Federal Court of Australia
Ashby v Commonwealth of Australia (No 2)  FCA 830
MINISTER FOR FINANCE
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The balance of this proceeding be summarily dismissed, subject only to the hearing and determination of any application for costs by the respondents.
2. By 4.00 pm on 6 August 2021, or such further time as may be allowed, the respondents advise the applicant and the chambers of Justice Bromwich by email whether there is to be any application for costs, and if so, at the same time furnish proposed procedural orders for the making, hearing and determination of any such application, including making provision for any necessary case management hearing in relation to such an application.
3. Within 7 days of the receipt of any communication in accordance with order 2, the applicant advise the respondents and the chambers of Justice Bromwich by email any response to procedural orders proposed by the respondents for the making, hearing and determination of any costs application, including making provision for any necessary case management hearing in relation to such an application.
1 The applicant, Mr James Ashby, commenced this proceeding against the Commonwealth of Australia and the Minister for Finance in relation to the refusal of his application for an act of grace payment under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) to cover the costs of a legal proceeding he brought in 2012 under the Fair Work Act 2009 (Cth) against the former speaker of the House of Representatives for whom he had worked, Mr Peter Slipper. Mr Ashby abandoned the proceeding against Mr Slipper before trial. His case was brought by way of what might be described as conventional judicial review grounds and also by way of novel allegations of breaches of the Fair Work Act said to arise from the refusal of his application for an act of grace payment. The Fair Work Act aspect was brought both directly under that Act and by way of associated judicial review based on alleged breaches of that Act.
2 Mr Ashby’s conventional judicial review case was heard and determined adversely to him, with those parts of the proceeding being dismissed: Ashby v Commonwealth of Australia  FCA 40; 386 ALR 23. The facts underling this proceeding are set out in some detail in Ashby v Commonwealth and do not need to be repeated except as specifically relevant to these reasons. These reasons are to be read with that judgment. What remained to be determined in this proceeding after Ashby v Commonwealth was Mr Ashby’s allegations of breaches of the Fair Work Act and associated judicial review. Those remaining causes of action were made the subject of an interlocutory application by the respondents for summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), dated and filed on 5 March 2021.
3 The remaining causes of action after the decision in Ashby v Commonwealth may be summarised as follows:
(a) an alleged contravention of the prohibition in s 340(1) of the Fair Work Act on “adverse action”, as defined in s 342 of that Act, by reason of refusing Mr Ashby’s act of grace application because he had exercised a “workplace right” (namely commencing the proceedings against Mr Slipper) rather than pursue other workplace rights, giving rise to claims for damages, interest or reconsideration of his act of grace application by the Minister or a different delegate of the Minister, and pecuniary penalties; and
(b) an associated judicial review case asserting that the decision to refuse the act of grace application was either void, or if not void, entitled Mr Ashby to relief under s 5(1)(f) or (j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as constituting an error of law on the face of the record or otherwise contrary to law, or alternatively a writ in the nature of certiorari because of a non-jurisdictional error of law appearing on the face of the record, by reason of ascribing weight to:
(i) Mr Ashby’s omission to exercise other workplace rights;
(ii) Mr Ashby’s decision to bring legal action against Mr Slipper; and/or
(iii) a claim that Mr Ashby had control of the proceedings brought against Mr Slipper and could have discontinued them.
4 In his written submissions, Mr Ashby foreshadowed seeking leave to file an amended originating application to rely upon a ground of judicial review to the effect that the Minister’s delegate, in deciding not to grant his application for an act of grace payment, had regard to “impermissible considerations” independently of any breach of the Fair Work Act, by giving “negative weight” to the choices that he made about the exercise of his workplace rights. In substance, but lacking precision, this appeared to be an attempt to advance a conventional irrelevant considerations ground of judicial review, but relying upon the existence of rights under the Fair Work Act as affecting the scope of considerations able to be taken into account in determining an application for an act of grace payment under s 65 of the PGPA Act, falling short of reliance upon any breach of the Fair Work Act.
5 As the application to further amend the originating application was never squarely made, I can only indicate what I would have done had that taken place. I would have refused leave to further amend the originating application for the reasons that follow. If it were to be contended that what took place was in fact an application for leave to amend the originating application, the following are my reasons for refusing that leave, for which orders can formally be made if necessary.
6 First, the history of this proceeding, which was closely case managed, had resulted in dividing the case into conventional judicial review grounds independently of establishing any breach of the Fair Work Act, and grounds which relied upon alleged breaches of the Fair Work Act either directly or as a feature of judicial review reliant upon such breaches being established. The conventional judicial review grounds were deliberately heard first as they would take less hearing time and, if successful, might have obviated the need for the Fair Work Act issues to be heard and determined, such as by reason of the adverse decision on the act of grace application being set aside and required to be reconsidered. Those conventional judicial review grounds were heard in late October 2020 after ample time and opportunity had been provided to Mr Ashby to advance any further grounds of judicial review going beyond his originating application and concise statement.
7 That time and opportunity had resulted in Mr Ashby filing and relying upon an amended statement of grounds of judicial review dated 7 October 2020, accepted for filing on 8 October 2020. This was the proper time and opportunity for Mr Ashby to advance any grounds of judicial review which did not depend upon establishing breaches of the Fair Work Act. That process and thus that prior hearing and judgment could, and would, easily have accommodated any ground of judicial review asserting that irrelevant considerations for the purpose of the determination of an act of grace payment application under s 65 of the PGPA Act are enlarged by reference to the terms of the general protections bestowed by the Fair Work Act. This is so even though such an argument would have been unpromising, given the primacy of the empowering statute as the means of determining relevant and irrelevant considerations, not ordinarily affected any other statute even if the operation of that other statute might be affected by the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at 39-40; see also Minister for Immigration and Border Protection v BHA17  FCAFC 68; 260 FCR 523 at -, especially -.
8 It was too late for Mr Ashby to raise this this further ground of judicial review unrelated to any breach of the Fair Work Act after all the judicial review grounds that he chose to rely upon had been pleaded, heard and determined. It was only grounds which relied upon a breach of the Fair Work Act that were to be heard, if that was needed, subsequently and separately from such conventional judicial review grounds.
9 Secondly, even if the first reason was not for some reason a sufficient basis for refusing leave, any proposed draft amended originating application could and should have been provided to the respondents and to the Court well before the hearing of the respondents’ interlocutory application for summary judgment, in order that precisely what was sought to be advanced could be properly understood, considered and assessed. It was not sufficient to foreshadow in submissions the general nature of an amendment that might be sought, especially when this is only raised at such a late stage of the life of the proceeding, after there had already been a substantive hearing at which such grounds could and should have been advanced.
10 Nor was it sufficient, given the particular history and circumstances of this proceeding, either to leave the detail of what was sought to be relied upon by way of an amended pleading to be divined from submissions on the topic, or to have this aspect of the proceeding adjourned, further hearing time required, and costs incurred because this had not been done. Parties to civil proceedings in this Court are required to act consistently with the overarching purpose of the Federal Court Act: see Part VB, and in particular ss 37M(1)(b), 37M(2)(b) and (e), 37N(1) and 37N(2)(a). The very late foreshadowed application for leave to file an amended originating application reflected a failure to pay heed to those obligations.
11 In any event, I was not satisfied that the general nature of the proposed amended originating application had any greater merit than the existing remaining causes of action, relying as it apparently would upon substantially the same legal substratum argument as to the interaction between s 65 of the PGPA Act and s 340(1) of the Fair Work Act. If those existing causes of action were not viable to proceed to trial, it was highly unlikely that the proposed amended originating application would have enjoyed any better prospect of success. It was not a proper use of court time and resources, nor in the interests of justice, to allow an essentially speculative variation in the case to be advanced at such a late stage.
12 Turning to the outstanding causes of action and the respondents’ application for them to be summarily dismissed, s 31A(2) of the Federal Court Act allows for a proceeding or part of a proceeding to be summarily dismissed if the Court is satisfied that the applicant has no reasonable prospects of successfully prosecuting it. Certainty of failure is not required. The authorities dealing with s 31A are well-known and the principles, as opposed to their application in the particular circumstances of this case, were not in dispute: see Spencer v Commonwealth of Australia  HCA 28; 241 CLR 118 at -, especially at -; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd  FCAFC 60; 167 FCR 372 at -; see also the helpful summary of Spencer and a number of the other key cases by Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy  FCA 188 at -.
13 While the respondents bear the onus of establishing that summary judgment should be granted, even under the prior more stringent test before the enactment of s 31A, a fatal legal flaw in a case may render it “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. This is such a case.
14 At the time that Mr Ashby’s act of grace application was made and determined, he was employed by the Commonwealth under the Members of Parliament (Staff) Act 1984 (Cth), albeit working for a different member of parliament than Mr Slipper, who was by then no longer a member of parliament. By s 338 of the Fair Work Act, the general protections provisions of the Fair Work Act apply to the Commonwealth. That includes protection against, and sanctioning of, “adverse action”, addressed below.
15 The relevant provisions of the Fair Work Act are as follows:
(a) s 340(1) relevantly provides that a person must not take “adverse action” against another person because that other person has, or has not, exercised a “workplace right”;
(b) s 12 defines “action” to include an omission;
(c) s 360 provides that it is sufficient if a proscribed reason is one of the reasons for taking action;
(d) s 341(1)(b) and (c) relevantly provide that a person has a workplace right if the person is able to initiate proceedings or make a complaint under a workplace law;
(e) s 341(2)(b) defines “proceedings” to include court proceedings under a workplace law – here, on Mr Ashby’s case, the proceedings under the Fair Work Act against Mr Slipper;
(f) s 342(1) in combination with item 1 in the table set out in that subsection, relevantly provide that “adverse action” is taken by an employer against an employee if the employer injures the employee in his or her employment or alters the position of the employee to the employee’s prejudice – here, on Mr Ashby’s case, refusing the application for an act of grace payment because he brought a proceeding under the Fair Work Act against Mr Slipper, and did not discontinue that proceeding, instead of availing himself of other workplace rights options to address his allegations against Mr Slipper as detailed in Ashby v Commonwealth at , which included counselling, a complaints resolution procedure, and a workers compensation claim, and related remedies and actions;
(g) s 342(3)(a) relevantly provides that “adverse action” does not include action that is “authorised by or under … [a] law of the Commonwealth” – here the respondents rely upon s 65 of the PGPA Act as being such a law, while Mr Ashby disputes that is so.
16 It is not in doubt that an important reason why the act of grace application was refused was because Mr Ashby chose to pursue the litigation against Mr Slipper and thereby to incur costs, when alternative and less costly remedies, including the exercise of other workplace rights, were available to him. Mr Ashby contended that several of those options were not viable, but it is evident that the delegate did not accept that was so: see Ashby v Commonwealth at .
17 The respondents’ argument proceeded upon the ultimately agreed basis of assuming in Mr Ashby’s favour (without conceding that this assumption was in fact correct) that he could succeed at trial on his adverse action claim if the s 342(3)(a) exception did not apply. It follows that the live question in this summary judgment application is whether that exception applies to a decision made under s 65 of the PGPA Act not to grant an act of grace application for reasons including those relied upon by Mr Ashby.
18 Both the respondents and Mr Ashby rely upon two decisions of single judges of this Court on the scope of the exception in s 342(3):
(a) Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd  FCA 462; 232 FCR 560 per Flick J; and
(b) Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)  FCA 1046 per Wigney J.
19 In Rio Tinto, the respondent employer had paid different termination payments to union and non-union employees, pursuant to the requirements in their different workplace instruments. The employer sought to characterise the difference as being “authorised” by those instruments and the provisions giving effect to them in ss 50, 51 and 52 of the Fair Work Act, so as to fall within s 342(3)(a). Section 50 provides that a person must not contravene a term of an enterprise agreement; s 51 provides that an enterprise agreement only imposes obligations or gives rise to a contravention, or gives an entitlement if it applies to a person; and s 52 provides for when an enterprise agreement applies to a person. In rejecting the employer’s argument as to the application of s 342(3)(a), Flick J:
(a) held that the exception had to be construed in a way that gave effect to the prohibition on discrimination of this kind between employees and also gave effect to conduct which the Fair Work Act otherwise authorises, and held that construing s 342(3)(a) as contended would give unwarranted pre-eminence to what was authorised over what was prohibited: ;
(b) referred to Waters v Public Transport Corporation (1991) 173 CLR 349 at 369 as authority for the proposition that an exception (Flick J used the term “exemption”) should not be given a wide construction where it would be inconsistent with general scheme of the statute in which it appears: ;
(c) found that although provisions such as ss 50, 51 and 52 of the Fair Work Act required the payment to employees of their lawful entitlements, no provision authorised the payment of “discriminatory” amounts – Rio Tinto was simply making payments according to legal entitlements, but no provision required it to make different payments;
(d) distinguished a different outcome in Keech v Metropolitan Health Service (WA)  FCA 1332; 215 FCR 393 in which there had been an issue of direct compliance with a statutory obligation: -;
(e) said that the term “authorise” in s 342(3)(a) had to be approached with some degree of caution and that there was no apparent reason why s 342(1) should not be read beneficially, such that the exception contemplates action that is either expressly authorised or otherwise sanctioned or approved, in that case, by the Fair Work Act – Flick J effectively acknowledged that an authorising provision for the purposes of s 342(3) may, in a given case, be found in another law of the Commonwealth, with respondents in this case relying upon s 65 of the PGPA Act: ;
(f) found that the sections of the Fair Work Act that stood behind the instrument provisions and were relied upon by Rio Tinto (ss 50, 51 and 52) provided no real authority to engage in conduct proscribed by s 342(1), item 1(d): ; and
(g) after analysing several provisions in the Fair Work Act addressing the question of discrimination and the natural and ordinary meaning of “authorised by or under” in s 342(3) as considered in a range of contexts and authorities, concluded that in this context what was required was the identification of some authority or legal power, or some provision that empowered the action taken, in the context of that case the action being discrimination between employees: -.
20 In De Martin, the employer entered into an enterprise agreement that was inconsistent with a subsequent highly prescriptive government code of conduct with legislative backing, dealing with tendering and the performance of building work. The employer sought to reconcile the two by varying the enterprise agreement, a course that was rejected by a majority of its employees. The possible solution that was arrived at was to consider making all employees covered by the enterprise agreement redundant, because of the risk of being non-compliant with the code, a proposal that was advanced at workplace consultative meetings.
21 The applicant union in De Martin alleged that advancing this proposal amounted to adverse action by way of coercion to vary the enterprise agreement and also a breach of other legislation. One of the issues was whether the impugned actions were authorised by or under the Fair Work Act for the purpose of the application of the exception in s 342(3)(a). The employer asserted that they were authorised because a consultative process provided for in cl 31 of the enterprise agreement was prescribed by the Fair Work Act. No specific provision of the Fair Work Act was identified as providing such authority. In rejecting the employer’s argument as to the application of s 342(3)(a), Wigney J:
(a) found that the conduct in question was not in any relevant sense authorised by or under the Fair Work Act because while:
(i) cl 31 of the enterprise agreement provided that where the employer was seriously considering major workplace change it must notify and consult with its employees;
(ii) the enterprise agreement was a workplace instrument for the purposes of that Act; and
(iii) s 50 of the Fair Work Act provides that a person must not contravene a term of an enterprise agreement,
it did not follow that s 50 or any other provision of the Fair Work Act authorised any (in the sense of all) conduct in which an employer engaged pursuant to that consultative process: -;
(b) referred to Rio Tinto in some detail, including quoting - and -, and applied it to reach the same conclusion, namely that there was no provision of the Fair Work Act, including s 50, that authorised action that would otherwise amount to threatening to dismiss an employee, injuring an employee in his or her employment, or altering the position of such an employee to that employee’s prejudice: -; and
(c) adopted Flick J’s finding in Rio Tinto that the ordinary meaning of “authorise” in s 342(3) as being to give legal authority or power or to empower, describing that as being broadly consistent with what Jordan CJ had said in Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 at 18, namely that the natural meaning of authorise is to confer upon someone a right to do something which they would not otherwise possess (), also finding that the evidence did not in any event establish that the conduct was required by the clause relied upon ().
22 The details of both Rio Tinto and De Martin referred to above help to understand better the basis for the conclusions reached in each. I agree with the reasoning and conclusions in both of those cases. The respondents accurately summarise the effect of those two cases as being that a Commonwealth law relied upon to authorise “adverse action” must be shown to have the dual characteristics of:
(a) giving legal authority or power to take the impugned action; and
(c) conferring authority to engage in the type of adverse action complained of, here to injure or prejudice as asserted by Mr Ashby, being conduct that, but for the exception in s 342(3)(a) would be, it is assumed in his favour for the purposes of this application, “adverse action” contrary to s 342(1), items 1(b) and 1(c) respectively.
23 In a part of the earlier amended submissions advanced on behalf of Mr Ashby in October 2020, which were deferred until the hearing of this aspect of his case, he argued that there were two possible constructions of s 342(3):
(a) it prevented anything done under a Commonwealth statute from constituting adverse action, which he suggested would have significant consequences for anyone employed under such a statute; or
(b) it only applies where the Commonwealth statue expressly permits or contemplates that action may be taken for a reason otherwise caught by s 340(1)(a) or (b), which concern the prohibition on adverse action because of the exercise or possible exercise of a workplace right.
He submitted at that time that the latter interpretation is supported by the authority of Rio Tinto and De Martin and is the construction that this Court should adopt.
24 Since furnishing those submissions, Mr Ashby has refined his argument so that he now asserts that his preferred construction does not go so far as to require express permission or contemplation to be required by the terms of s 65(1) of the PGPA Act. However, the previously advanced requirement for express permission or contemplation is maintained in substance, given that he reiterates that there is nothing about s 65 of the PGPA Act that “indicates” an act of grace payment application can be refused “because the applicant exercised a workplace right or chose not to exercise a workplace right, or which evinces an intention to exclude relief under the Fair Work Act” if an application is refused for this reason. This argument seems to require some degree of specific reference to, or contemplation of, the Fair Work Act in s 65 before the exception can be operative.
25 A requirement for that degree of specificity in the Commonwealth law relied upon is not to be found within the terms of s 342(3)(a), nor within the two cases relied upon, Rio Tinto and De Martin, which were wholly concerned with the operation of the Fair Work Act and not with any other law of the Commonwealth. Rather, both of those cases were relevantly concerned with the existence, or more precisely, the absence, of a legal authority or power to do what was complained of. Neither relied upon there being some indication in such a provision that it was contrary to, relevantly, any general protections proscription, such as that against adverse action. Had some other provision of the Fair Work Act been found to give legal authority or power to take the impugned action, then nothing more specific would have been required in such a provision.
26 There is nothing in either Rio Tinto or De Martin to suggest that any such provision, had it existed, be required to refer in some specific way to, or otherwise contemplate, adverse action or any other general protection in terms. It was the conduct complained of, which independently happened to have a proscribed character, that had to be based upon some legal authority or power that authorised that conduct. It was the existence of such a legal authority or power to engage in the contravening conduct that was the missing feature in both of those cases.
27 Section 65(1) of the PGPA Act is of an entirely different character to the provisions unsuccessfully relied upon in Rio Tinto and De Martin. It provides:
The Finance Minister may, on behalf of the Commonwealth, authorise, in writing, one or more payments to be made to a person if the Finance Minister considers it appropriate to do so because of special circumstances.
28 Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:
Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.
29 The respondents’ case on the summary judgment application is that both tests identified in Rio Tinto and De Martin for the application of the exception in s 342(3)(a) are present in that s 65(1) of the PGPA Act, when read with s 33(2A) of the Acts Interpretation Act, conferred on the Minister’s delegate a broad power, to be exercised by way of a permissive discretion to make, or not to make, an act of grace payment, without there being any express or implied limitation on what could be taken into account in making the decision. On that argument, there is no shortcoming in the power in s 65(1) of the kind identified in either of those cases.
30 I agree with the respondents’ argument. An essential gateway for the favourable exercise of the s 65(1) discretion was that such a payment would be appropriate because of special circumstances. This was the hurdle that Mr Ashby failed to surmount with the delegate, relevantly at least in part for the reason that Mr Ashby had elected to commence proceedings against Mr Slipper when he had alternative less costly options available to him, at least some of which were capable of being characterised as workplace rights. The delegate effectively found that the exercise of such a choice did not amount to special circumstances so as to justify the making of an act of grace payment.
31 Section 65(1) thus gave express legal authority or power to take the impugned action of refusing the act of grace payment application upon the basis that it was made, including the election to exercise one kind of workplace right rather than another such right. There is no proper reason to read down the breadth of that power merely because the way in which it operated according to its ordinary terms, so as to amount to an exception, if required, to the application of s 342(1). Limiting characteristics of the kind identified in Rio Tinto and de Martin were absent because of the breadth of the s 65(1) power, such a power being wholly absent in those two cases. What matters is that the terms of s 65(1) authorised the decision that was made. This authorisation extended to taking into account considerations that might (not necessarily would) otherwise be characterised as adverse action under s 342(1). To find otherwise is to read down the power and discretion in s 65(1) by reference to other legislation, a course that, while not unheard of, is rare. There is no warrant for doing so in this case.
32 I am satisfied that the action taken in the exercise of the power and discretion in s 65(1) of the PGPA Act to refuse Mr Ashby’s act of grace payment application falls within the description in s 342(3)(a) of the Fair Work Act of being action that is authorised by or under a law of the Commonwealth, so as not to constitute adverse action for the purposes of s342(1). That part of the delegate’s reasons for making that decision, which might otherwise amount to adverse action, arises from the ordinary operation of s 65. That reason was therefore authorised by s 65, and the exception in s 342(3)(a) applies. In those circumstances, there is no reasonable prospect of Mr Ashby successfully prosecuting the balance of his proceeding relying upon there being adverse action. It follows that the balance of his proceeding must be summarily dismissed.
33 There remains outstanding the issue of costs, which may or may not be sought by the respondents. The orders made accommodate that possibility.