Priestley v The Honourable David Peter Maxwell Hawker - [2009] FCA 169

FEDERAL COURT OF AUSTRALIA
Priestley v The Honourable David Peter Maxwell Hawker
[2009] FCA 169
MICHAEL PRIESTLEY v THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES, SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE STATE and ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
ACD 2 of 2009
RARES J
23 FEBRUARY 2009
SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 2 of 2009

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 STATE
Second Respondent

ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Third Respondent

JUDGE:

RARES J

DATE OF ORDER:

23 FEBRUARY 2009

WHERE MADE:

SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
2.The application is dismissed.
3.The applicant pay the respondents’ costs of the motion.

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 2009

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 STATE
Second Respondent

ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Third Respondent

JUDGE:

RARES J

DATE:

23 FEBRUARY 2009

PLACE:

SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

This is an application for an extension of time in which to seek leave to appeal and if that were granted, seeking leave to appeal, from a judgment of a judge of the Court given on 16 October 2008: Priestley v Godwin (No 3) [2008] FCA 1529. The primary judge made a declaration that neither s 31A of the Federal Court of Australia Act 1976 (Cth), nor O 20 r 5 of the Federal Court Rules is invalid and ordered that the applicant, Michael Priestley, pay the respondents’ costs. Originally there were two separate motions but on 11 February 2009 I ordered in chambers, by consent, that both sets of proceedings seeking relief in respect of the primary judge’s orders be consolidated.
THE ADJOURNMENT APPLICATION
When the matter came on before me today Mr Priestley applied for an adjournment by reason of what he claimed was the late service of written submissions by the respondents. He wished to be able to deal with, first, the circumstances in which the primary judge pronounced her orders and delivered her reasons and, secondly, a matter that was said to arise out of the submissions. I allowed Mr Priestley to tender communications passing between the primary judge’s associate and the parties. I rejected, as irrelevant, the tender of any material by Mr Priestley dealing with the second aspect namely, what he anticipated he might do in consequence of certain statements…

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.

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Details

Case: [2009] FCA 169
Decision Date: 23 February 2009

CaseChat Overview and Summary

The case of Priestley v The Honourable David Peter Maxwell Hawker involved Mr Priestley who sought an adjournment in his application, claiming that he had been served with written submissions by the respondents late, and therefore, he was unable to adequately respond. The matter came before the court with Mr Priestley requesting to tender communications between the primary judge’s associate and the parties, which the court allowed. However, the court rejected Mr Priestley’s attempt to tender material that dealt with his anticipated actions in response to the respondents' submissions, deeming it irrelevant.

The legal issues before the court centred on the validity of sections 31A and O 20 r 5 of the Federal Court of Australia Act 1976. Mr Priestley had previously challenged these sections in an earlier proceeding in Canberra, which was dismissed by the High Court. In this case, Mr Priestley argued that the primary judge's decision to deliver judgment in Sydney, without requiring his presence, deprived him of the opportunity to apply orally for leave to appeal. He also sought to challenge the judge's decision on the validity of sections 31A and O 20 r 5, and questioned whether the judge was properly authorised to deliver judgment in Sydney.

The court considered the matter and concluded that the primary judge was indeed authorised to deliver judgment in Sydney under section 12 of the Federal Court of Australia Act 1976. The court held that Mr Priestley's understanding of the circumstances leading to his non-attendance did not affect the validity of the judge's decision. Furthermore, the court noted that Mr Priestley had ample opportunity to challenge the primary judge's decisions in the appropriate forums and that his claims were without merit. Consequently, the court dismissed Mr Priestley's application and ordered him to pay the respondents' costs of the motion.

Orders

Orders of the court

1. The applicant’s application for an adjournment is dismissed.

2. The application is dismissed.

3. The applicant pay the respondents’ costs of the motion.

Note:

Background

Background to the litigation

When the matter came on before me today Mr Priestley applied for an adjournment by reason of what he claimed was the late service of written submissions by the respondents. He wished to be able to deal with, first, the circumstances in which the primary judge pronounced her orders and delivered her reasons and, secondly, a matter that was said to arise out of the submissions. I allowed Mr Priestley to tender communications passing between the primary judge’s associate and the parties. I rejected, as irrelevant, the tender of any material by Mr Priestley dealing with the second aspect namely, what he anticipated he might do in consequence of certain statements in the respondents’ submissions.BACKGROUND Mr Priestley’s motions that s 31A and O 20 r 5 were invalid had been heard in Canberra where the parties were located. On 14 October 2008 her Honour’s associate advised the parties via emails that her Honour would be delivering judgment in Sydney on 16 October originally at 10.15 am, and later at 10.00 am. Coincidentally, another challenge by Mr Priestley was listed before the High Court on 16 October in which he sought relief with respect to, among other things, her Honour participating in the hearing of his applications. After some to'ing and fro'ing in the emails, her Honour’s associate informed the parties that her Honour did not require any of them to be present for the handing down of the judgment but offered, if either wished to be present, to arrange a video link to Canberra. I infer, although there is no direct evidence, that Mr Priestley did not require a video link to be established and did not attend to hear her Honour pronounce judgment. Under s 12 of the Federal Court of Australia Act 1976 the Court may sit, from time to time, as required at the places at which registries of the Court are established, but may also sit at any place in Australia or in a Territory. Accordingly, her Honour was authorised to sit and deliver judgment in Sydney, as she did. Mr Priestley claimed that in consequence of the correspondence between the parties and her Honour’s associate he understood that he did not need to attend at the time of her Honour pronouncing judgment, and, so he claimed, he did not have the opportunity, pursuant to O 52 r 10(1), to apply orally to her Honour for leave to appeal from that decision. One of the orders which Mr Priestley had sought in the High Court was relief in the nature of a writ of prohibition to prevent her Honour from sitting in relation to his matter at all. After her Honour made the orders and gave her reasons, Mr Priestley amended his application in the High Court to seek relief in the nature of a writ of certiorari in respect of those orders. The proceedings came before French CJ in December and his Honour gave judgment on 17 December 2008 dismissing them: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612; [2008] HCA 59. The Chief Justice set out the procedural history and asserted grounds for the relief which Mr Priestley claimed. Among other things he had sought prohibition against the primary judge because she had been one of the judges of this Court who made O 20 r 5, the validity of which he challenged and her Honour had upheld. He also sought to challenge her Honour’s decision in respect of s 31A.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RARES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 of 2009

JUDGE:	RARES J
DATE OF ORDER:	23 FEBRUARY 2009
WHERE MADE:	SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

JUDGE:	RARES J
DATE:	23 FEBRUARY 2009
PLACE:	SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)