Priestley v Godwin (No 4) - [2009] FCA 560

FEDERAL COURT OF AUSTRALIA
Priestley v Godwin (No 4) [2009] FCA 560
ADMINISTRATIVE LAW – application for order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that the respondent provide a statement of reasons for decision pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) – respondent seeks summary dismissal pursuant to s 31A of the Federal Court Act – whether alleged decision was made – whether s 23 of the Federal Court Act is a source of jurisdiction pursuant to which the order sought by the applicant can be made – whether the applicant is a person aggrieved – whether s 17 of the ADJR Act meant that notice given by previous officer holder not valid for the purposes of s 13(3) of the ADJR Act
Acts Interpretation Act 1901 (Cth) ss 15AA, 33
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 13, 17
Federal Court of Australia Act 1976 (Cth) ss 23, 31A
Parliamentary Service Act 1999 (Cth) ss 13, 48
Parliamentary Service Determination 2003/2 (Cth) clauses 2.4.3, 8.2
Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 cited
Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 cited
Griffith University v Tang (2005) 221 CLR 99 cited
Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612 referred to
Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1981) 148 CLR 150 cited
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 cited
MICHAEL PRIESTLEY v ANNWYN GODWIN, PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
ACD 1 of 2008
BENNETT J
28 MAY 2009
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

JUDGE:

BENNETT J

DATE OF ORDER:

28 MAY 2009

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:
1.The application filed on 3 January 2008 be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).
2.The applicant pay the respondent’s costs of the proceedings, including the costs of the notice of motion for summary dismissal.

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

The text of entered orders can be located using eSearch on the Court’s website.

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

JUDGE:

BENNETT J

DATE:

28 MAY 2009

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

In his application, Mr Priestley seeks the following:
… an Order pursuant to section 23 of the Federal Court of Australia Act 1976 that the Respondent prepare and furnish a statement of reasons pursuant to section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 for decisions of the Acting Parliamentary…

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 4)

Details

AGLC: Priestley v Godwin (No 4) [2009] FCA 560
Case: [2009] FCA 560
Decision Date: 28 May 2009

CaseChat Overview and Summary

In the case of Priestley v Godwin (No 4), the primary issue was whether there was a new decision made by Mr Budak on 17 October 2007, subsequent to the initial decision dated 18 September 2007, which Mr Priestley argued required reasons. The dispute involved the interpretation of decisions made under an enactment and whether those decisions affected legal rights or obligations. The court had to determine whether the decisions made by Mr Budak constituted separate decisions that required distinct reasons or if they were part of a continuous decision-making process.

The court examined Mr Budak's reasons for the decision made on 18 September 2007, which were provided on 17 October 2007. It was established that Mr Budak reviewed the allegations against Ms Briggs and found them insufficient for further investigation. Mr Budak also concluded that there was no obligation to investigate the former Merit Protection Commissioner, Mr Lamond, based on the allegations presented by Mr Priestley. The court found that any decision not to investigate Mr Lamond was implicitly included in the earlier decision of 18 September 2007. Therefore, the court held that the decision-making process was continuous and did not require separate reasons for the later date.

The court concluded that there was no new decision made on 17 October 2007 that required distinct reasons. The reasons provided for the decision on 18 September 2007 adequately explained the decision-making process, including the implicit decision not to investigate Mr Lamond. Consequently, the application for reasons was dismissed.

The court ordered that the application filed on 3 January 2008 be dismissed pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth). Additionally, the applicant was ordered to pay the respondent’s costs of the proceedings, including the costs of the notice of motion for summary dismissal.

Orders

Orders of the court

1. The application filed on 3 January 2008 be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

2. The applicant pay the respondent’s costs of the proceedings, including the costs of the notice of motion for summary dismissal.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J

Ms Godwin submits that Mr Priestley’s assertion that Mr Budak reconsidered the decisions that he made on 18 September 2007 and then remade them on 17 October 2007 is a matter of pure speculation on the part of Mr Priestley and that there is no evidence or inference available to support a contrary contention.WAS THERE A NEW DECISION? Mr Priestley says that he is entitled to reasons for decisions which he says were made on 17 October 2007. Before one looks to see whether there is a decision under an enactment, which must be expressly or impliedly required or authorised by the enactment and must confer, alter, or otherwise affect legal rights or obligations (Griffith University v Tang (2005) 221 CLR 99 at [89]), a threshold question must be considered: was there a decision made on that date? An examination of Mr Budak’s reasons of 17 October 2007 for his decision of 18 September 2007 discloses that he considered the substance of the allegations against the Parliamentary Service Commissioner, Ms Briggs. Mr Budak explained in his reasons that he formed the view that Mr Priestley’s allegations against Ms Briggs were not sufficiently persuasive to warrant further investigation. Specifically, Mr Budak said that the letter and attachments that were said by Mr Priestley to have been divulged by Ms Briggs to the former Merit Protection Commissioner, Mr Lamond, were in fact received by Ms Briggs after Mr Lamond’s departure for a position in another Department. Accordingly, the allegation that the documents had been passed by Ms Briggs to Mr Lamond for purposes connected with Mr Lamond’s then current position as Parliamentary Service Merit Protection Commissioner was unfounded, as was the allegation that the receipt of the letter and attachments by Mr Lamond had prompted his resignation. He had already left the position. Mr Priestley’s letter of 27 August 2007 also contained allegations concerning breaches of the Code of Conduct by Mr Lamond himself. Mr Priestley appears to submit that Mr Budak was obliged to make a decision pursuant to clause 2.4.3 of the Determination to refer the allegations concerning Mr Lamond to the relevant officer holder. Clause 2.4.3(2) provides that a person who receives a whistleblower’s report and is not the office holder mentioned in relation to the report in clause 2.4.3(1) must refer the report to the office holder. Clause 2.4.3(3) provides that a person who receives a whistleblower’s report and considers on reasonable grounds that the report would be more appropriately dealt with by another office holder may refer the report to that office holder. Mr Budak explained in his reasons that he did not consider that any request for an investigation of the former Merit Protection Commissioner’s conduct had been made. For this reason, Mr Budak did not take any action in respect of Mr Priestley’s allegations regarding breaches of the Code of Conduct by Mr Lamond. To the extent that Mr Budak made a decision not to consider any of the allegations against Mr Lamond further, that decision was implicit in his letter of 18 September 2007, for which reasons were given on 17 October 2007.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Full text does not contain this section.

JUDGE:	BENNETT J
DATE OF ORDER:	28 MAY 2009
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

AND:	ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER Respondent
JUDGE:	BENNETT J
DATE:	28 MAY 2009
PLACE:	SYDNEY (HEARD IN CANBERRA)