Ghanem v Australian Research Council

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FEDERAL COURT OF AUSTRALIA

Ghanem v Australian Research Council [2014] FCAFC 132

Citation: Ghanem v Australian Research Council [2014] FCAFC 132
Appeal from: Application for leave to appeal: Ghanem v Australian Research Council [2014] FCA 473
Parties: ASHRAF GHANEM v AUSTRALIAN RESEARCH COUNCIL and MINISTER FOR EDUCATION
File number(s): ACD 33 of 2014
Judge(s): FLICK, JAGOT AND PERRY JJ
Date of judgment: 7 October 2014
Catchwords: ADMINISTRATIVE LAW – leave to appeal – summary dismissal – unrepresented applicant – claim inadequately pleaded – inconsistent claims – whether claim could be subject of any meaningful relief – whether substantial injustice to applicant if leave refused
Legislation:

Australian Research Council Act 2001 (Cth) Pt 7 Div 1

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) r 26.01

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 3 FCR 397

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Sutton v Commissioner of Taxation (1959) 100 CLR 518

White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511

Date of hearing: 1 October 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Mr J Davidson of Australian Government Solicitor
Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

ACD 33 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ASHRAF GHANEM
Applicant
AND:

AUSTRALIAN RESEARCH COUNCIL
First Respondent

MINISTER FOR EDUCATION
Second Respondent

JUDGES:

FLICK, JAGOT AND PERRY JJ

DATE OF ORDER:

7 OCTOBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Subject to order 2, the application for leave to appeal be dismissed.

2.The application for leave to appeal be granted in respect of that part of ground 1 of the amended originating application for judicial review which states “[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning”.

3.The appeal be allowed.

4.The orders of 13 May 2014 be set aside and in lieu thereof the following orders be made:

(1) Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), all claims in the proceeding be summarily dismissed other than that part of ground 1 of the amended originating application for judicial review which states “[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning”.

(2)  Costs be reserved.

5.The matter be remitted to the docket judge for directions in relation to and hearing of that…

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Details
Case
[2014] FCAFC 132
Decision Date

CaseChat Overview and Summary

The case of Ghanem v Australian Research Council involved the applicant, seeking leave to appeal against a decision of the Federal Court which dismissed his application for judicial review. The applicant's application for review was predicated on a dispute regarding his eligibility to apply for a fellowship under the Australian Research Council Act 1951. The applicant alleged that the Council's decision to reject his application was unlawful, and that he was ineligible to apply for the fellowship under specific provisions of the Act.

The central legal issues before the court were whether the applicant's claims were adequately pleaded and consistent, and if there was any meaningful relief that could be granted. Additionally, the court had to consider whether denying leave to appeal would result in substantial injustice to the applicant. The court needed to determine whether the applicant's claims were sufficient to warrant judicial review and whether there was a basis for the applicant to appeal the earlier decision.

In addressing these issues, the court found that the applicant's claims were inconsistent and inadequately pleaded. The court held that the applicant's application for judicial review was not adequately framed to warrant relief. However, the court identified a specific claim in the applicant's application that warranted further consideration. This claim pertained to the applicant's eligibility to apply for the fellowship under the Act. The court concluded that this claim was sufficiently clear and warranted further judicial review. Consequently, the court dismissed the application for leave to appeal in part and granted it in respect of the specific eligibility claim. The court set aside the earlier orders and made new orders that directed the matter to be remitted for further consideration of the eligibility claim.

The final orders of the court were that the application for leave to appeal be dismissed except for the specific eligibility claim, the appeal be allowed in respect of that claim, and the matter be remitted for further consideration of that claim. The court also ordered that costs be reserved and that the respondents pay the costs of the applicant in relation to the application for leave and the appeal.

Orders

Orders of the court

1. Subject to order 2, the application for leave to appeal be dismissed.

2. The application for leave to appeal be granted in respect of that part of ground 1 of the amended originating application for judicial review which states “[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning”.

3. The appeal be allowed.

4. The orders of 13 May 2014 be set aside and in lieu thereof the following orders be made:

(1) Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), all claims in the proceeding be summarily dismissed other than that part of ground 1 of the amended originating application for judicial review which states “[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning”.

(2) Costs be reserved.

5. The matter be remitted to the docket judge for directions in relation to and hearing of that part of the amended originating application for judicial review set out in order 2 above.

6. The respondents pay the costs of the applicant/appellant in respect of the application for leave and the appeal, as agreed or taxed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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