Ghanem v Australian Research Council

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FEDERAL COURT OF AUSTRALIA

Ghanem v Australian Research Council [2014] FCA 473

Citation: Ghanem v Australian Research Council [2014] FCA 473
Parties: ASHRAF GHANEM v AUSTRALIAN RESEARCH COUNCIL and MINISTER FOR EDUCATION
File number: ACD 125 of 2013
Judge: FOSTER J
Date of judgment: 13 May 2014
Catchwords: PRACTICE AND PROCEDURE – whether the applicant’s claims for relief should be summarily dismissed because the applicant has no reasonable prospect of prosecuting any of them
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1) and 13(1)
Australian Research Council Act 2001 (Cth), ss 51, 52(3)(d), 53, 59 and 60, Pt 7, Div 1
Federal Court of Australia Act 1976 (Cth), s 31A
Federal Court Rules 2011, r 26.01
Cases cited: Shammas v Canberra Institute of Technology [2014] FCA 71
Spencer v Commonwealth (2010) 241 CLR 118
Sutton v Commissioner of Taxation (1959) 100 CLR 518
Date of hearing: 4 April 2014
Place: Sydney (via video link to Canberra) (heard in Canberra)
Division: GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

79

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondents:

Mr J Davidson
Solicitor for the Respondents:  Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 125 of 2013
BETWEEN:

ASHRAF GHANEM
Applicant
AND:

AUSTRALIAN RESEARCH COUNCIL
First Respondent

MINISTER FOR EDUCATION
Second Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

13 MAY 2014

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a) and (c) of the Federal Court Rules 2011, the whole of this proceeding be summarily dismissed.

2.The applicant pay the respondents’ costs of and incidental to this proceeding as taxed or agreed.   

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 125 of 2013
BETWEEN:

ASHRAF GHANEM
Applicant
AND:

AUSTRALIAN RESEARCH COUNCIL
First Respondent

MINISTER FOR EDUCATION
Second Respondent

JUDGE:

FOSTER J

DATE:

13 MAY 2014

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA) (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. In this proceeding, the applicant, Dr Ghanem, seeks judicial review of two decisions, one of which was made by the Minister for Education (the Minister) and one of which was made by the Australian Research Council (ARC).  The ARC is the first respondent and the Minister is the second respondent.  The decisions which Dr Ghanem challenges are:

    (a)A decision by the ARC to make a recommendation to the Minister not to award a 2013 ARC Future Fellowship to Dr Ghanem; and

    (b)A decision by the Minister made on 8 November 2013 not to award a 2013 Future Fellowship to Dr Ghanem.

  2. Dr Ghanem mentions a third matter at par 3 on p 2 of his Amended Originating Application which he also challenges as a “decision”.  That matter is more appropriately characterised…

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Details
Case
[2014] FCA 473
Decision Date

CaseChat Overview and Summary

The case of Ghanem v Australian Research Council involves the applicant, Dr Ghanem, challenging the decision of the Australian Research Council (ARC) and the Minister for Education and Science to not fund his application under the Future Fellowship scheme. The respondents to the proceeding were the ARC and the Minister. The Federal Court was required to determine whether the proceeding should be summarily dismissed. The legal issues were whether Dr Ghanem had a reasonable prospect of success in his challenge and whether there was a reasonable cause of action in respect of his allegation that the General Assessors acted in bad faith.

The court considered the principles for summary dismissal and whether Dr Ghanem had a reasonable prospect of success in his challenge. The court found that Dr Ghanem’s argument that the ARC and the Minister committed an error of law by acting upon Professor Byrne’s recommendations in circumstances where those recommendations had not been supported by adequate reasons was precluded by binding High Court authority and thus fell within the last sentence of [25] in Spencer v Commonwealth. The court also considered whether there was a reasonable cause of action in respect of Dr Ghanem’s allegation that the General Assessors acted in bad faith. The court found that there was no reasonable cause of action in this respect.

The court determined that the proceeding should be summarily dismissed as Dr Ghanem had no reasonable prospect of successfully prosecuting the proceeding and there was no reasonable cause of action in respect of his allegation that the General Assessors acted in bad faith.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By these Reasons for Judgment, I determine the respondents’ summary judgment application. THE RELEVANT FACTS The Minister and the ARC read and relied upon two affidavits affirmed by Letitia Margaret Abela. Ms Abela is the In-House Legal Counsel at the ARC. She was and is familiar with the relevant processes undertaken by the ARC in respect of Future Fellowships. The two affidavits affirmed by Ms Abela were affirmed on 3 March 2014 and on 26 March 2014 respectively. The respondents also tendered as Exhibit A an ARC document in which the scores given to Dr Ghanem’s fellowship application by each of the persons who assessed it are set out. That document also includes brief commentary on the application given by each assessor. In support of his case and in answer to the respondents’ arguments, Dr Ghanem tendered and relied upon a number of documents which were annexed to an affidavit affirmed by him on 13 March 2014 and filed by him on 17 March 2014. He did not rely upon any other affidavits which he had filed in the proceeding. The evidence before me established the following facts. On 20 February 2013, the University of Canberra (UCAN) applied to the ARC for consideration for funding under the Future Fellowship scheme for 2013. UCAN’s application included Future Fellowship Proposal FT 130100026 titled “Integrated Microsystems for Chiral Doping Drug Testing in Sports” in which Dr Ghanem was listed as the Chief Investigator and Future Fellow Candidate. On 9 October 2013, the Chief Executive Officer of the ARC, Professor Aidan Byrne, made recommendations to the Minister regarding the Future Fellowship scheme for funding commencing in 2013. Professor Byrne’s recommendations included a recommendation from the ARC College of Experts to the effect that FT 130100026 was uncompetitive in the 2013 funding round. That recommendation was itself based upon recommendations coming forward from an ARC Selection Meeting held in the period 19–23 August 2013. On 15 October 2013, Professor Byrne made a submission to the Minister in the form of a Ministerial Briefing Note for Decision (BR13-003522) seeking approval for those Future Fellowship proposals which he was supporting. His submission also included his recommendations in respect of those proposals which he did not support. Included amongst Professor Byrne’s recommendations was a recommendation that Funding Proposal FT 130100026 not be funded. On 15 October 2013, the Minister approved all of the recommendations made by Professor Byrne contained in Briefing Note BR13-003522. On 8 November 2013, the ARC notified UCAN of the outcome of the proposals which that University had submitted for funding in 2013 under the Future Fellowships scheme. Included within that notification was notification that Proposal FT 130100026 had been unsuccessful in the 2013 funding round. The Minister announced publicly the outcomes of the 2013 Future Fellowships funding round on the same day viz 8 November 2013. On 5 December 2013, Dr Ghanem requested a Statement of Reasons from the ARC pursuant to s 13(1) of the ADJR Act setting out the reasons why funding application FT 130100026 had not been successful in the 2013 funding round.

Evidence

Evidence Before The Court

Professor Byrne provided a Statement of Reasons pursuant to that request on 7 January 2014. After setting out the framework pursuant to which the relevant decision was made, Professor Byrne said:4. Evidence on which the findings were basedThe ARC CEO’s decision to recommend that FT130100026 not be approved for funding Pursuant to clause 11.1.3 of the FT13 Funding Rules, Proposal FT130100026 was assessed by four external assessors and two College of Experts members. In accordance with clause 11.2, the applicant was provided with all external assessors’ comments on 22 May 2013, and provided a rejoinder by the due date of 4 June 2013. The ARC College of Experts considered the rejoinder alongside the assessors’ comments and scores.Of the cohort of 500 proposals considered by the Physical, Mathematical and Information Sciences and Engineering panel, FT130100026 was ranked 442 on the basis of all assessors’ scores. Following deliberations at the Selection meeting, 81 proposals out of 500 were recommended for funding in this panel.Following the assessment, and pursuant to section 33B(b) of the ARC Act, the recommendations were submitted by the Chief Program Officer to the ARC CEO for approval. On 9 October the ARC CEO agreed with the ARC College of Experts’ recommendation not to fund FT130100026.UC, as the Administering Organisation for FT130100026, was advised by email dated 8 November 2013 that the assessment process for the Future Fellowships scheme had been finalised and the Proposal was unsuccessful.5. Reasons for decisionThe ARC assessed FT130100026 along with a selection of others from the ARC Future Fellowships for funding commencing in 2013. (In relation to FT130100026, a copy of the Assesor’s comments is provided at Attachment A to this Statement.)Pursuant to section 33B(b) of the ARC Act, and clause 11.1.3 of the FT13 Funding Rules, on 9 October 2013 the CEO made a decision to agree with the recommendation of the ARC College of Experts that FT130100026 not be approved for funding, and provided this recommendation to the Minister responsible for the ARC. Professor Byrne attached to the Statement of Reasons which he furnished to Dr Ghanem a copy of each of the Detailed Assessments (A) to (D) made in respect of funding proposal FT130100026. The Briefing Note submitted to the Minister in respect of the 2013 round included as Attachment B a full list of proposals which Professor Byrne recommended not be funded. Attachment B included reference to Proposal FT130100026. In Attachment B to the Briefing Note, that proposal was described by Professor Byrne as “uncompetitive”. Most, if not all, of the other proposals described in Attachment B were also described as “uncompetitive”. Ms Abela said that the descriptor “uncompetitive” was defined at Attachment F to the Briefing Note to the Minister to mean that a proposal has been assessed in accordance with the Future Fellowship Funding Rules for funding commencing in 2013 as not being as competitive as the proposals which were recommended for funding.

Decision

Reasons for decision

Here, in addition to relying upon s 31A of the FCA, the respondents also rely upon r 26.01(1)(a) and r 26.01(1)(c) FCR. Rule 26.01(1)(c) FCR provides:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:…(c)no reasonable cause of action is disclosed; or... The respondents submit that Dr Ghanem has no reasonable prospect of successfully prosecuting the proceeding and, in addition, that, in respect of his allegation that the General Assessors acted in bad faith when they assessed his application, no reasonable cause of action is disclosed. I intend to apply the principles which I summarised in Shammas to my consideration and determination of the respondents’ summary dismissal application. In addition, the respondents’ advocate placed particular reliance on [25] in Spencer v Commonwealth (2010) 241 CLR 118 at 132 (per French CJ and Gummow J) where their Honours said:Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. The proposition was that Dr Ghanem’s argument that the ARC and the Minister committed an error of law by acting upon Professor Byrne’s recommendations in circumstances where those recommendations had not been supported by adequate reasons (as to which, see s 52(3)(d) of the ARC Act) was precluded by binding High Court authority (Sutton v Commissioner of Taxation (1959) 100 CLR 518) and thus fell squarely within the last sentence of [25] in Spencer. I shall return to this contention later in these Reasons when addressing Dr Ghanem’s grounds of review. Dr Ghanem’s CaseGround 1 – Dr Ghanem was Ineligible to Apply At [25]–[28] above, I have referred to Dr Ghanem’s argument that funding proposal FT130100026 was not able to be approved under s 51(1) of the ARC Act or recommended by the CEO of the ARC under subs 52(1) of that Act for such approval, as deserving financial assistance under Pt 7 Div 1 of that Act, because Dr Ghanem did not satisfy cl 9.1.2 being part of the eligibility criteria set out in the relevant approved Funding Rules.

Ratio Decidendi

Legal Principle Established

The ARC enters into confidentiality agreements with assessors in order to preserve the integrity of the selection process. Ms Abela informed the Court that she did not consider that she was in a position to breach those arrangements by revealing the names of the particular assessors involved in the assessment of Dr Ghanem’s proposal.CONSIDERATIONSome Relevant Principles Dr Ghanem filed and served a Written Submission dated 11 March 2014 in which he addressed the relevant principles of law relating to summary dismissal, the grounds of judicial review raised in his Amended Originating Application and the question of his standing to bring the present proceeding. There is no doubt that Dr Ghanem is a “person aggrieved” by the two decisions which he challenges. The respondents did not suggest otherwise. In Shammas v Canberra Institute of Technology [2014] FCA 71 at [50]–[51], I said, In Singh v Super City Home Loans Pty Ltd [2011] FCA 646, at [129], I summarised the principles to be applied when the Court comes to consider exercising its power to summarily dismiss a proceeding pursuant to s 31A of the Federal Court Act in light of the High Court’s decision in Spencer v The Commonwealth (2010) 241 CLR 118. It is not necessary to extract that summary in full here. It is sufficient to note the following:(a)The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to a rule of Court in the terms of O 11 r 16 of the Federal Court Rules 1979.(b)The power to terminate proceedings summarily should be exercised with caution.(c)There must be a high degree of certainty that the claimant cannot succeed if the proceeding is allowed to go to trial in the ordinary way.(d)There must be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success”. The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail. This test constitutes a radical departure from previous regimes which required that the proceeding must be shown to have no prospects of success.As I observed at [13] above, I am of the view that the test for summary dismissal laid down by r 26.01(a) FCR is the same test as the test for summary dismissal specified in s 31A of the Federal Court Act. Here, in addition to relying upon s 31A of the FCA, the respondents also rely upon r 26.01(1)(a) and r 26.01(1)(c) FCR. Rule 26.01(1)(c) FCR provides:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:…(c)no reasonable cause of action is disclosed; or... The respondents submit that Dr Ghanem has no reasonable prospect of successfully prosecuting the proceeding and, in addition, that, in respect of his allegation that the General Assessors acted in bad faith when they assessed his application, no reasonable cause of action is disclosed.