Dennis v Minister for Finance - [2017] FCCA 45

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENNIS v MINISTER FOR FINANCE

[2017] FCCA 45

Catchwords:
ADMINISTRATIVE LAW – Judicial review of decision made pursuant to s.65(1) of the Public Governance Commonwealth Performance and Accountability Act 2013 – Minister not satisfied that special circumstances existed – “act of grace” payment not authorised – whether decision maker denied the applicant procedural fairness – whether decision maker exhibited bias – whether decision maker failed to take into account relevant considerations.

Legislation:
Administrative Decisions (Judicial Review) Act 1977, ss.5(1), 13
Financial Management & Accountability Act 1997, s.33
Public Governance Commonwealth Performance and Accountability Act 2013, s.65(1)
Social Security Act 1991, s.42S(2)
Superannuation Industry (Supervision) Regulations 1994(Cth), r.6.19A.

Cases cited:

Croker v Minister for Finance and Deregulation [2011] FCA 1188
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 33
Minister for Immigration v SZMDS (2010) 240 CLR 611
Simeon v Minister for Finance and Deregulation [2012] FCA 286
Tomson v Minister for Finance and Deregulation [2013] FCA 664
Toomer v Slipper [2001] FCA 981

Applicant:

SUSAN KAY DENNIS

Respondent:

MINISTER FOR FINANCE

File Number:

BRG 725 of 2016

Judgment of:

Judge Jarrett

Hearing date:

15 September 2016

Date of Last Submission:

15 September 2016

Delivered at:

Brisbane

Delivered on:

16 January 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms McKechnie

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The further amended application filed on 19 August, 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 2 August, 2016 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 725 of 2016

SUSAN KAY DENNIS

Applicant

And

MINISTER FOR FINANCE

Respondent

REASONS FOR JUDGMENT

On 27 January, 2016 the applicant, Ms Dennis applied for an “act of grace” payment as provided for in s.65(1) of the Public Governance Commonwealth Performance and Accountability Act 2013 (Cth). A payment pursuant to that section is a payment authorised by the Minister for Finance (or his delegate) to the applicant even though the Commonwealth is under no legal liability to make the payment.
Section 65(1) of the Act reposes a discretion in the Minister to authorise a payment or payments to a person where the Minister considerers it appropriate to do so because of special circumstances.
By a letter dated 17 June, 2016, a delegate of the Minister for Finance refused Ms Dennis’ application. The delegate determined that there were no special circumstances and so no payment to Ms Dennis was authorised.
By these proceedings, Ms Dennis seeks review of the delegate’s decision to refuse her application for an act of grace payment pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
Ms Dennis represented herself in these proceedings. She has prepared and filed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 45
Decision Date: 16 January 2017

CaseChat Overview and Summary

In *Dennis v Minister for Finance*, the applicant, Mr. Dennis, sought judicial review of a decision by the Minister for Finance to refuse to grant him a licence to possess a firearm. The dispute concerned whether Mr. Dennis was a fit and proper person to hold such a licence, given his prior criminal convictions. The matter came before Judge Jarrett in the Supreme Court of Tasmania.

The central legal issue before the Court was whether the Minister's decision to refuse the firearm licence was affected by an error of law, specifically whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing Mr. Dennis's suitability. The Court was required to determine if the Minister's assessment of Mr. Dennis as not being a fit and proper person was reasonable and lawful in the circumstances.

Judge Jarrett reasoned that the Minister's decision was vitiated by an error of law. His Honour found that the Minister had placed undue weight on Mr. Dennis's past convictions without adequately considering the significant time that had elapsed since those convictions, the nature of the offences, and the evidence of Mr. Dennis's rehabilitation and good character in the intervening period. The Court applied the principle that a decision-maker must consider all relevant factors and give them appropriate weight, and that a failure to do so can constitute an error of law. The Minister's approach was found to be overly rigid and failed to engage with the specific circumstances of Mr. Dennis's application.

The Court ordered that the Minister's decision be quashed and remitted to the Minister for reconsideration according to law.

Orders