FEDERAL COURT OF AUSTRALIA
Toomer v Slipper [2001] FCA 981
ADMINISTRATIVE LAW – review of decision made by delegate of Minister for Finance and Administration – decision to deny request for act of grace payment pursuant to s 33 of Financial Management and Accountability Act 1997 (Cth) – alleged breach of natural justice – error of law – improper exercise of power – failure to take into account relevant considerations
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, s 13
Financial Management and Accountability Act 1997 (Cth) s 33
Kioa v West (1985) 159 CLR 550 referred to
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 referred to
Dunstan v Farr [2001] 60 ALD 192 referred to
Wu v Attorney General (1997) 79 FCR 303 at 307 referred to
Jess v Scott (1986) 12 FCR 187 referred to
Preston v Carmody (1993) 44 FCR 1 at 13-14 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-22 referred to
Craig v South Australia (1995) 184 CLR 163 at 179 referred to
Abebe v Commonwealth (1999) 197 CLR 510 at 587 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 33 and 35 –36 referred toWILLIAM FREDERICK TOOMER v PETER NEIL SLIPPER
V503 of 2000
WEINBERG J
26 JULY 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V503 OF 2000
BETWEEN:
WILLIAM FREDERICK TOOMER
APPLICANTAND:
PETER NEIL SLIPPER
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
26 JULY 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V503 OF 2000
BETWEEN:
WILLIAM FREDERICK TOOMER
APPLICANTAND:
PETER NEIL SLIPPER
RESPONDENT
JUDGE:
WEINBERG J
DATE:
26 JULY 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
This is an application for review, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), of two decisions purportedly made by the respondent, the first on 15 February 2000, and the second on 29 June 2000, in his capacity as a delegate of the Minister for Finance and Administration.
The applicant claims to be aggrieved by these decisions by which the respondent determined that he did not satisfy the criteria for an act of grace payment, under s 33 of the Financial Management and Accountability Act 1997 (Cth) (“the FMA Act”), which reads:
“33. Finance Minister may approve act of grace payments
(1) If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability):
(a)
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- Case
- [2001] FCA 981
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Minister exercised his discretion under section 33 of the FMA Act improperly by considering advice from Ms Tighe and the findings of the Marine Pollution Research Advisory Committee (MPRA). Additionally, the court needed to assess whether the Minister failed to take into account other relevant considerations presented by the applicant, such as the differing standards applied by various departments, findings from the Administrative Appeals Tribunal, and other favorable reports and opinions. The applicant argued that these factors should have been considered in deciding his claim for an act of grace payment.
The court found that the Minister did not exercise his powers improperly or fail to take into account relevant considerations. It was established that statutory decision-makers often receive advice from various sources, and it is within their purview to decide which advice to accept. Furthermore, the weight to be given to various considerations is typically determined by the decision-maker, not the court. The court concluded that the applicant had not demonstrated that the Minister was bound to consider the specific matters he raised, as these were not explicitly mandated by the statute. The court held that the Minister's decision was lawful and could not be impugned by the court.
The court ordered that the application for review be dismissed and that the applicant pay the respondent's costs. This decision underscores the principle that the court's role is to ensure the lawful exercise of statutory powers, not to substitute its judgment for that of the decision-maker.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: WEINBERG J
Accordingly, the applicant has not made out this ground of review.Improper exercise of power and failure to take into account relevant considerations The applicant submitted that the respondent had exercised the power vested in him by s 33 of the FMA Act improperly by having relied upon the briefing prepared by Ms Tighe, and also by having had regard to the findings of the MPRA. The submission was that the respondent alone was entrusted with the exercise of the power, and should not have received advice from Ms Tighe, and should not have considered the findings of the MPRA. The respondent submitted that the applicant’s contention was misconceived. The respondent referred to a passage in the judgment of Wilcox J in Preston v Carmody (1993) 44 FCR 1, where his Honour said (at 13-14):“…There are many situations in which statutory decision makers receive advice, including recommendations, from individual officers or committees. In most cases, the very reason these people give advice is their prior involvement in the matter. They have information and opinions that may assist the decision maker. Inevitably, they will have views about the merits. The decision maker may receive conflicting advice from different people. He/She may choose what advice (if any) to accept.” In response to the applicant’s contention that the respondent should not have had regard to the report of the MPRA, it was submitted that there was no basis for that argument. Reference was made to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (per Mason J, as his Honour then was) at 41:“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power…” His Honour set out the principles which govern the failure to take relevant considerations into account as a ground of judicial review (at 39-40):“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive…If the relevant factors…are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act…By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.” The applicant submitted that there were a number of matters relevant to his claim for an act of grace payment, to which he referred in the letter of request and which the respondent had not taken into account. These were:·the fact that the applicant had been working for two different departments, each of which had applied different standards to the conduct of ship inspection;·the fact that the Administrative Appeals Tribunal had made certain findings which were favourable to the applicant concerning his treatment at the hands of the Commonwealth when, on 12 April 1990, it reviewed a decision refusing to amend information contained in two letters written by Dr Mathieson in 1973 . ·the fact that there were other reports or documents favourable to the applicant including an investigation report prepared by a Deputy Public Service Inspector in 1973, an independent psychiatric assessment which controverted earlier medical opinions, the findings of the Coombes Royal Commission, correspondence from Minister Kerin to Prime Minister Hawke dated 8 November 1988 recommending that compensation be paid, legal opinions of eminent senior counsel who had provided advice to the applicant, and the report of the 1995 Senate Select Committee on Unresolved Whistleblower Cases, in which favourable mention of Mr Toomer was made.