the Ministry of foreign Affairs to Springfield Ltd contained several conditions which have been totally complied with by Springfield Ltd. Where the actions succeed the applicant may get certain benefits however on the failure of the applicant he may be subjected to detriments.

• The decision has been made by the respondents  to revoke the license without taking into consideration any evidence which way justify the decision of the applicants
• The respondents have violated the rules of natural justice while taking the decision to revoke the license  of Springfield Ltd
• No consideration has been provided to the respondents in relation to the relevant facts of the situation while taking the decision to revoke the license of Springfield Lt
• The most irrelevant fact have been taken into account by the respondents while taking the decision to revoke the license  of Springfield Ltd
• The decision to revoke the license  of Springfield Ltd has been taken in bad faith by the respondent
• Discretionary powers have been used by the respondents in compliance with a rule or policy without taking into account the situation of the case.
• The decision of the respondent  has been made by improper exercise of power provided by the enactment

1. An order with in relation to setting aside or quashing the decision which has been made by the respondent form the day the decision has been made.
2. An order to get back the license under s 13 of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) to possess nuclear products and get the decision of the respondent reversed.
3. An declaration that the respondents indulged in improper and unlawful decision making
4. An order which is considered to be just and fair by the court in order to establish the principles of justice between the parties
5. An order in relation to the cost incurred by the applicant in relation to the appeal

The Applicant’s address for service is:

Place: Springfield Ltd.30, Bourke Street, 3000 Melbourne, VIC, Australia

Email: [email protected]

The Applicant’s address is Springfield Ltd.30, Bourke Street, 3000 Melbourne, VIC, Australia

Service on the Respondent

It is intended to serve this application on all Respondents.

Signed by

Form 17

Rule 8.05(1)(a)

Statement of claim

No. 222 of 2018

Federal Court of Australia

District Registry: VICTORIA

Division: GENERAL

Mr. Burns

Applicant

Director of Safeguards

Respondent

I Jurisdiction

1. Jurisdiction is provided to the federal court under the provisions of section 8 of the Act.
2. With respect to jurisdiction the applicant asserts that they have jurisdiction to make an application in relation to the judicial review against the decision provided by the respondent in relation to the revocation of the licence possessed by Springfield Ltd. The licence had been granted to Springfield Ltd under the provisions of section 13 of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth). The primary purpose of providing the licence was that through it Springfield Ltd would have the right to conduct its operation of mining uranium in the territories of Western Australia.
   • This is a kind of decisionon which the Act is applicable 
   • The decision is a ‘decision. It constitutes an administrative activity which is a final, ultimate and substantive decision of the respondent rather than a procedural form of decision.
   • The characteristics of the decision are administrative in nature and not judicial or legislative nature.
   • Schedule 1 of the act does not exclude the decision form judicial review

II Standing

• The applicant has been aggrieved by the decision of the respondent as there has been an adverse impact on the interest of the applicant due to the decision of the respondent. In the light of such situation the applicant has a right to apply for a judicial review.
• When a party has successfully passed or satisfied the special interest test provided through the provisions of common law they are deemed as an aggrieved party.
• There is a special interest which the applicant holds in relation to the application’s subject matter which us much more then only an emotional or intellectual concern.

• The applicant will be subjected to the loss of reputation in relation to the revocation of the licence. The applicant is a member of the board of directors of Springfield Ltd which held the license which has been revoked. It is the duty of the applicant to act in the best interest of the companyand depict diligence and care while discharging his duties.

The applicant will be subjected to financial determents if the license is taken away from the company as the interest of the company is directly related to the interest of the applicant.

III GROUNDS OF ERROR

1. BRECH OF NATURAL JUSTICE

• Under the provisions of a statutory judicial review the rule of procedural fairness is present
• It has been confirmed by the full court that the ministers are bound to the rules off natural justice in relation to making of a decision.
• The application of natural justice rules is done as a duty of observing procedural fairness in relation to making a decision which has an effect on interests and rights in a direct way.  The standing test and the interest test are applied togetherand therefore the applicants’ interest has a direct impact as discussed in the standings section.
• It has not provided any where through the provisions of Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) that natural justice rules should not be followed
• Therefore, natural justice principle has to be afforded to the applicant with respect to the decision made by the respondent.

1. Lack of evidence or Material

• It is the duty of the respondent to take into consideration proper evidence and materials for the purpose of making a decision
• In the permit which had been provided by the respondent there were a list of conditions
• The conditions stated that any transport and storage of nuclear material has to be incompliance with Convention on the Physical Protection of Nuclear Material, Springfield Ltd had to take actions in relation   to vetting its employees and ensure that they will not put the safety of Australians in a danger and finally Springfield Ltd will provide the Non-Proliferation Office and Australian Safeguards every three months the report of its activities.
• All such conditions have been complied with by the company and there is no evidence or Material which the respondents have in relation to the decision making

1. No consideration to the relevant facts of the situation

• No consideration has been provided by  the respondents in relation to the relevant facts of the situation while taking the decision to revoke the license of Springfield Lt
• The respondents failed to took into consideration that the company has complied with all of the requirements set out through the permit.

• The respondent did not take into consideration the fact that the applicant were committed towards complying with the requirements and thus they had appointed a security company to take care of the issue.
• It was the duty of the respondents to take into consideration such factorswhich they have breached.

1. Irrelevant fact have been taken into account by the respondents

• The most irrelevant fact have been taken into account by the respondents while taking the decision to revoke the license  of Springfield Ltd
• It ministers should not take into consideration irrelevant matters while making a decision
• The respondents have taken the decision based on a youtube video and no further investigation against such video and thus have not complied with their duty.
• The respondents have not considered the intention which the wrongdoer had in relation to making the video which they should have taken into account as a relevant factor

1. Decision taken in bad faith

• The decision to revoke the license  of Springfield Ltd has been taken in bad faith by the respondent
• The respondents have a few shares in Tinfoil Ltd which is the competitor to Springfield Ltd
• The decision has been taken by the respondent in pursuit of personal interest and not for a proper purpose of the legislation.  
• There has to be clear legislative intention in order to justify a statutory discretion as unfettered or absolute where the rights of individuals have been affected by the discretion.

1. Use of Discretionary power without taking into account the situation of the case

• Discretionary powers have been used by the respondents in compliance with a rule or policy without taking into account the situation of the case and the legislation permit judicial review in relation to such situations.
• The decision of respondent is unreasonable as it does not have intelligible and evident justification.
• The respondent used the powers in an improper manner. In case where there is no express qualification or condition in relation to the power in any way it has the be used in compliance to the purpose and the scope of the legislation.

Although the rules of the legislation do not provide that the minister cannot take such decision but they provide for the fact that the decision has to be accountable and not arbitrary.

In relation to the revocation of the permit it has been stated by the respondent that Springfield Ltd violated condition (ii) of the permit by appointing guards who were not in a close communication with a “response force”. However there was no such requirement in the permit and the respondent has taken an improper decision.

This decision which has been taken by the respondent in the given situation  is so very unreasonable that no reasonable authority without a personal interest in the decision would not have taken it

1. Improper use of power

A judicial review application can be made under the provisions of section 5(1)(e)of the Act where the decision which has been made was done in an improper use  of power provided by the enactment in relation to the purpose for which it had been enacted.

When the power is used by the minister is not in compliance with the purpose for which the minister has been provided with such power it is deemed to be an improper exercise of power.

Where the respondent has exercised a power which is not in compliance with the purpose of the legislation it would be invalid.  

The Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) does not provide power to act in pursuit of personal interest and declare conflict of interest situation. It has been further provided in para 18 of FACTUAL ADDENDUM that there has been no coordination between the minister and the Australian Safeguards Office in relation to how the Minister’s power under the provisions of the legislation have to be used and who can use them.

Orders sought

Declarations

• A declaration that the respondents indulged in improper and unlawful decision making
• In revoking the permit if the respondents breached the rules of natural justice
• The decision which had been made by the respondent was in bad faith
• A declaration that the respondents did not take into consideration relevant situation while making their decision

Orders

• An order with in relation to setting aside or quashing the decision which has been made by the respondent form the day the decision has been made.
• An order to get back the license under s 13 of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) to possess nuclear products and get the decision of the respondent reversed.
• An order in relation to the cost incurred by the applicant in relation to the appeal

Courts discretion

• An order which is considered to be just and fair by the court in order to establish the principles of justice between the parties
• The applicants seeks judicial review without prior merit review as investigation into the actions of the respondents is not allowed.

This pleading was prepared by [Name], lawyer

I [name of lawyer] 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:

Signed by [Name of lawyer]

Lawyer for the Applicant

 Kioa v West (1985) 159 CLR 550, 584 (Mason J).  

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Ainsworth (1992) 175 CLR 564, 597 (Brennan J); M61/2010E v Commonwealth (2010) 243 CLR 319, 360 [105] (‘M61/2010E’).  

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230.  

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 336.  

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.

Burns v ANU (1982) 40 ALR 707.  

Chapman v Tickner (1995) 55 FCR 316, 350  

Corporation Act 2001 (Cth)

Ebner.v Official Trustee [2000] HCA 63.  

G & M Nicholas Pty Ltd and Others v Minister for Finance and Deregulation [2009] FCA 121.  

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 171 (Brennan CJ, Gaudron and Gummow JJ); Clement v Minister for Finance and Deregulation [2009] FMCA 43, [22] (Neville FM).  

Kioa v West (1985) 159 CLR 550.  

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367.  

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367.  

Ogle v Strickland (1987) 13 FCR 306, 307. Standing tests under the ADJR Act and the common law are regarded as the same. See Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64,79.

Ombudsman Act 1976 (Cth) s 5(2)(a).  

R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170, 186.  

Schlieske (1988) 84 ALR 719, 724–5 (Wilcox and French JJ, with whom Fox J agreed)citing amongst others Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, 24 (Mason J)  

South Australia v O’Shea (1987) 163 CLR 378 (‘O’Shea’).  

Stirling v Minister for Finance [2017] FCA 874, [45] (Tracey J) (‘Stirling’).