Priestley v Godwin (No 3)

Case [2008] FCA 1529

FEDERAL COURT OF AUSTRALIA

Priestley v Godwin (No 3) [2008] FCA 1529

CONSTITUTIONAL LAW – Judicial power of the Commonwealth – validity of s 31A of the Federal Court of Australia Act 1976 (Cth) – whether an impermissible intrusion into affairs of the Judiciary – s 31A sets standard for summary dismissal – affects nature of the balancing act carried out by the Court in exercise of judicial power – does not direct the Court as to the manner and outcome of the exercise of its jurisdiction – not a bill of attainder – not a “commitment” or “prosecution”

STATUTES – s 31A of the Federal Court of Australia Act 1976 (Cth) – interaction of O 20 r 5 of the Federal Court Rules and s 31A – whether s 31A and O 20 r 5 operate to prevent the Court from receiving evidence in a summary dismissal application – nothing in s 31A or the balance of the Act to suggest that evidence cannot be admitted – other court rules allow or require evidence to be admitted on a summary dismissal application

Australian Capital Territory (Self-Government) Act 1988 (Cth)
Bill of Rights 1688

Due Process of Law Act 1354
Due Process of Law Act 1368

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

Human Rights Act 2004 (ACT)
Interpretation Act 1967 (ACT) (repealed)
Judiciary Act 1903 (Cth)
Magna Carta

Federal Court Rules O 10 r 1, O 19 r 1, O 20 r 5

Bond v Barry [2008] FCAFC 115 cited
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 considered
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 cited
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 considered
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 82 ALJR 454 considered
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 considered
J F Keir v Sparks [2008] FCA 611 cited
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd (2008) 167 FCR 372 considered
K-Generationv Liquor Licensing Court (2007) 99 SASR 58 considered
Lodhi v Regina [2007] NSWCCA 360 applied
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 cited
Nicholas v The Queen (1998) 193 CLR 173 considered

Priestleyv Godwin (No 2) [2008] FCA 1453 considered
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 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
16 OCTOBER 2008
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT…

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AGLC
Priestley v Godwin (No 3) [2008] FCA 1529
Case
[2008] FCA 1529
Decision Date

CaseChat Overview and Summary

In Priestley v Godwin (No 3), the applicant, Priestley, sought to argue that the legislation that precluded evidence from being admitted in a summary dismissal application interfered with the exercise of judicial power. This case was heard in the High Court of Australia, where special leave to appeal was refused. The applicant argued that the admission of evidence is an exclusively judicial power, which involves the power to make findings of fact, to apply the law or to exercise a discretion. The applicant also argued that section 31A of the Federal Court Act directs the Court as to the manner in which it should exercise judicial power in a summary dismissal application.

The court was required to decide whether section 31A of the Federal Court Act and Order 20 rule 5 of the Federal Court Rules operate to preclude evidence from being admitted in a contested summary dismissal application. The court was also required to determine whether this was an invalid interference with the exercise of judicial power. The court found that the applicant’s argument that section 31A of the Federal Court Act and Order 20 rule 5 of the Federal Court Rules operate to preclude evidence from being admitted in a contested summary dismissal application was incorrect. The court found that section 31A does not limit any powers that the Court has apart from this section. The court also found that the replacement of the ‘no reasonable cause of action’ test with the ‘no reasonable prospect of success’ test was valid, as it did not direct the Court as to the outcome of a summary dismissal application. The court found that the admission of evidence is not an exclusively judicial power and that Parliament has the power to legislate to change the laws of evidence and procedure.

The High Court of Australia found that the applicant's argument that section 31A of the Federal Court Act and Order 20 rule 5 of the Federal Court Rules operate to preclude evidence from being admitted in a contested summary dismissal application was incorrect. The court found that section 31A does not limit any powers that the Court has apart from this section. The court also found that the replacement of the ‘no reasonable cause of action’ test with the ‘no reasonable prospect of success’ test was valid, as it did not direct the Court as to the outcome of a summary dismissal application. The court found that the admission of evidence is not an exclusively judicial power and that Parliament has the power to legislate to change the laws of evidence and procedure. Therefore, the High Court of Australia refused special leave to appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [126]:The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers 82 ALJR 454, per Gummow, Hayne, Heydon and Kiefel JJ at [11]).Admission of evidence in an application under s 31A of the Federal Court Act The applicant seeks to argue that, by legislating to preclude evidence from being admitted in a summary dismissal application, the Legislature has interfered with the exercise of judicial power. The argument would seem to be constructed in the following way:·Summary disposition of cases is an exercise of judicial power, which involves, inter alia, the power to admit evidence;·Previously, O 20 r 2 explicitly allowed a Court to hear evidence in a summary dismissal application decided on the ‘no reasonable cause of action’ test;·The ‘no reasonable cause of action’ test has been replaced by the ‘no reasonable prospect of success’ test contained in s 31A of the Federal Court Act;·Section 31A says nothing on the admission of evidence in a summary dismissal application;·Section 31A therefore does not allow evidence to be admitted;·Section 31A is invalid, as it directs the Court as to the manner in which it should exercise judicial power in a summary dismissal application based on the ‘no reasonable prospect of success’ test;·Section 31A interferes with the exercise of judicial power, in that s 31A of the Act and O 20 r 5 of the Rules operate to preclude evidence from being admitted in a contested summary dismissal application. The applicant submits that the admission of evidence is an ‘exclusively judicial power’, along with the powers to make findings of fact, to apply the law or to exercise a discretion. In the applicant’s submission, s 31A of the Federal Court Act interferes with the Court’s power ‘to make findings of fact arising from the pleadings’. This arises because, he says, the ‘no reasonable prospect of success’ test in s 31A, which replaced the ‘no reasonable cause of action’ test in O 20 r 2 prior to the Federal Court Amendment Rules 2007 (No. 1), contains no provision explicitly allowing the Court to hear evidence in a summary dismissal matter, and thus limits the Court’s power to hear evidence in a summary dismissal application. Further, the applicant appears to argue that that the replacement of the ‘no reasonable cause of action’ test itself is impermissible, as constituting an impermissible direction as to the manner in which judicial power should be exercised. Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid (Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69]–[73] per Duggan J). However, that is simply not the case.

Decision

Reasons for decision

BENNETT J
Section 31A of the Federal Court Act provides as follows:31ASummary judgment (1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a)the first party is prosecuting the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a)the first party is defending the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a)hopeless; or (b)bound to fail; for it to have no reasonable prospect of success. (4)This section does not limit any powers that the Court has apart from this section. The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms:Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the ‘no reasonable cause of action’ test, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable.Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court’s powers in dealing with unmeritorious proceedings.Subsection 31A(4) provides that s 31A does not limit any other powers that the court possesses. Prior to the Migration Litigation Reform Act 2005 (Cth), the Court’s summary judgment powers were articulated in O 20 r 2 of the Federal Court Rules. In order ‘to clarify the rules for summary disposal and stay of proceedings in light of s 31A of the Federal Court of Australia Act 1976’, the Court updated O 20 so that the rules governing summary dismissal (now contained in O 20 r 5) complemented s 31A. Prior to the Federal Court Amendment Rules 2007 (No. 1), O 20 r 2 of the Federal Court Rules provided: 2Frivolity(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:(a)no reasonable cause of action is disclosed;(b)the proceeding is frivolous or vexatious; or(c)the proceeding is an abuse of the process of the Court;the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).For clarity, in this judgment all references to O 20 r 2 refer to the rule extracted above, which ceased to have effect on 24 July 2007 following the registration of the Federal Court Amendment Rules 2007 (No. 1).

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

I will consider each of these aspects, although they do, to a degree, overlap.CONSIDERATIONThe “directs the Court as to the outcome” assumption The applicant argues that s 31A directs the Court as to the outcome of a summary dismissal application. The basis of the argument appears to be that Parliament has replaced the ‘no reasonable cause of action’ test in the previous O 20 r 2 of the Federal Court Rules with a ‘no reasonable prospect of success’ test that operates by virtue of s 31A and O 20 r 5 (which refers to s 31A). In the applicant’s submission, this replacement of the standard for summary dismissal is invalid, because it is a direction to the Court as to the manner in which judicial power should be exercised. The heart of the applicant’s argument is the allegation that s 31A impermissibly interferes with the exercise of the judicial power of the Commonwealth and directs the Court as to the outcome of a proceeding. A Commonwealth law that ‘direct[s] the courts as to the manner and outcome of the exercise of their jurisdiction’ will be invalid on the basis that it usurps the judicial power of the Commonwealth (Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 37). In Nicholas v The Queen (1998) 193 CLR 173, Brennan CJ considered the validity of legislation governing practice or procedure. His Honour said (at [23]):The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power.(Footnote omitted.) The applicant accepts that a law prescribing court practice or procedure does not direct the exercise of a judicial power and Parliament has the power to legislate to change the laws of evidence and procedure. However, the applicant argues that s 31A of the Federal Court Act represents the passing by Parliament of a law that directs the exercise of judicial power. In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 82 ALJR 454 at [39], Gummow, Hayne, Heydon and Kiefel JJ said: As a general proposition, it may be accepted that legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the courts as independent and impartial tribunals.(Footnote omitted.)