FEDERAL COURT OF AUSTRALIA

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

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13

Federal Court of Australia Act 1976 (Cth) ss 23, 31A

Federal Court Rules O 20 r 5, O 52 r 10

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Priestley v Godwin [2008] FCA 1179 cited

Priestley v Godwin (No 2) (2008) 171 FCR 493 cited

Priestley v Godwin (No 3) (2008) 172 FCR 139 cited

Priestley v Godwin (No 4) [2009] FCA 560 cited

Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612 cited

Priestley v Hawker [2009] FCA 561 cited

MICHAEL PRIESTLEY v ANNWYN GODWIN, PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER

ACD 1 OF 2008

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 (VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.         The applications for leave to appeal be dismissed.

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.

REASONS FOR JUDGMENT

1                          Immediately following the making of orders and the publication of reasons in each of the matters in which Mr Priestley is the applicant, Mr Priestley made an application to me for leave to appeal from each of those decisions.  In each case, Mr Priestley said that he “invokes” O 52 r 10 of the Federal Court Rules.  In each case, the respondent(s) opposed the grant of leave.  I note that Mr Priestley objected to the respondents’ position being stated at all regarding his applications for leave to appeal. 

2                          As the applications for leave to appeal were made together and no different matters were raised by Mr Priestley or the respondents in respect of the decisions to which the applications for leave relate, I will deal with them together.

Background

3                          By applications filed on 3 January 2008, Mr Priestley sought orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) that the respondent(s) in each matter prepare and furnish a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for decisions that he characterised and which he said were made.  In each case, the respondent(s) sought orders under s 31A of the Federal Court Act for summary dismissal.  I concluded in each case that there was no decision as alleged by Mr Priestley.  I dismissed each proceeding pursuant to s 31A of the Federal Court Act (Priestley v Godwin (No 4) [2009] FCA 560; Priestley v Hawker [2009] FCA 561).

The applications for leave to appeal

4                          Immediately after I made those orders and handed down the reasons for judgment, Mr Priestley made an application in each case pursuant to O 52 r 10 of the Federal Court Rules.  He made no submissions as to why leave should be granted other than to repeat the fact that he invoked O 52 r 10 as was, he said, his right.  In applying the test set out for the grant of leave to appeal in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, I have concluded that neither decision was attended with sufficient doubt to warrant a grant of leave to appeal.

5                          Further, no substantial injustice would be done if leave to appeal were not granted, even assuming that the decisions were wrong.

6                          To the extent that it is relevant, the respondents say that, in each case, if the matters were to go to hearing, the same evidence would be adduced on their part although perhaps in a different form.  This, however, is not conclusive of the matter. 

7                          No sufficient circumstances have been put to me as to why leave to appeal should be granted in either case and, to the extent that the decisions are interlocutory, I have come to the conclusion that leave should be refused.

8                          After I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted.  He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules (Priestley v Godwin (No 3) (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) (Priestley v Godwin (No 2) (2008) 171 FCR 493).  He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error.  I dealt with Mr Priestley’s allegations of bias in Priestley v Godwin [2008] FCA 1179.  Those allegations were also the subject of an application to the High Court and were described by French CJ as ‘not tenable’ (Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612 at [31]).

9                          In addition, Mr Priestley referred to certain rulings on evidence that I made during the course of the hearing of the notices of motion for summary dismissal.  None of those latter matters have been the subject of any application for leave to appeal.  None of the additional matters raised by Mr Priestley affect my conclusion that leave to appeal should be refused.

10                        In each case, leave to appeal should be refused and the applications for leave to appeal should be dismissed.

Associate:

Dated:         3 June 2009