Priestley v Hawker

Case •

[2009] FCA 561

•

28 May 2009

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 Presiding Officers’), by notice of motion, seek an order that the application be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) on the basis that the application has no reasonable prospect of success.

  3. 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

  4. 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’).

  5. 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)].

  6. The parties accept that clause 2.3.3 of the Determination is applicable to the present proceedings. Neither party contended that it was not.

  7. 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.

  8. 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)

  9. 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’).

  10. Section 40(1) of the Parliamentary Service Act relevantly provides:

    The Commissioner’s functions include the following functions:

    (a)to give advice to the Presiding Officers on the management policies and practices of the Parliamentary Service;

    (b)if requested by the Presiding Officers, to inquire into and report on matters relating to the Parliamentary Service that are specified in the request.

  11. Mr Priestley’s request for reasons for the claimed decision was sent to the Presiding Officers on 19 September 2007. His assertion seemed to be that, while the Presiding Officers referred the matter for advice and/or inquiry and a report, they did not refer the matter to the Parliamentary Service Commissioner in accordance with s 40(1)(b) of the Parliamentary Service Act, as required by subclause (2) of clause 2.3.3 of the Determination. Mr Priestley then seemed to assert that this constituted the claimed decision and sought a statement of reasons for that decision.

  12. The basis for Mr Priestley’s assertion appears to be that the letter from the Presiding Officers to the Parliamentary Service Commissioner referred the matter for ‘advice and/or an inquiry and a report’ but did not make any reference to s 40(1)(b) of the Parliamentary Service Act. In his written submissions, Mr Priestley submits that the Parliamentary Service Commissioner has no power to inquire into and report on matters relating to the Parliamentary Service unless a request is made. He says that the letter from the Presiding Officers to the Parliamentary Service Commissioner dated 10 May 2007 was a letter of referral only and not a letter of request. He contends that once the Presiding Officers formed the view that the matters referred to in his letter of 12 April 2007 required further investigation, they were obliged to make a request to the Parliamentary Service Commissioner in accordance with s 40(1)(b) of the Parliamentary Service Act. Parliament did not, he submits, give the Parliamentary Service Commissioner the power to decide whether or not to inquire into and report on matters relating to the Parliamentary Service.

  13. 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?

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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).

  19. 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. 

  20. 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.

  21. In summary, there is no evidence of the claimed decision. Mr Priestley has no entitlement to reasons for a decision that was not made. Contrary to Mr Priestley’s submissions, the Presiding Officers decided that the matters raised in Mr Priestley’s letter warranted further investigation and these matters were referred to the Parliamentary Service Commissioner for advice and/or inquiry and a report. The prescribed procedures were followed. The Parliamentary Service Commissioner’s function was then, in accordance with ss 40(1)(a) and 40(1)(b) of the Parliamentary Service Act, to give advice and/or to inquire and report on the matters specified in the letter of referral.

    ADDITIONAL MATTERS

  22. As noted above, the Presiding Officers submit that, even if there were a decision as alleged by Mr Priestley, he is not a person aggrieved by that decision and s 23 of the Federal Court Act is not a source of jurisdiction for the relief sought.

  23. It follows from my conclusions above that it is unnecessary to consider whether or not Mr Priestley is a person aggrieved or whether or not s 23 of the Federal Court Act is a source of additional jurisdiction. In any event, I considered these grounds in Priestley v Godwin (No 4) [2009] FCA 560 which was heard concurrently with this application and the same conclusions apply. Section 23 of the Federal Court Act is not a source of additional jurisdiction (Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1981) 148 CLR 150 at 161). Mr Priestley may not have established that he is a person aggrieved but that does not fall to be determined on this application under s 31A of the Federal Court Act. I am prepared to assume for the purposes of this notice of motion that, had the claimed decision been made, Mr Priestley would have been a person aggrieved.

  24. Mr Priestley made submissions concerning orders made at an earlier stage of these proceedings by a judge of the Court.  No appeal or application for leave to appeal was brought against those orders in this Court.  However, it appears that those orders were the subject of consideration by the High Court in Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612. In that case, French CJ said that Mr Priestley’s allegations regarding those previous orders were ‘baseless’.  I indicated to Mr Priestley that I would not deal with his submissions regarding those previous orders in these proceedings and I do not do so.

  25. In his application, Mr Priestley also seeks orders that he be provided with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the claimed decision dated 10 May 2007, as well as disclosure of the evidence or other material on which the findings on material questions of fact were based.  To the extent that this represents an additional order to the order sought to provide reasons for the claimed decision, it is also predicated upon there having been a decision as Mr Priestley characterised it made on that date.  The relevant facts as to whether or not the claimed decision was made and what decision was made are evident from the documentary material in evidence.  There was no claimed decision.  He is not entitled to these orders.

    CONCLUSION

  26. The decision for which Mr Priestley seeks reasons was not made. Mr Priestley’s application has no reasonable prospect of success. It follows that the proceedings should be dismissed pursuant to s 31A of the Federal Court Act, with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        28 May 2009

The Applicant appeared in person.
Counsel for the Respondents: Mr D O’Donovan
Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 28 April 2009
Date of Judgment: 28 May 2009
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Cases Citing This Decision

1

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