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Priestley v Godwin (No 2)

Priestley v Godwin (No 2)

Case [2008] FCA 1453 25 September 2008

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FEDERAL COURT OF AUSTRALIA
Priestley v Godwin (No 2) [2008] FCA 1453
STATUTES – whether s 79 of the Judiciary Act 1903 (Cth) operates to make s 21(1) of the Human Rights Act 2004 (ACT) applicable to proceedings in the Federal Court heard in the ACT concerning the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules – the Human Rights Act applies to the interpretation of Territory laws – s 21(1) of the Human Rights Act is not applicable to these proceedings – the requirements of independence and impartiality in s 21(1) of the Human Rights Act do not relevantly add to the test in Ebner v Official Trustee in Bankruptcy
Federal Court of Australia Act 1976 (Cth) s 31A
Human Rights Act 2004 (ACT) ss 21(1), 29, 30
Judiciary Act 1903 (Cth) s 79
Legislation Act 2001 (ACT) ss 7, 13
Federal Court Rules O 20 r 5
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 cited
Priestley v Godwin [2008] FCA 1179 considered
Solomons v District Court of New South Wales (2002) 211 CLR 119 cited
MICHAEL PRIESTLEY v ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
ACD 1 OF 2008
MICHAEL PRIESTLEY v THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES AND SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE
ACD 2 OF 2008
BENNETT J
25 SEPTEMBER 2008
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 1 OF 2008

BETWEEN:

MICHAEL PRIESTLEY
Applicant

AND:

ANNWYN GODWIN
PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 2 OF 2008

BETWEEN:

MICHAEL PRIESTLEY
Applicant

AND:

THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES
First Respondent

SENATOR THE HONOURABLE ALAN BAIRD FERGUSON
PRESIDENT OF THE SENATE
Second Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

25 SEPTEMBER 2008

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:
1.The application for disqualification on the fourth ground be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 1 OF 2008

BETWEEN:

MICHAEL PRIESTLEY
Applicant

AND:

ANNWYN GODWIN
PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 2 OF 2008

BETWEEN:

MICHAEL PRIESTLEY
Applicant

AND:

THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES
First Respondent

SENATOR THE HONOURABLE ALAN BAIRD FERGUSON
PRESIDENT OF THE SENATE
Second Respondent

JUDGE:

BENNETT J

DATE:

25 SEPTEMBER 2008

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

The substantive applications in these proceedings seek orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) requiring the…

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.

Continue reading Priestley v Godwin (No 2)

Details

AGLC: Priestley v Godwin (No 2) [2008] FCA 1453
Case: [2008] FCA 1453
Decision Date: 25 September 2008

CaseChat Overview and Summary

Priestley v Godwin (No 2) involved a constitutional challenge brought by Mr Priestley against the Federal Court. Mr Priestley sought to disqualify the judge from hearing the case on the basis of perceived bias and lack of impartiality, arguing that no judge from the Federal Court could fairly determine the constitutional matter. The case required the court to address whether the judge’s alleged bias or lack of impartiality warranted disqualification, particularly considering the judge’s previous rulings in the matter and the statutory provisions under the Human Rights Act.

The court needed to determine whether the arguments presented by Mr Priestley regarding bias and disqualification were sufficient to warrant recusal. The judge had previously ruled on similar arguments and found them to be without merit. Mr Priestley’s submission in this instance mirrored his previous arguments, focusing on the contention that no Federal Court judge could impartially hear the constitutional challenge. The court considered the principles of judicial independence and impartiality, alongside statutory provisions, to assess the validity of the disqualification application.

The court found that Mr Priestley’s arguments did not present any new grounds for disqualification or recusal beyond what had been previously considered and rejected. The principles of judicial independence and impartiality, as well as the statutory provisions under the Human Rights Act, did not support the contention that the judge should be disqualified. The court concluded that the application for disqualification on the fourth ground should be dismissed, as it did not meet the threshold for recusal.

The court ordered that the application for disqualification on the fourth ground be dismissed. This decision reinforced the previous rulings that the arguments presented did not justify the disqualification of the judge, thereby allowing the proceedings to continue as planned.

Orders

Orders of the court

1. The application for disqualification on the fourth ground be dismissed.

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

BENNETT J

Mr Priestley has not advanced any arguments as to my competence or independence, or the appearance of independence, or of impartiality, that were not advanced in his previous applications. His submission remains based on his contention that neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. That has been dealt with in Priestley. The result is the same under the common law and, if it applied, under s 21(1) of the Human Rights Act. In his submission that the requirements in Article 14.1 of the ICCPR must be considered separately by reason of s 21(1) of the Human Rights Act, Mr Priestley has not added to the substance of the grounds for disqualification or recusal that he made previously.CONCLUSION It follows that the application that I disqualify myself from determining these proceedings on the fourth ground should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Full text does not contain this section.

Citations

AGLC Citation

Priestley v Godwin (No 2) [2008] FCA 1453

Most Recent Citation

Deputy Commission of Taxation v De Simone [2012] VSC 644

Cases citing this decision · 5 of 5 shown

Deputy Commission of Taxation v De Simone
[2012] VSC 644 Para 1

…ff is correct in his assertion that the Charter only applies to a Court as a public authority in its administrative capacity. [33](2008) 171 FCR 493, [2008] FCA 1453…
Priestley v Godwin (No 5)
[2009] FCA 594 Para 8

…s ( Priestley v Godwin (No 3) (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley’s allegations of bi…
Priestley v The Honourable David Peter Maxwell Hawker
[2009] FCA 169 Para 7

…ns of bias against her. That refusal was the subject of a judgment the primary judge had delivered at an earlier time ( Priestley v Godwin (No 2) [2008] FCA 1453) and is not before me. MR PRIESTLEY’S DELAY IN SEEKING LEAVE TO APPEAL…
Priestley v Godwin
[2008] HCA 59 Para 23

…e fourth disqualification application[4]. [2] Priestley v Godwin [2008] FCA 1179. [3](2000) 205 CLR 337; [2000] HCA 63. [4] Priestley v Godwin (No 2) [2008] FCA 1453.…
Priestley v Godwin (No 3)
[2008] FCA 1529 Para 28

…The Human Rights Act has no application ( Priestley v Godwin (No 2) [2008] FCA 1453 at [17]-[18]).…

View all 5 citing cases →

Cases cited in this decision · 6 of 6 shown

Priestley v Godwin
[2008] FCA 1179 Para 3

…As set out in Priestley v Godwin [2008] FCA 1179, Mr Priestley made a number of applications for me to disqualify myself from determining the constitutional challenge. I refused to disqualify myself on three of the grounds advanced by Mr Priestley. I reserved my decision in respect of a fourth ground based on the…
Forge v Australian Securities and Investments Commission
[2006] HCA 44 Para 5

…cribed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [66], Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that…
Solomons v District Court of New South Wales
[2002] HCA 47 Para 5

…As was pointed out in Solomons v District Court of New South Wales (2002) 211 CLR 119 at [22], s 79 is couched in mandatory terms. The section is addressed to courts exercising federal jurisdiction and is limited to cases to which the State or Territory laws in question are applicable ( Solomons at [23]).…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd
[2001] HCA 1 Para 6

…pressed in terms applying specifically to State or Territory courts ( Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). The…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 5

…I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [66], Gummow, Hayne and Crennan JJ…
Kruger v the Commonwealth
[1997] HCA 27 Para 6

…vestments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be “pi…

Legislation cited in this decision · 5

Human Rights Act 2004 (ACT)
21(1), 29, 30 4 mentions (from Para 3)
Federal Court of Australia Act 1976 (Cth)
31A 2 mentions (from Para 1)
Judiciary Act 1903 (Cth)
79 2 mentions (from Para 3)
Legislation Act 2001 (ACT)
13, 7 2 mentions
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 1)

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	25 SEPTEMBER 2008
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

JUDGE:	BENNETT J
DATE:	25 SEPTEMBER 2008
PLACE:	SYDNEY (HEARD IN CANBERRA)