Priestley v Hawker

Case [2009] FCA 561

FEDERAL COURT OF AUSTRALIA

Priestley v Hawker [2009] FCA 561

ADMINISTRATIVE LAW – application for order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that the respondents provide a statement of reasons for decision pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – respondents seek 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

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13
Federal Court of Australia Act 1976 (Cth) ss 23, 31A
Parliamentary Service Act 1999 (Cth) s 40

Parliamentary Service Determination 2003/2 (Cth) cl 2.3.3

Gurney v Grimmer (1932) 38 Com Cas 7 cited
Looke v Parbury, Henty & Co Pty Ltd [1950] VLR 94 cited
Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612 cited
Priestley v Godwin (No 4) [2009] FCA 560 referred to
Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1981) 148 CLR 150 cited

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 (HEARD IN CANBERRA)


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 (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 respondents’ 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 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 (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. The applicant, Mr Priestley, seeks the following order:

    [P]ursuant to section 23 of the Federal Court of Australia Act 1976 that the Respondents prepare and furnish a statement of reasons pursuant to section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 for the decision of the Presiding Officers of the Parliament of Australia dated 10 May 2007.

  2. The respondents (‘the…

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Details
AGLC
Priestley v Hawker [2009] FCA 561
Case
[2009] FCA 561
Decision Date

CaseChat Overview and Summary

In Priestley v Hawker, the applicant sought reasons for a decision not to refer certain allegations to the Parliamentary Service Commissioner for investigation. The Presiding Officers of the Parliament of Australia argued that the applicant was not aggrieved by any decision, and therefore, no reasons were required under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Presiding Officers also argued that there was no decision to which the Act applied, and that section 23 of the Federal Court Act 1976 (Cth) did not provide the requisite jurisdiction for the relief sought.

The court examined whether the Presiding Officers made a decision not to refer the allegations to the Parliamentary Service Commissioner, as required by the Parliamentary Service Determination 2003/2 (Cth). The Presiding Officers had referred the allegations to the Commissioner for advice and/or inquiry and a report. The court found that the Presiding Officers made a decision to refer the allegations, which was favourable to the applicant. The court concluded that there was no evidence to suggest that the Presiding Officers made a decision not to refer the matter to the Commissioner in accordance with the Parliamentary Service Act, as required by the Determination.

The court dismissed the application for reasons, finding that the applicant was not aggrieved by any decision. The Presiding Officers' decision to refer the allegations to the Commissioner for advice and/or inquiry and a report was favourable to the applicant, and therefore, there was no decision to which the ADJR Act applied. The court also found that section 23 of the Federal Court Act did not provide the requisite jurisdiction for the relief sought. The applicant was ordered to pay the respondents' costs of the proceedings.

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 respondents’ costs of the proceedings, including the costs of the notice of motion for summary dismissal.

Note:

Background

Background to the litigation

The Presiding Officers say that s 23 of the Federal Court Act is not a source of jurisdiction pursuant to which the Court can grant the relief sought. Further, or in the alternative, they say that there is no obligation under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) to provide a statement of reasons, as there is no decision to which the ADJR Act applies. Further, they submit that even if there were such a decision, Mr Priestley is not a person aggrieved by it.BACKGROUND On 12 April 2007 Mr Priestley wrote to each of the then Presiding Officers concerning allegations in respect of the Parliamentary Service Merit Protection Commissioner, the Secretary of the Department of Parliamentary Services, the Parliamentary Librarian and certain other persons. He says that he referred the allegations to the Presiding Officers following advice from the Parliamentary Service Merit Protection Commissioner and in accordance with clause 2.3.3 of the Parliamentary Service Determination 2003/2 (Cth) (‘the Determination’). Clause 2.3.3 of the Determination relevantly provides that:(1)Where an allegation, other than a whistleblower's report, is made about conduct by a Secretary or the Parliamentary Librarian amounting to a breach of the [Parliamentary Service] Code of Conduct, the allegation must be referred to the Presiding Officers.(2)If the Presiding Officers consider that the matter may warrant investigation, they will refer the matter to the Commissioner(a) for advice and/or(b)for inquiry and a report in accordance with paragraph 40(1)(b) of the [Parliamentary Service Act 1999 (Cth)]. The parties accept that clause 2.3.3 of the Determination is applicable to the present proceedings. Neither party contended that it was not. The reply to Mr Priestley, as signed by each of the Presiding Officers and dated 10 May 2007, referred to Mr Priestley’s letter of 12 April 2007 making allegations about the conduct of the Secretary of the Department of Parliamentary Services under clause 2.3.3 of the Determination. The letter continued:In accordance with [subclause] (2) of [clause] 2.3.3, we have referred your letter and the accompanying material to the Parliamentary Service Commissioner. You will be contacted in due course after the Commissioner has considered the matter. On 10 May 2007 the Presiding Officers sent a letter to the Parliamentary Service Commissioner. They referred to the letter and accompanying material dated 12 April 2007 from Mr Priestley making allegations about the conduct of the Secretary of the Department of Parliamentary Services under clause 2.3.3 of the Determination and continued:In accordance with [subclause] (2) of [clause] 2.3.3, we refer this material to you for advice and/or inquiry and a report.(emphasis added) The decision in respect of which reasons are sought by Mr Priestley from the Presiding Officers is identified by Mr Priestley as a decision ‘not to refer the matter for advice and/or inquiry and a report’ in accordance with s 40(1)(b) of the Parliamentary Service Act 1999 (Cth) (‘the Parliamentary Service Act’), as required by subclause (2) of clause 2.3.3 of the Determination (‘the claimed decision’).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J
The Presiding Officers wrote to Mr Priestley on 24 October 2007 advising that there was no relevant decision capable of review under the ADJR Act and refused the request for reasons.DID THE PRESIDING OFFICERS MAKE THE CLAIMED DECISION? The Presiding Officers contend that no decision of the kind described by Mr Priestley was ever made. They point out that the decision made on 10 May 2007 was that the matters raised in Mr Priestley’s letter of 12 April 2007 warranted further investigation, as a result of which the matters were referred to the Parliamentary Service Commissioner and that this decision was favourable to Mr Priestley. No statement of reasons is sought or has been sought in relation to that decision. Counsel for the Presiding Officers submitted during oral argument that Mr Priestley appears to be suggesting that the Presiding Officers deliberately worded their letter to the Parliamentary Service Commissioner so that it did not contain a reference to s 40(1)(b) of the Parliamentary Service Act, so as to deprive the Parliamentary Service Commissioner of the power to deal with the matters the subject of the referral. To the extent that Mr Priestley makes this contention, there is no evidence to support it. The Presiding Officers decided that the matters referred to in Mr Priestley’s letter of 12 April 2007 may warrant further investigation and, accordingly, they referred the matters to the Parliamentary Service Commissioner in accordance with clause 2.3.3(2) of the Determination. There is no evidence to suggest that the Presiding Officers made a decision not to include a reference to s 40(1)(b) of the Parliamentary Service Act in the letter of referral so as to deprive the Parliamentary Service Commissioner of her powers under that Act. More generally, there is no evidence to suggest that the Presiding Officers made a decision not to refer the matter to the Parliamentary Service Commissioner in accordance with s 40(1)(b) of the Parliamentary Service Act, as required by clause 2.3.3(2) of the Determination. Following a decision by the Presiding Officers that a matter may warrant further investigation, the Presiding Officers must then decide the terms of the referral within the confines of the Determination. The Determination allows for a referral:(a)for advice;(b)for inquiry and a report;(c)for advice and inquiry and a report; or(d)for advice and/or inquiry and a report. Clause 2.3.3(2) of the Determination, which uses the term ‘and/or’ without further limitation, leaves open the possibility in option (d) above. A referral in terms of option (d) is not void for uncertainty (Looke v Parbury, Henty & Co Pty Ltd [1950] VLR 94) but authorises the Parliamentary Service Commissioner to decide which of the above alternatives (ie. (a), (b) or (c)) to adopt (Gurney v Grimmer (1932) 38 Com Cas 7). The option referred to in (d) above was the course adopted by the Presiding Officers in respect of Mr Priestley’s letter of 12 April 2007. Mr Priestley says that the letter from the Presiding Officers to the Parliamentary Service Commissioner was a letter of referral only, and not a request under s 40(1)(b) of the Parliamentary Service Act. The term “refer” is defined in the Macquarie Dictionary (Revised 3rd Edition) to mean ‘to hand over or submit for information, consideration, decision, etc’. A “request” is ‘the act of asking for something to be given, or done, especially as a favour or courtesy; solicitation or petition’ (Macquarie Dictionary, Revised 3rd Edition). The referral by the Presiding Officers to the Parliamentary Service Commissioner, which was a referral for ‘advice and/or inquiry and a report’ clearly encompassed the concept of a “request” as required by s 40(1)(b) of the Parliamentary Service Act.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

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