FEDERAL COURT OF AUSTRALIA

Ghanem v Australian Research Council [2014] FCA 473

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a) and (c) of the Federal Court Rules 2011, the whole of this proceeding be summarily dismissed.

2.    The applicant pay the respondents’ costs of and incidental to this proceeding as taxed or agreed.

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

REASONS FOR JUDGMENT

1    In this proceeding, the applicant, Dr Ghanem, seeks judicial review of two decisions, one of which was made by the Minister for Education (the Minister) and one of which was made by the Australian Research Council (ARC). The ARC is the first respondent and the Minister is the second respondent. The decisions which Dr Ghanem challenges are:

(a)    A decision by the ARC to make a recommendation to the Minister not to award a 2013 ARC Future Fellowship to Dr Ghanem; and

(b)    A decision by the Minister made on 8 November 2013 not to award a 2013 Future Fellowship to Dr Ghanem.

2    Dr Ghanem mentions a third matter at par 3 on p 2 of his Amended Originating Application which he also challenges as a “decision”. That matter is more appropriately characterised as a ground or reason for setting aside the Minister’s decision rather than as a decision and I will treat it accordingly.

3    The grounds of judicial review specified by Dr Ghanem in his Amended Originating Application filed on 14 February 2014 are:

1.    That the procedures that were required by the law to be observed in connection with the making of the decisions were not observed;

2.    That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the Respondents failed to take a relevant consideration into account in the exercise to the power;

3.    That the decision involved an error of the law, whether or not the error appears on the record of the decision;

4.    That there was no evidence or other material to justify the making of the decision;

5.    That the decision was otherwise contrary to the law;

6.    That the decision was made in bad faith [rule 31.01(2)]; the Applicant did withdraw his previous Federal court case ACD02/2012 in good faith and on the basis that his application for Future Fellowship round 2013 will be treated fairly but the ARC has deliberately dumped the score down for him not to get the fellowship.

4    The relief which Dr Ghanem seeks is expressed in the following terms:

Orders sought

1.    To put aside the decision made by the Minister not to Award the applicant a Future Fellowship.

2.    A declaration that the rights of the Applicant were adversely affected by the actions of the Respondents;

3.    An order requiring the Respondents to provide justification/reasons why the score of the Applicant’s application for future fellowship was dumped down. These will assist to the Applicant to understand how the decision was made and how to improve his applications in future rounds.

4.    To put aside any assessment given without justification/reasons and reassess the proposal based on merits or reconsider the proposal in the current 2014 (last round).

4.    Costs

5.    Any other order that the Court considers appropriate.

5    In substance, Dr Ghanem asks the Court to set aside both of the decisions which he challenges and to compel the CEO of the ARC and the Minister to reconsider his Future Fellowship funding proposal in the final round of 2014. His case is brought under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). He claims to be a “person aggrieved” within the meaning of that expression in s 5(1).

6    The essence of Dr Ghanem’s complaint is found on pp 2 to 6 of his Amended Originating Application under the heading “Details of Claim”. In that section of his Application, Dr Ghanem says:

(a)    On two earlier occasions (2009 and 2010), he had applied for an ARC Future Fellowship. On the first occasion, he did so under the auspices of the University of Tasmania (UTAS). On the second occasion, he was associated with the University of Western Australia (UWA). The ARC did not recommend Dr Ghanem for a fellowship in either 2009 or 2010 and the Minister decided not to award a fellowship to him in either of those years. In 2012, Dr Ghanem challenged those decisions by making an application for judicial review in this Court. That case was settled upon the basis that Dr Ghanem would be free to apply for a fellowship in 2013. Dr Ghanem now believes that he was ineligible to apply for such a fellowship in 2013 and should not have been led to believe that he was eligible. Dr Ghanem contends that the Minister had no power to decline to award a fellowship to him in 2013 because his application was invalid, it having been made by someone who was not eligible to receive a fellowship in 2013.

(b)    Two of the assessors of Dr Ghanem’s 2013 fellowship application deliberately and improperly “dumped down” the score given by them to his application thereby putting him out of contention for the award of a fellowship.

(c)    The recommendation made by the CEO of the ARC to the Minister in respect of Dr Ghanem was not in proper form because it did not include a Statement of Reasons as required by s 52(3)(d) of the Australian Research Council Act 2001 (Cth) (ARC Act) and the Commonwealth Grant Guidelines.

7    By an Interlocutory Application filed on 4 March 2014, the ARC and the Minister applied for an order summarily dismissing the whole of Dr Ghanem’s Application and an order for costs. The respondents rely upon s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01 of the Federal Court Rules 2011 (FCR).

8    By these Reasons for Judgment, I determine the respondents’ summary judgment application.

The Relevant Facts

9    The Minister and the ARC read and relied upon two affidavits affirmed by Letitia Margaret Abela. Ms Abela is the In-House Legal Counsel at the ARC. She was and is familiar with the relevant processes undertaken by the ARC in respect of Future Fellowships. The two affidavits affirmed by Ms Abela were affirmed on 3 March 2014 and on 26 March 2014 respectively. The respondents also tendered as Exhibit A an ARC document in which the scores given to Dr Ghanem’s fellowship application by each of the persons who assessed it are set out. That document also includes brief commentary on the application given by each assessor. In support of his case and in answer to the respondents’ arguments, Dr Ghanem tendered and relied upon a number of documents which were annexed to an affidavit affirmed by him on 13 March 2014 and filed by him on 17 March 2014. He did not rely upon any other affidavits which he had filed in the proceeding.

10    The evidence before me established the following facts.

11    On 20 February 2013, the University of Canberra (UCAN) applied to the ARC for consideration for funding under the Future Fellowship scheme for 2013. UCAN’s application included Future Fellowship Proposal FT 130100026 titled “Integrated Microsystems for Chiral Doping Drug Testing in Sports” in which Dr Ghanem was listed as the Chief Investigator and Future Fellow Candidate.

12    On 9 October 2013, the Chief Executive Officer of the ARC, Professor Aidan Byrne, made recommendations to the Minister regarding the Future Fellowship scheme for funding commencing in 2013.

13    Professor Byrne’s recommendations included a recommendation from the ARC College of Experts to the effect that FT 130100026 was uncompetitive in the 2013 funding round. That recommendation was itself based upon recommendations coming forward from an ARC Selection Meeting held in the period 19–23 August 2013.

14    On 15 October 2013, Professor Byrne made a submission to the Minister in the form of a Ministerial Briefing Note for Decision (BR13-003522) seeking approval for those Future Fellowship proposals which he was supporting. His submission also included his recommendations in respect of those proposals which he did not support.

15    Included amongst Professor Byrne’s recommendations was a recommendation that Funding Proposal FT 130100026 not be funded.

16    On 15 October 2013, the Minister approved all of the recommendations made by Professor Byrne contained in Briefing Note BR13-003522.

17    On 8 November 2013, the ARC notified UCAN of the outcome of the proposals which that University had submitted for funding in 2013 under the Future Fellowships scheme. Included within that notification was notification that Proposal FT 130100026 had been unsuccessful in the 2013 funding round.

18    The Minister announced publicly the outcomes of the 2013 Future Fellowships funding round on the same day viz 8 November 2013.

19    On 5 December 2013, Dr Ghanem requested a Statement of Reasons from the ARC pursuant to s 13(1) of the ADJR Act setting out the reasons why funding application FT 130100026 had not been successful in the 2013 funding round.

20    Professor Byrne provided a Statement of Reasons pursuant to that request on 7 January 2014. After setting out the framework pursuant to which the relevant decision was made, Professor Byrne said:

4.    Evidence on which the findings were based

The ARC CEO’s decision to recommend that FT130100026 not be approved for funding

Pursuant to clause 11.1.3 of the FT13 Funding Rules, Proposal FT130100026 was assessed by four external assessors and two College of Experts members. In accordance with clause 11.2, the applicant was provided with all external assessors’ comments on 22 May 2013, and provided a rejoinder by the due date of 4 June 2013. The ARC College of Experts considered the rejoinder alongside the assessors’ comments and scores.

Of the cohort of 500 proposals considered by the Physical, Mathematical and Information Sciences and Engineering panel, FT130100026 was ranked 442 on the basis of all assessors’ scores. Following deliberations at the Selection meeting, 81 proposals out of 500 were recommended for funding in this panel.

Following the assessment, and pursuant to section 33B(b) of the ARC Act, the recommendations were submitted by the Chief Program Officer to the ARC CEO for approval. On 9 October the ARC CEO agreed with the ARC College of Experts’ recommendation not to fund FT130100026.

UC, as the Administering Organisation for FT130100026, was advised by email dated 8 November 2013 that the assessment process for the Future Fellowships scheme had been finalised and the Proposal was unsuccessful.

5.     Reasons for decision

The ARC assessed FT130100026 along with a selection of others from the ARC Future Fellowships for funding commencing in 2013. (In relation to FT130100026, a copy of the Assesor’s comments is provided at Attachment A to this Statement.)

Pursuant to section 33B(b) of the ARC Act, and clause 11.1.3 of the FT13 Funding Rules, on 9 October 2013 the CEO made a decision to agree with the recommendation of the ARC College of Experts that FT130100026 not be approved for funding, and provided this recommendation to the Minister responsible for the ARC.

21    Professor Byrne attached to the Statement of Reasons which he furnished to Dr Ghanem a copy of each of the Detailed Assessments (A) to (D) made in respect of funding proposal FT130100026.

22    The Briefing Note submitted to the Minister in respect of the 2013 round included as Attachment B a full list of proposals which Professor Byrne recommended not be funded. Attachment B included reference to Proposal FT130100026. In Attachment B to the Briefing Note, that proposal was described by Professor Byrne as “uncompetitive”. Most, if not all, of the other proposals described in Attachment B were also described as “uncompetitive”.

23    Ms Abela said that the descriptor “uncompetitive” was defined at Attachment F to the Briefing Note to the Minister to mean that a proposal has been assessed in accordance with the Future Fellowship Funding Rules for funding commencing in 2013 as not being as competitive as the proposals which were recommended for funding.

24    The process followed by the ARC in relation to the selection and approval of proposals submitted to it are outlined in the 2013 Funding Rules. In particular, the 2013 Funding Rules provided:

11.1.1    Assessment of proposals is undertaken by the ARC, which has the right to make recommendations for funding to the Minister, based on any number of assessments or solely on the basis of its expertise.

11.1.2    All proposals will be considered against eligibility criteria and compliance with the Funding Rules.

11.1.3    All Proposals may be:

a.    assigned to independent assessors, from a range of organisations, who will assess and report, which may include written comments, on the Proposal against the selection criteria; and

b.    ranked and allocated a budget, relative to other Proposals, by the ARC College or other Selection Advisory Committee, on the basis of the Proposal, any assessors’ reports and any rejoinder.

11.1.4    Following the recommendations of the ARC College or other Selection Advisory Committee, the CEO must make recommendations to the Minister in relation to what Proposals should be approved and at what level of funding, and what Proposals should not be approved.

25    Under s 59(1) of the ARC Act, each year, the CEO of the ARC is required to prepare a set of rules dealing with the matters set out in s 59(2) for funding proposals that relate to each particular funding year. That set of rules must then be approved by the Minister pursuant to s 60. The rules take effect from a time determined by the CEO which time must not be before the Minister approves them.

26    Under s 53(1)(d) of the ARC Act, a funding proposal must not be approved under s 51(1) of that Act, or recommended by the CEO of the ARC for such approval, as deserving financial assistance under Pt 7 Div 1 of the ARC Act unless the eligibility criteria set out in the approved Funding Rules are satisfied in relation to the proposal.

27    Clause 9.1.2 of the approved Funding Rules in respect of the Future Fellowship scheme for 2013 provided that:

The Future Fellowship Candidate may not submit more than two Future Fellowships Proposals in the funding rounds between 2009 and 2013. This includes Proposals that have been withdrawn after the closing time of submission of Proposals and Proposals which were deemed ineligible by the ARC.

28    Dr Ghanem had submitted two Future Fellowships proposals, one in 2009 and another in 2010. His 2013 proposal was, therefore, his third proposal in the funding rounds between 2009 and 2013. For this reason, it appeared to me that Dr Ghanem did not satisfy the eligibility criteria laid down in the 2013 Funding Rules. However, Dr Ghanem told me that, as a term of the settlement of the 2012 judicial review proceeding brought by him in respect of the 2009 and 2010 funding proposals submitted by him, he was given an assurance by the ARC that the CEO of the ARC and the Minister would not treat any 2013 funding proposal submitted by him as invalid by reason only of the fact that it would be his third proposal submitted in the years 2009–2013. The legal significance of his having been given such an assurance was not explored before me.

29    The ARC considers that peer review should play a critical role in the assessment of Future Fellowships Proposals. The peer review process is based upon both the independent Expert Assessors and the generalist assessors in the ARC College of Experts or the generalist assessors who come from a Selection Advisory Committee.

30    Proposal FT130100026 was assessed by four independent Expert Assessors (referred to as “Detailed Assessors”) and two ARC College or Selection Advisory Committee members (referred to as “General Assessors”).

31    The Expert Detailed Assessors may include written comments on the proposal against the relevant selection criteria. This occurred in the case of Dr Ghanem’s proposal. The detailed assessments were provided to Dr Ghanem as part of the Statement of Reasons given by Professor Byrne pursuant to his request made under s 13(1) of the ADJR Act.

32    The Expert Detailed Assessors are typically provided with only one or a small number of proposals to assess using an A–E rating scale. These individuals are generally assigned proposals to assess which are within or related to their particular areas of expertise.

33    In the case of Proposal FT130100026, each of the Detailed Assessors was involved only in the assessment of that proposal and was not asked to assess any other proposals in the 2013 funding round.

34    Once assessment by the Detailed Assessors is complete and an opportunity for rejoinder has been afforded to the administering organisation (in the present case, UCAN), members of the ARC College of Experts or of a Selection Advisory Committee consider the Future Fellowships proposals received. These assessments are referred to as “General Assessments”. There is no requirement under the Funding Rules for the ARC College of Experts or Selection Advisory Committee member assessors to give reasons for their rankings.

35    At the time when Proposal FT130100026 was assessed, there were 159 members of the ARC College of Experts. These experts are identified on the ARC’s website by discipline group. The members of this group nominate to be a part of the group and are approved for appointment by the CEO of the ARC for one to three years. Importantly, they are not ARC officers but are considered experts of international standing drawn from the Australian research community. They come from the higher education sector, industry generally and the public sector research organisations. Although there may be a small number of researchers from UTAS, UWA and UCAN who are members of the ARC College of Experts, none of those individuals was involved in the review of proposal FT130100026.

36    In the present case, the ARC took particular steps to ensure that knowledge of the 2012 proceeding between Dr Ghanem and the ARC was strictly confined. On the evidence before me, only the CEO of the ARC (Professor Byrne), Ms Abela, and a small number of ARC officers with a need to know were aware that Dr Ghanem had previously applied for funding. Ms Abela said that, having carefully reviewed the relevant files relating to the assessment process for proposal FT130100026 and based upon other relevant enquiries, she found no evidence to suggest that the existence and subject matter of Dr Ghanem’s prior judicial review proceeding had been made known to any of the individuals assessing proposal FT130100026.

37    The ARC received a total of 1,236 proposals for Future Fellowships for funding commencing in 2013. This was a significant increase upon the number of applications received for funding commencing in 2012. Only the top 201 proposals were able to be recommended for funding. Effectively, this meant that only one proposal in six was ultimately successful.

38    As Ms Abela testified, the General Assessors from the ARC College of Experts or the Selection Advisory Committees have an important role to play, not only rating each individual proposal on its merits but also in ranking the proposals relative to one another for the purpose of making recommendations to assist in the distribution of the limited amount of funding available in each calendar year.

39    In the present case, the two General Assessors involved in assessing proposal FT130100026 reviewed a total of 61 and 49 other proposals respectively. They also had the benefit of the detailed assessments provided by the Detailed Assessors in respect of each of those proposals, including proposal FT130100026. In addition, they had the rejoinder provided by UCAN.

40    At pars 30–32 of her affidavit affirmed on 3 March 2014, Ms Abela said:

30.    I have examined the scores provided by each of the assessors at Annexure AG-2 of the affidavit affirmed by the Applicant on 5 December 2014 [sic]. I have seen many ratings records for many Future Fellowship proposals since 2009. In my experience it is not unusual for the ratings of the expert and general assessors to vary, especially when the expert assessors only assess a handful of applications and the general assessors are reviewing a large number of applications and are required to rank proposals with similar ratings, to assist in determining which proposals should be recommended for the limited funding available.

31.    The ratings provided by all assessors inform the discussion of the Selection Meeting of the ARC College of Experts held in Canberra. Following this meeting a list of grants recommended for funding is provided to the CEO for consideration, and the CEO of the ARC then presents that to the Minister, together with the brief attached to the Applicant’s affidavit affirmed on 18 February 2014 (‘Annexure AG-4’).

32.    In the case of Proposal FT130100026, it was ranked 442 out of 500 proposals in the Physical, Mathematical and Information Sciences and Engineering panel. Only 81 of the 500 applications in this panel were recommended for funding.

41    Annexure AG-2 became Exhibit A at the hearing.

42    In her second affidavit, Ms Abela testified that, had Dr Ghanem’s proposal been assessed using only the scores provided by the Detailed Assessors, it would have received a score of 73. She said that, in that event, Dr Ghanem’s proposal would have ranked 149 out of 500 proposals received in the Physical, Mathematical and Information Sciences and Engineering discipline panel for Future Fellowships proposals. She said that the lowest funded application in this panel was ranked 120 and that the lowest ranked application for a level 2 Future Fellowship was ranked 70 with a score of 85. The effect of this evidence is that, even if the assessments made by the General Assessors were disregarded, Dr Ghanem’s proposal would not have received funding.

43    In her second affidavit, Ms Abela also addressed Dr Ghanem’s allegation that Professor Brian Yates had been involved in selecting the particular individuals who were to provide the general assessments of Dr Ghanem’s proposal and had chosen people who would deliberately and inappropriately cause that proposal to be rejected for funding.

44    Ms Abela testified that, although Professor Yates may have been involved in nominating to the general panel of General Assessors the two individuals who ultimately made the general assessments of Dr Ghanem’s proposal, Professor Yates did not recommend which external assessors should assess that proposal. The external assessors were selected by the lead College of Experts member assigned to the proposal as a discipline expert and not by any ARC staff. Professor Yates did not attend any of the three panel selection meetings for the Future Fellowships scheme including the August 2013 meeting.

45    The ARC enters into confidentiality agreements with assessors in order to preserve the integrity of the selection process. Ms Abela informed the Court that she did not consider that she was in a position to breach those arrangements by revealing the names of the particular assessors involved in the assessment of Dr Ghanem’s proposal.

Consideration

Some Relevant Principles

46    Dr Ghanem filed and served a Written Submission dated 11 March 2014 in which he addressed the relevant principles of law relating to summary dismissal, the grounds of judicial review raised in his Amended Originating Application and the question of his standing to bring the present proceeding.

47    There is no doubt that Dr Ghanem is a “person aggrieved” by the two decisions which he challenges. The respondents did not suggest otherwise.

48    In Shammas v Canberra Institute of Technology [2014] FCA 71 at [50]–[51], I said,

In Singh v Super City Home Loans Pty Ltd [2011] FCA 646, at [129], I summarised the principles to be applied when the Court comes to consider exercising its power to summarily dismiss a proceeding pursuant to s 31A of the Federal Court Act in light of the High Court’s decision in Spencer v The Commonwealth (2010) 241 CLR 118. It is not necessary to extract that summary in full here. It is sufficient to note the following:

(a)    The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to a rule of Court in the terms of O 11 r 16 of the Federal Court Rules 1979.

(b)    The power to terminate proceedings summarily should be exercised with caution.

(c)    There must be a high degree of certainty that the claimant cannot succeed if the proceeding is allowed to go to trial in the ordinary way.

(d)    There must be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success”. The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail. This test constitutes a radical departure from previous regimes which required that the proceeding must be shown to have no prospects of success.

As I observed at [13] above, I am of the view that the test for summary dismissal laid down by r 26.01(a) FCR is the same test as the test for summary dismissal specified in s 31A of the Federal Court Act.

49    Here, in addition to relying upon s 31A of the FCA, the respondents also rely upon r 26.01(1)(a) and r 26.01(1)(c) FCR. Rule 26.01(1)(c) FCR provides:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

…

(c)    no reasonable cause of action is disclosed; or

...

50    The respondents submit that Dr Ghanem has no reasonable prospect of successfully prosecuting the proceeding and, in addition, that, in respect of his allegation that the General Assessors acted in bad faith when they assessed his application, no reasonable cause of action is disclosed.

51    I intend to apply the principles which I summarised in Shammas to my consideration and determination of the respondents’ summary dismissal application.

52    In addition, the respondents’ advocate placed particular reliance on [25] in Spencer v Commonwealth (2010) 241 CLR 118 at 132 (per French CJ and Gummow J) where their Honours said:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

53    The proposition was that Dr Ghanem’s argument that the ARC and the Minister committed an error of law by acting upon Professor Byrne’s recommendations in circumstances where those recommendations had not been supported by adequate reasons (as to which, see s 52(3)(d) of the ARC Act) was precluded by binding High Court authority (Sutton v Commissioner of Taxation (1959) 100 CLR 518) and thus fell squarely within the last sentence of [25] in Spencer.

54    I shall return to this contention later in these Reasons when addressing Dr Ghanem’s grounds of review.

Dr Ghanem’s Case

Ground 1 – Dr Ghanem was Ineligible to Apply

55    At [25]–[28] above, I have referred to Dr Ghanem’s argument that funding proposal FT130100026 was not able to be approved under s 51(1) of the ARC Act or recommended by the CEO of the ARC under subs 52(1) of that Act for such approval, as deserving financial assistance under Pt 7 Div 1 of that Act, because Dr Ghanem did not satisfy cl 9.1.2 being part of the eligibility criteria set out in the relevant approved Funding Rules.

56    Dr Ghanem submitted that, if he is correct in his primary contention to the effect that he was not eligible to apply for funding in 2013, the Minister ought not to have made a decision not to approve his proposal since his proposal should never have been submitted to the Minister in the first place. Dr Ghanem went on to submit that there was no evidence to suggest that proper procedures had been followed allowing a waiver or exception to the applicability of the eligibility criterion specified in cl 9.1.2 of the Funding Rules.

57    The advocate who appeared for the respondents at the hearing before me submitted that the underlying premise advanced by Dr Ghanem in support of his submission was incorrect. I took this to mean that the respondents were submitting that, contrary to Dr Ghanem’s argument, Dr Ghanem was, in fact, eligible to receive a Future Fellowship in the 2013 round. The respondents’ advocate did not develop this submission. On the material before me, there is much to be said for Dr Ghanem’s contentions that he was not eligible to receive a grant in the 2013 round and that the ARC’s inclusion of Dr Ghanem’s proposal in that round was of no effect. If those contentions are correct, then the Minister’s decision not to recommend Dr Ghanem’s proposal for funding was also of no effect.

58    However, in light of Dr Ghanem’s assertion to the effect that, at the time when he settled the 2012 proceeding brought by him, he was assured that the ARC would not treat any funding proposal submitted by him for the 2013 round as invalid merely because of the circumstance that he did not satisfy the eligibility criterion embodied in cl 9.1.2 of the Funding Rules, I have a concern that the ARC may have effectively waived compliance with that clause or otherwise exempted Dr Ghanem from the consequences of his not satisfying the requirements of that clause even though, at the moment, there is no evidence before me proving either of those matters. The ARC did process Dr Ghanem’s proposal and it is likely that, one way or another, it took steps to ensure that there was no ongoing difficulty with his eligibility for the 2013 round.

59    The respondents’ advocate submitted that I did not have to decide the question of whether Dr Ghanem was, in fact, eligible to be considered for a Future Fellowship in the 2013 round. He submitted that, if Dr Ghanem was not eligible, his whole case is frivolous and is bound to fail because it would not be open to the Court to grant any meaningful relief to Dr Ghanem. He also submitted that if, in truth, Dr Ghanem was eligible to be considered for such a Fellowship in the 2013 round, then the first ground of judicial review raised by Dr Ghanem in the present proceeding must necessarily fail with the consequence that the Court would then be required to move to consider Dr Ghanem’s second and third grounds. Either way, so it was submitted, Dr Ghanem’s application for judicial review in the present proceeding is self-defeating.

60    I accept the submissions advanced on behalf of the respondents. They are sound. Against the possibility that, in truth, Dr Ghanem was eligible for consideration for a Future Fellowship in the 2013 round, I will therefore now move to consider grounds 2 and 3 raised by him.

Ground 2 – Bad Faith on the Part of the General Assessors

61    Dr Ghanem’s allegation that the two General Assessors who evaluated his proposal deliberately and improperly “dumped down” the scores which they gave to his proposal in furtherance of a conspiracy or arrangement reached with Professor Yates to harm Dr Ghanem is a very serious allegation indeed. An allegation such as this must be clearly made and ultimately proved by cogent evidence.

62    Dr Ghanem has been unable to produce any evidence that could conceivably support this allegation. Dr Ghanem says that Professor Yates, with whom he had been in dispute at UTAS, manipulated the outcome of the ARC’s consideration of his proposal by selecting General Assessors who would do his bidding and then prevailed upon the chosen General Assessors to “dump down” the scores which they gave to Dr Ghanem’s proposal. His theory is that Professor Yates acted in this way in order to take revenge on Dr Ghanem for having complained about his treatment at the hands of Professor Yates while employed at UTAS.

63    There is no evidence to support Dr Ghanem’s allegations of bad faith on the part of the General Assessors and no evidence to support improper interference in the process on the part of Professor Yates. On the contrary, the evidence given by Ms Abela puts the lie to all of these assertions.

64    Dr Ghanem has had a fair and ample opportunity to satisfy the Court that he has some basis for making these serious allegations. He has been unable to bring forward any evidence whatsoever that could constitute such a basis.

65    In those circumstances, I have come to the conclusion that Dr Ghanem has no prospect of making good these serious allegations let alone any reasonable prospect of doing so.

Ground 3 – Inadequate Reasons for the CEO’s Recommendations

66    Section 52(3)(d) of the ARC Act provides that:

52    Recommendations by CEO in relation to approval of proposals

…

(3)    The recommendation that the CEO makes in relation to a particular proposal for expenditure on a research program (whether it is a recommendation that the proposal should be approved under subsection 51(1) or should not be so approved) must include the following information:

…

(d)    a statement of the reasons why the proposal is, or is not, recommended for approval under subsection 51(1).

67    Dr Ghanem submitted that the requirements specified in s 52(3) are all mandatory requirements. He then submitted that, in the present case, merely describing Dr Ghanem’s proposal as “uncompetitive” read with the explanation of that term given in Attachment F to the Minister’s Briefing Note did not satisfy the statutory obligation to provide a “… statement of the reasons why the [particular] proposal … is not recommended for approval under s 51(1)”.

68    The issue here is whether the Briefing Note given to the Minister contained a statement of reasons which complied with s 52(3)(d) of the ARC Act.

69    The respondents’ advocate submitted that the brevity of the reasons given should be understood in the context in which the Briefing Note was given to the Minister. He drew my attention to the fact that there were 500 applications for Future Fellowships in the 2013 Funding Round within the relevant discipline group and 1,236 applications for Future Fellowships in total. He emphasised that the Briefing Note made clear to the Minister that the process of assessment which I have described at [29]–[42] above had been undertaken for the 2013 round and had resulted in recommendations for funding in respect of only 201 applications. The Briefing Note placed particular importance upon the fact that a comparison between applications had been undertaken by qualified persons in order to come to some sensible view as to their relative worth. Of necessity, given the task confronting both the CEO and the Minister, very substantial reliance must be placed upon the assessments made by the various assessors during the assessment process. The Statement of Reasons is designed to inform the Minister of matters which might be relevant to his funding decisions. The Statement of Reasons is not designed to provide to a disappointed applicant full reasons for the decisions which were made in respect of that applicant’s funding application.

70    The respondents’ advocate cited the High Court case of Sutton in support of his submission that the reasons given in the present case by the CEO to the Minister in the Briefing Note were sufficient for the purposes of s 52(3)(d) of the ARC Act. In Sutton, when addressing a requirement for the Commissioner of Taxation to furnish to a Taxation Board of Review his reasons for disallowing the taxpayer’s claim, at 525, the Court said:

The reasons which the commissioner in this case forwarded in his statement have the merit of brevity, and the taxpayer complains that they are so concise that they amount to nothing. What they do is to give ultimate conclusions and figures justifying the assessments, and not the steps in reasoning by which they were reached. It is not possible to say that this amounts to nothing, even if it provides less than the author of reg. 35(1)(c) might have hoped. But again the board has no authority to impose on the commissioner a legal obligation to give more reasons. It is to be observed that reg. 35(1)(c) is directed not to ensuring that the taxpayer is informed of the commissioner’s reasons but to supplying the board with them. It is not the board that appears to be dissatisfied with the commissioner's statement of reasons.

71    The respondents’ advocate submitted that, although the facts in Sutton were not precisely the same as those in the present case, the case was sufficiently analogous to the present case to provide a useful guide in respect of the complaint raised by Dr Ghanem as his ground 3.

72    I think that the reasons given in the Statement of Reasons provided by the CEO to the Minister in the Minister’s Briefing Note, although ultimately expressed as conclusions, were nonetheless adequately supported by the text of the Briefing Note and the various attachments forwarded with that Briefing Note. The Minister must be taken to have a good appreciation of the process ordinarily undertaken by the ARC in respect of funding decisions. In my judgment, the reasoning which underpinned the High Court’s judgment in Sutton is apt to be applied in the present case.

73    Ground 3 is not likely to be improved by further evidence. For the reasons which I have explained, I do not think that Dr Ghanem has a reasonable prospect of successfully prosecuting ground 3.

Relief

74    Dr Ghanem seeks a reconsideration of his 2013 funding proposal in the 2014 round. He does not seek to secure a reconsideration of that proposal in the 2013 round. No doubt this is because such a reconsideration would now prove to be impossible. In my view, there is no real prospect that the Court would consider ordering such a reconsideration in the 2014 round.

75    The 2014 round is an entirely separate process into which Dr Ghanem has not entered. The Court does not have the power to order that his 2013 proposal stand as a separate and fresh application in the 2014 round.

76    In addition, even if Dr Ghanem was eligible to be considered for a Future Fellowship in the 2013 round, an order setting aside the Minister’s decision not to fund his proposal takes the matter nowhere. As matters presently stand, the Minister did not approve funding for his proposal. An order setting aside that decision would leave Dr Ghanem with no decision, one way or the other, and no order compelling the Minister to reconsider his decision.

Costs

77    The parties made separate submissions on the question of costs. I do not consider it necessary to traverse those submissions. I see no reason why costs should not follow the event.

Conclusions

78    For the reasons which I have explained above, I have come to the view that Dr Ghanem has no reasonable prospect of successfully prosecuting any of the grounds of review upon which he relies in his Amended Originating Application. I therefore propose to dismiss the whole of that Application summarily. Costs will follow the event.

79    There will be orders accordingly.

Associate:

Dated:    13 May 2014