Dobie v Minister for Finance

Link copied
Case Copied 25 min read

FEDERAL COURT OF AUSTRALIA

Dobie v Minister for Finance [2022] FCA 528

Review of: Decision of Minister for Finance made on 24 March 2021
File number: QUD 126 of 2021
Judgment of: RANGIAH J
Date of judgment: 11 May 2022
Catchwords: HUMAN RIGHTS - Application for judicial review of decision to refuse to authorise act of grace payment pursuant to s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) – whether delegate erred in applying s 65(1) or engaged in unreasonable, irrational or illogical reasoning – whether delegate erred by failing to properly consider applicant’s human rights – whether delegate erred by failing to properly consider whether applicant had been subject of miscarriage of justice – where delegate found no special circumstances existed to make act of grace payment appropriate – where no legal error identified – application dismissed.
Legislation:

Criminal Code (Cth) s 134.2

Financial Management and Accountability Act 1997 (Cth) s 33

Public Governance, Performance and Accountability Act2013 (Cth) s 65

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Quintano v Minister for Finance and Deregulation [2014] FCA 531

R v Dobie [2016] QCA 260

Tomson v Minister for Finance and Deregulation (2013) 136 ALD 610; [2013] FCA 664

Toomer v Slipper [2001] FCA 981
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 63
Date of last submissions: 2 December 2021 (Applicant)
14 December 2021 (Respondent)
Date of hearing: 17 November 2021
Counsel for the Applicant: Mr B McGlade
Solicitor for the Applicant: Sentry Law
Counsel for the Respondent: Mr M McKechnie
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 126 of 2021
BETWEEN:

KEITH WILLIAM DOBIE

Applicant
AND:

MINISTER FOR FINANCE

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RANGIAH J:

  1. The applicant applies for judicial review of a decision made by a delegate of the respondent (the Minister) to refuse to authorise an “act of grace” payment under s 65 of the Public Governance, Performance and Accountability Act2013 (Cth) (the Act).

  2. The applicant was convicted of a Commonwealth offence and sentenced to two years’ imprisonment, but his conviction was set aside on appeal.  Although a retrial was ordered, the Commonwealth Director of Public Prosecutions (CDPP) decided to enter a nolle prosequi. In the meantime, the applicant had served 321 days in prison without having been lawfully convicted of any offence. Those circumstances formed the basis for his application under s 65 of the Act.

  3. I will proceed by describing the factual background and the delegate’s reasons before considering the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Dobie v Minister for Finance and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCA 528
Decision Date

CaseChat Overview and Summary

The applicant, Dobie, sought judicial review of a decision by the Minister for Finance to refuse an act of grace payment under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth). The applicant contended that the delegate erred in applying s 65(1) or engaged in unreasonable, irrational, or illogical reasoning. Additionally, the applicant argued that the delegate failed to properly consider their human rights and whether they had been subject to a miscarriage of justice. The delegate concluded that no special circumstances existed to make an act of grace payment appropriate.

The court was required to determine whether the delegate erred in applying s 65(1) or engaged in unreasonable, irrational, or illogical reasoning. The court also had to consider whether the delegate properly assessed the applicant's claims of human rights violations and whether they had been subject to a miscarriage of justice. The primary focus was on whether the delegate's decision was legally sound and whether it was based on appropriate considerations.

The court examined the delegate's decision and found that it was not legally flawed. The delegate had properly considered the relevant guidelines and the circumstances of the case. The court held that the delegate's conclusion that no special circumstances existed was reasonable. The delegate appropriately weighed the findings of the Queensland Court of Appeal and the decision of the Commonwealth Director of Public Prosecutions. The court rejected the applicant's argument that the delegate failed to properly consider the presumption of innocence or the applicant's human rights. The court found that the delegate's decision was rational and did not involve an abuse of power.

The court dismissed the application for judicial review. The applicant was ordered to pay the respondent's costs of the proceeding. The court's reasoning was that the delegate's decision was based on appropriate considerations and did not involve any legal error. The court found that the delegate had correctly applied the relevant provisions of the Act and had not engaged in unreasonable, irrational, or illogical reasoning.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I will proceed by describing the factual background and the delegate’s reasons before considering the grounds of the application. Background On 25 November 2015, the applicant was convicted in the District Court of Queensland of an offence of obtaining financial advantage by deception under s 134.2 of the Criminal Code (Cth) and was sentenced to two years’ imprisonment. The allegations were that the applicant had lodged four false business activity statements claiming GST refunds totalling $17,392. The applicant appealed against his conviction to the Queensland Court of Appeal (the QCA). His appeal was successful and his conviction was quashed: R v Dobie [2016] QCA 260. One of the successful grounds of appeal concerned the CDPP having provided the jury with an incorrect transcription of an oral statement made by the applicant. The transcription contained an admission which had never been made. The QCA held that this, coupled with a misdirection from the trial judge during the trial, resulted in the trial miscarrying so far, “as hardly to be a trial at all”, and that a “substantial miscarriage of justice” had occurred. The QCA ordered a retrial and the applicant was released on bail. The applicant had been imprisoned for 321 days before his release. The CDPP then decided to enter a nolle prosequi, bringing the prosecution to an end. From around 14 February 2017, the applicant made a number of requests of the Minister for an act of grace payment pursuant to s 65(1) of the Act. These requests were refused. By correspondence dated 6 and 7 December 2020, the applicant made another request for an act of grace payment. The applicant’s case was essentially that he should receive compensation because he had spent 321 days in jail and suffered considerable associated losses in consequence of the CDPP’s conduct and the associated miscarriage of justice. He also contended his human rights had been breached. The request for an act of grace payment was considered by a delegate of the Minister. On 24 March 2021, the delegate made a decision declining to authorise any payment. The delegate provided written reasons for the decision. On 20 April 2021, the applicant filed his application for judicial review of the delegate’s decision.The delegate’s reasons The delegate’s decision of 24 March 2021 was, “not to authorise an act of grace payment in this instance”. The delegate stated he had had regard to the full contents of the Departmental file relating to his request, including the applicant’s previous requests dated 14 February 2017, 1 August 2017 and 31 May 2019. The delegate had regard to the guidelines in the Resource Management Guide No. 401, Requests for discretionary financial assistance under the Public Governance, Performance and Accountability Act 2013. The Delegate also had regard to the guidelines in the Resource Management Guide No. 409, Scheme for Compensation for Detriment Caused by Defective Administration. The delegate noted that the applicant had sought a payment as compensation for a miscarriage of justice. The applicant relied on the conduct of the CDPP during the trial, specifically that a document had been placed before the jury that erroneously stated he had admitted he had not been engaged in a business of any kind during the period of 1 October 2006 and 30 September 2007, which contradicted his defence that he had accidentally claimed GST amounts which were actually owing to another business. The applicant also relied upon a misdirection by the District Court judge in relation to how the jury should consider his defence of mistake of fact. By the time the applicant’s conviction was overturned, he had served 321 days in prison, had suffered loss of his business and had experienced a deterioration of his health. The applicant claimed he should be compensated for his losses as there was a presumption of innocence and he had not been convicted under any law. He also considered that his imprisonment and absence of compensation constituted a breach of his human rights.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The delegate concluded:Having considered all the relevant material available to me, I do not consider there to be special circumstances that would make an act of grace payment to you appropriate.In forming that conclusion I note that it is the usual process that decsions of a court are open to appeal to a higher court. I note in your case that the errors of the CDPP and the misdirection by the Judge were remedied by the Queensland Appeals Court, which quashed your conviction. As this is part of the usual process of appeals within the court system I do not consider the outcome of your appeal to be a special circumstance.I also note and give considerable weight to the findings of Justice Fraser in that decision, who found that ‘it was reasonably open to the jury ... to be satisfied beyond reasonable doubt that the appellant acted dishonestly [by claiming] amounts ... he was not entitled to.’ I also note and give weight to the fact that the Court of Appeal did not acquit you, rather ordered that a new trial be conducted.I note that the CDPP have advised that the decision not to proceed with a retrial referred to as a nolle proseque, was made for ‘public policy’ reasons, not due to concerns about the sufficiency of the evidence. Those public policy reasons relate to the fact that you had already substantially served the sentence sought by the Commonwealth.While I note that the nolle proseque decision leaves open your assertion that your are innocent at law (and that your detention was unlawful), I consider that the decision by the CDPP is a normal and reasonable approach to the management of prosecutions, which balances the various objectives of the criminal justice system with the need to be prudent with Commonwealth expenditure and avoid waste of the time of the Court. I do not consider that special circumstances relevant to s 65(1) arise in the taking of the decision not to proceed with a retrial.I have had regard to whether Australia’s Human Rights obligations under International Law could be considered ‘special circumstances’, and accept that a breach of your Human Rights in the absence of an alternate remedy, could be considered as constituting a ‘special circumstance’. However, based on the information you have provided, I am unable to identify any specific breach of your Human Rights that might create a special circumstance relevant to s 65(1).I note that ICCPR subsection 14(6) does provide an obligation to compensate victims of miscarriage of justice, however that provision only applies to matters ‘finally determined’. As your conviction was overturned by the Appeals Court, that provision does not apply to you. I also note that the Australian Human Rights Commission is the appropriate authority to review whether your human rights have been impacted by the Commonwealth and that it is open you to seek a determination in relation to your circumstances.ConclusionI have considered your claims seeking an act of grace payment, however I do not accept that there are special circumstances relevant to section 65 (1) of the PGPA Act. While I accept that the CDPP did provide an unauthorised document to the jury during your trial, and that Judge Wall did mislead the jury, those errors have been remedied by the the decision of the Queensland Court of Appeal.I do not consider that the decision by the CDPP not to proceed with the retrial ordered by the Queensland Court of Appeal gives rise to special circumstances. That decision was made on the basis of the usual public policy considerations, largely related to the fact that you had substantially served the sentence sought by the Commonwealth, and a judgement that there was little value served by proceding with a retrial.While I note your assertion that you should be regarded as innocent under law, and compensated for ‘unlawful’ imprisonment, I do not accept that the facts of this matter support a conclusion that the nolle proseque approach was unreasonable to the extent that an act of grace payment would be appropriate.(Errors in the original.)ConsiderationGround 1: Alleged misunderstanding or misapplication of s 65(1) of the Act

Ratio Decidendi

Legal Principle Established

Each of the applicant’s three categories of error encompassed in the first ground of review must be rejected.Ground 2: unreasonable, illogical and irrational reasoning The applicant’s second ground of review is as follows:2.The delegate engaged in unreasonable, illogical and irrational reasoning (and made unreasonable, illogical and irrational findings), and otherwise fell into an error of law, in: (a) giving “considerable weight” to the Queensland Court of Appeal’s finding that it was “open” to the jury to have convicted the Applicant without having regard to the presumption of innocence; and (b) finding that the Commonwealth Director of Public Prosecutions’ entry of a nolle prosequi “left open” the issue of whether the Applicant was innocent at law of the offence he had historically been charged with (in circumstances where the Applicant was presumed at law to be innocent of such an offence). The delegate gave “considerable weight” to the findings of the QCA that it was “open” for the jury to convict the applicant. The applicant submits that it is difficult to see what reasonable, logical and rational basis exists for giving “considerable weight” to a conclusion that it was merely open to the jury to convict bearing in mind that “open” simply means that a reasonable person could have (but not necessarily would have) concluded that the applicant committed the offence. Further, the delegate made no mention of the presumption of innocence that the applicant was entitled to be afforded. The applicant relies on Briginshaw v Briginshaw (1938) 60 CLR 336 where Dixon J observed at 363, “…weight is given to the presumption of innocence and exactness of proof is expected…” The applicant submits that, whether or not Briginshaw represents a principle of law for administrative decision-making, reasonable, rational and logical decision-makers do not accept or give weight to allegations without giving weight to the presumption of innocence. To do so is to engage in a fact finding and reasoning process that no other reasonable, logical and rational decision-maker would engage upon. The delegate also found, “I note that the nolle proseque [sic] decision leaves open your assertion that your [sic] are innocent at law”. The applicant submits that was also wrong, as he is presumed at law to be innocent and the delegate’s conclusion to the contrary involves a misunderstanding of the position at law. The respondent submits that there is no requirement under s 65(1) of the Act to consider or apply the presumption of innocence and that the delegate’s failure to do so does not make the decision unreasonable, illogical and irrational. In Quintano v Minister for Finance and Deregulation [2014] FCA 531, Nicholas J held at [8]:It is apparent from the language of s 33, that the Minister may only authorise a payment under that provision if he or she considers it appropriate to do so because of “special circumstances”. However, what constitutes special circumstances justifying the making of such a payment is for the Minister to determine having regard to any matter that he or she considers relevant consistent with the subject, scope and purpose of the Act. In exercising the discretion under s 33 the Minister must not make a decision that is unreasonable in the legal sense, by which I mean that it must not be capricious, plainly unjust, or otherwise involve an abuse of power…