McGough v Minister for Finance - [2021] FCCA 290

FEDERAL CIRCUIT COURT OF AUSTRALIA
McGough v Minister for Finance [2021] FCCA 290

File number(s): PEG 216 of 2020

Judgment of: JUDGE LUCEV

Date of judgment: 17 February 2021

Catchwords:
ADMINISTRATIVE LAW – Judicial review – refusal to authorise an act of grace payment

ALTERNATIVE DISPUTE RESOLUTION – Requirement for Court to consider if alternative dispute resolution may help resolve the dispute – factors which may help resolve dispute – obligation to advise parties to use alternative dispute resolution

PRACTICE AND PROCEDURE –– Whether proceedings to be adjourned pending mediation – relevant factors for consideration

WORD AND PHRASES – “may help” – “must” – “must advise”

Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 3(2)(c), 22, 23, (1) and (2), 24, 42

Cases cited:
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314, (1995) 22 AAR 261, (1995) 134 ALR 51

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, (2007) 236 ALR 720, (2006) 70 IPR 146

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Pty Ltd & Ors [2010] FMCA 932, (2010) 244 FLR 335

Director of Public Prosecutions (Vic) v Drage (1993) 17 MVR 390

Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108

Kosovich v Mancini (1982) 31 SASR 272

Posner v The Collector for Inter-state Destitute Persons (Vic) [1946] HCA 50, (1946) 74 CLR 461, [1947] VLR 276, [1947] ALR 61, (1946) 20 ALJ 444

Number of paragraphs: 18

Date of last submission/s: 17 February 2021

Date of hearing: 17 February 2021

Place: Perth

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms S Oliver

Solicitor for the Respondent: Ms Solene Yik Long
ORDERS

PEG 216 of 2020

BETWEEN:
LINDA MCGOUGH

Applicant

AND:
MINISTER FOR FINANCE

Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

17 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The further hearing of this part heard matter be adjourned pending mediation in accordance with Order 2.
2.The matter be relisted for mediation before a Registrar of this Court on a date to be fixed by that Registrar.
3.If the matter is not resolved at mediation, the matter be listed for a further directions hearing before Judge Lucev on a date to be fixed.
4.Costs of today be reserved.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)
JUDGE LUCEV

The task of a Chapter III federal court has often been said by the Federal Court to be to resolve disputes or quell controversies: see, for example, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, (2007) 236 ALR 720, (2006) 70 IPR 146 at [47] per Rares J, Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 at [82] per Greenwood J. In aid of that task, the legislature has enacted provisions in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA…

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: [2021] FCCA 290
Decision Date: 17 February 2021

CaseChat Overview and Summary

In the matter of *McGough v Minister for Finance*, heard before Judge Lucev, the applicant sought judicial review of the respondent's refusal to authorise an act of grace payment. The core of the dispute concerned the applicant's entitlement to such a payment and the Minister's decision-making process in denying the request.

The court was required to determine whether it should adjourn the proceedings pending mediation, and if so, what factors were relevant to that consideration. Central to this was the interpretation of provisions requiring the court to consider if alternative dispute resolution "may help" resolve the dispute and the obligation to "must advise" parties to use such methods.

Judge Lucev reasoned that the phrase "may help" indicated a broad discretion for the court to consider mediation, not a mandatory requirement. The court considered various factors, including the nature of the dispute, the potential for a mediated resolution to be more efficient and cost-effective than continued litigation, and the willingness of the parties to engage in the process. The court concluded that mediation was likely to assist in resolving the dispute.

Accordingly, the court ordered that the further hearing of the matter be adjourned pending mediation before a Registrar. If mediation did not resolve the dispute, the matter was to be relisted for a further directions hearing before Judge Lucev. Costs of the day were reserved.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The further hearing of this part heard matter be adjourned pending mediation in accordance with Order 2.

2. The matter be relisted for mediation before a Registrar of this Court on a date to be fixed by that Registrar.

3. If the matter is not resolved at mediation, the matter be listed for a further directions hearing before Judge Lucev on a date to be fixed.

4. Costs of today be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PEG 216 of 2020
Judgment of:	JUDGE LUCEV
Date of judgment:	17 February 2021
Catchwords:	ADMINISTRATIVE LAW – Judicial review – refusal to authorise an act of grace payment ALTERNATIVE DISPUTE RESOLUTION – Requirement for Court to consider if alternative dispute resolution may help resolve the dispute – factors which may help resolve dispute – obligation to advise parties to use alternative dispute resolution PRACTICE AND PROCEDURE –– Whether proceedings to be adjourned pending mediation – relevant factors for consideration WORD AND PHRASES – “may help” – “must” – “must advise”
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth), ss 3(2)(c), 22, 23, (1) and (2), 24, 42
Cases cited:	Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314, (1995) 22 AAR 261, (1995) 134 ALR 51 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, (2007) 236 ALR 720, (2006) 70 IPR 146 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Pty Ltd & Ors [2010] FMCA 932, (2010) 244 FLR 335 Director of Public Prosecutions (Vic) v Drage (1993) 17 MVR 390 Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 Kosovich v Mancini (1982) 31 SASR 272 Posner v The Collector for Inter-state Destitute Persons (Vic) [1946] HCA 50, (1946) 74 CLR 461, [1947] VLR 276, [1947] ALR 61, (1946) 20 ALJ 444
Number of paragraphs:	18
Date of last submission/s:	17 February 2021
Date of hearing:	17 February 2021
Place:	Perth
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms S Oliver
Solicitor for the Respondent:	Ms Solene Yik Long

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	17 FEBRUARY 2021