Tomson v Minister for Finance and Deregulation

[2015] FCA 1040

FEDERAL COURT OF AUSTRALIA

Tomson v Minister for Finance and Deregulation [2015] FCA 1040

Citation:

Tomson v Minister for Finance and Deregulation [2015] FCA 1040

Parties:

PETER TOMSON and KIM TOMSON v MINISTER FOR FINANCE AND DEREGULATION

File number(s):

NSD 600 of 2015

Judge(s):

GRIFFITHS J

Date of judgment:

17 September 2015

Catchwords:

ADMINISTRATIVE LAW – application for review of a decision of the respondent to refuse the applicant’s application for an act of grace payment under s 33(1) of the Financial Management and Accountability Act 1997 (Cth) – where the respondent declined the application under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) – whether s 7 of the Acts Interpretation Act 1901 (Cth) applies

Legislation:

Acts Interpretation Act 1901 (Cth) s 7

Financial Management and Accountability Act 1997 (Cth) s 33(1)

Public Governance, Performance and Accountability Act 2013 (Cth) s 65(1)

Date of hearing:

17 September 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Applicants:

Ms J D Williams

Solicitor for the Applicants:

LLL The Law Firm

Counsel for the Respondent:

Mr S Free

Solicitor for the Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 600 of 2015

BETWEEN:

PETER TOMSON
First Applicant

KIM TOMSON
Second Applicant

AND:

MINISTER FOR FINANCE AND DEREGULATION
Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	17 SEPTEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The amended originating application be dismissed.

2.The applicants are to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 600 of 2015

BETWEEN:

PETER TOMSON
First Applicant

KIM TOMSON
Second Applicant

AND:

MINISTER FOR FINANCE AND DEREGULATION
Respondent

JUDGE:	GRIFFITHS J
DATE:	17 SEPTEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding relates to a judicial review challenge to a decision of the Parliamentary Secretary to the Minister for Finance.  The decision was to refuse an application for an act of grace payment under s 33(1) of the Financial Management and Accountability Act 1997 (Cth) (FMA Act).  In the amended originating application, two grounds of review were raised.  The first ground was that the decision involved an error of law because the application was made under the FMA Act but was determined by the respondent under a different Act, namely s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act).  The second ground was that the respondent did not have regard to the merits of the particular case and the decision was also unreasonable. 

2. When the matter was called on for hearing this morning, Ms Williams, who appeared for the applicants, also indicated that she wished to raise a further ground relating to the possible application of s 7 of the Acts Interpretation Act 1901 (Cth) (AI Act).  That ground had not been raised in the amended originating application and it was not dealt with in the outline of written submissions which was filed on behalf of the applicants. 

3. During the course of the argument, it emerged that Ms Williams found herself in an unfortunate position because she apparently had not been briefed with a copy of the statement of reasons provided by the Parliamentary Secretary under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

4. I granted a short adjournment to enable Ms Williams to consider that document and the implications that it had for the various grounds of review upon which the applicants relied. On resumption, Ms Williams indicated that she was instructed not to press the grounds of judicial review other than that relating to the contention that was raised for the first time this morning regarding the possible application of s 7 of the AI Act. 

5. As a result of an exchange between the Bench and Ms Williams, Ms Williams asked for a further adjournment to obtain instructions on whether, in fact, her clients did wish the AI Act to be pressed. 

6. There were three prima facie difficulties with the argument. First, the difficulty Ms Williams had in identifying any relevant right or obligation which would attract the operation of s 7. Secondly, Ms Williams correctly conceded that there was no substantive difference between the power under s 33 of the now repealed FMA Act to approve an act of grace payment and the power under the existing PGPA Act under which the challenged decision was made. 

7. Ms Williams acknowledged that there would be difficulty in establishing any material error, even if s 7 of the AI Act applied.  Ms Williams also acknowledged that, in the circumstances here, any relief which might otherwise be available could be withheld in the Court’s discretion. 

8. After hearing further from Ms Williams and also from Mr Free, who appeared for the respondent, it transpired that the applicants no longer pressed any argument in support of their amended originating application.  In those circumstances, the amended originating application should be dismissed and the applicants ordered to pay the respondent’s costs as agreed or assessed.  Orders will be made accordingly.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       23 September 2015