Priestley v Godwin (No 5) - [2009] FCA 594

FEDERAL COURT OF AUSTRALIA
Priestley v Godwin (No 5) [2009] FCA 594
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13
Federal Court of Australia Act 1976 (Cth) ss 23, 31A
Federal Court Rules O 20 r 5, O 52 r 10
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Priestley v Godwin [2008] FCA 1179 cited
Priestley v Godwin (No 2) (2008) 171 FCR 493 cited
Priestley v Godwin (No 3) (2008) 172 FCR 139 cited
Priestley v Godwin (No 4) [2009] FCA 560 cited
Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612 cited
Priestley v Hawker [2009] FCA 561 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
28 MAY 2009
SYDNEY (VIDEOLINK TO 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:

28 MAY 2009

WHERE MADE:

SYDNEY (VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:
1.The applications for leave to appeal be dismissed.

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

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:

28 MAY 2009

PLACE:

SYDNEY (VIDEOLINK TO CANBERRA)

REASONS FOR JUDGMENT

Immediately following the making of orders and the publication of reasons in each of the matters in which Mr Priestley is the applicant, Mr Priestley made an application to me for leave to appeal from each of those decisions. In each case, Mr Priestley said that he “invokes” O 52 r 10 of the Federal Court Rules. In each case, the respondent(s) opposed the grant of leave. I note that Mr Priestley objected to the respondents’ position being stated at all regarding his applications for leave to appeal.
As the applications for leave to appeal were made together and no different matters were raised by Mr Priestley or the respondents in respect of the decisions to…

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 5)

Details

AGLC: Priestley v Godwin (No 5) [2009] FCA 594
Case: [2009] FCA 594
Decision Date: 28 May 2009

CaseChat Overview and Summary

In the case of Priestley v Godwin (No 5), Mr Priestley filed applications for leave to appeal against decisions that dismissed his claims for orders under sections 23 and 31A of the Federal Court of Australia Act 1976 (Cth) and section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary judge dismissed Mr Priestley's claims on the basis that there was no decision as alleged by him. Mr Priestley subsequently sought leave to appeal against these dismissals.

The primary legal issue before the court was whether sufficient doubt existed in the earlier decisions to warrant a grant of leave to appeal. Additionally, the court had to consider whether denying leave to appeal would result in a substantial injustice and whether any new matters raised by Mr Priestley warranted reconsideration.

The court found that the decisions were not attended with sufficient doubt to warrant a grant of leave to appeal. It was concluded that no substantial injustice would be done if leave to appeal were not granted. The court emphasized that the applications were interlocutory in nature and that no new or compelling circumstances had been presented to justify reopening the applications. The court also reiterated that previous allegations of bias and jurisdictional errors were unfounded. Consequently, the court dismissed the applications for leave to appeal.

Accordingly, the court ordered that the applications for leave to appeal be dismissed.

Orders

Orders of the court

1. The applications for leave to appeal be dismissed.

Note:

Background

Background to the litigation

As the applications for leave to appeal were made together and no different matters were raised by Mr Priestley or the respondents in respect of the decisions to which the applications for leave relate, I will deal with them together.Background By applications filed on 3 January 2008, Mr Priestley sought orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) that the respondent(s) in each matter prepare and furnish a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for decisions that he characterised and which he said were made. In each case, the respondent(s) sought orders under s 31A of the Federal Court Act for summary dismissal. I concluded in each case that there was no decision as alleged by Mr Priestley. I dismissed each proceeding pursuant to s 31A of the Federal Court Act (Priestley v Godwin (No 4) [2009] FCA 560; Priestley v Hawker [2009] FCA 561).The applications for leave to appeal Immediately after I made those orders and handed down the reasons for judgment, Mr Priestley made an application in each case pursuant to O 52 r 10 of the Federal Court Rules. He made no submissions as to why leave should be granted other than to repeat the fact that he invoked O 52 r 10 as was, he said, his right. In applying the test set out for the grant of leave to appeal in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, I have concluded that neither decision was attended with sufficient doubt to warrant a grant of leave to appeal. Further, no substantial injustice would be done if leave to appeal were not granted, even assuming that the decisions were wrong. To the extent that it is relevant, the respondents say that, in each case, if the matters were to go to hearing, the same evidence would be adduced on their part although perhaps in a different form. This, however, is not conclusive of the matter. No sufficient circumstances have been put to me as to why leave to appeal should be granted in either case and, to the extent that the decisions are interlocutory, I have come to the conclusion that leave should be refused. After I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules (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 bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ‘not tenable’ (Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612 at [31]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 1 OF 2008

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 OF 2008

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

JUDGE:	BENNETT J
DATE:	28 MAY 2009
PLACE:	SYDNEY (VIDEOLINK TO CANBERRA)