Federal Court of Australia

Laming v Independent Parliamentary Expenses Authority [2024] FCA 172

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), the requirements of r 31.02 be dispensed with such that the Originating Application filed on 7 August 2023 be treated as an application for an extension of time.

2.    The application for an extension of time filed on 7 August 2023 be dismissed.

3.    The application for an extension of time filed on 9 October 2023 be dismissed.

4.    The applicant pay the respondent’s costs of the proceeding to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

1    By an originating application first filed on 7 August 2023, and subsequently amended and re-filed on 8 September 2023, Dr Andrew Laming sought judicial review of Ruling 01/2022 – Section 37 of the Parliamentary Business Resources Act 2017 (PBR Act) made in March 2022. By application filed on 9 October 2023, he also seeks, belatedly, an extension of time pursuant to r 31.02 of the Federal Court Rules 2011 (Cth), given that his application should have been commenced within 28 days after the Ruling was furnished to him, as required by ss 11(1)(c) and 11(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2    The Ruling determined that the dominant purpose of Dr Laming’s travel from Brisbane to Hobart on 21 June 2019 was not parliamentary business, nor was his travel from Brisbane to Melbourne and return on 26 and 27 June 2019. The Ruling determined that, for the reasons set out in an attached Audit Report of Travel Expenses and Allowances for the period 21 June to 27 June 2019, Dr Laming “needs to repay to the Commonwealth … the amount of $8,288.04 and the loading penalty of $2,072.01 i.e a total of $10,360.05”.

3    Dr Laming challenged the conclusions reached in relation to the travel from Brisbane to Hobart and his time in Tasmania. He contended that he was denied procedural fairness because certain matters were omitted from the Audit, that the audit process was haphazard, and that the conclusion that his travel and expenses were not for the dominant purpose of parliamentary business was legally unreasonable. While the scope of the Audit and Ruling also included travel and expenses incurred of respect of travel from Hobart to Brisbane, and Brisbane to Melbourne, Dr Laming’s challenge does not appear to relate to either of those trips.

4    For the reasons that follow, time should not be extended to permit judicial review of the Ruling.

BACKGROUND

5    On 1 April 2021, Dr Laming was informed by letter that, pursuant to its responsibility under the Independent Parliamentary Expenses Authority Act 2017 (Cth) (IPEA Act), the Independent Parliamentary Expenses Authority (IPEA) was conducting an Assurance Review of Commonwealth-funded travel and travel-related expenses incurred by Dr Laming and his family in relation to travel between Brisbane (where his family resides), Hobart, and Melbourne, that transpired from 21 June to 27 June 2019. In that letter, Dr Laming was asked to respond in writing to a number of questions related to the travel expenses incurred during that period by close of business on 7 May 2021.

6    On 6 May 2021, Dr Laming requested a two-week extension to the timeframe on the basis that “nearly a year of email correspondence is not available in my archive”. It seems to be accepted between the parties that Dr Laming has lost access to his entire record of sent correspondence from March 2019 to January 2020 on his parliamentary email account. The reason for this loss of data remains unexplained.

7    The extension was granted, and Dr Laming responded to the questions relevant to the Hobart leg of his travel by email dated 18 May 2021 in the following terms:

The journey was always Parliamentary business, with additional family accompaniment.

Attachment: Hobart

1. The dominant purpose was Parliamentary business.

2. I attended anzsops2019 as:

a.    an MP on electorate-related travel to discuss the impact of federal policy on delivery of specialist medical services; with a focus on my outer-metro electorate, as well as regional and remote Australia. I also have related capacities; EET Committee Chair given the education and employment perspectives and a current fellow of RANZCO.

b.     The topics included workforce, training and other political issues for the profession.

c.     A copy of the program is available https://www.conferencedesign.eom.au/ranzcotas-anzsops2019.

My attendance receipts provided below.

3. There was no reason to travel apart from the Parliamentary business above.

a.     The dominant purpose was to attend and address the conference and related events.

b.     Family travelled to accompany.

c.     It facilitated family life by allowing them to be part of the conference discussions and its operation.

4. Yes, we stayed at Amberley House in Hobart.

8    On 5 November 2021, the IPEA commenced an audit of Dr Laming’s work expenses and allowances during the period 21 June 2019 to 27 June 2019. The scope of the audit was “the use of [t]ransport costs and [t]ravel allowance, and the use of [Dr Laming’s] [f]amily transport costs”. The expenses were divided into three segments:

•    expenses incurred for travel between Brisbane and Hobart and within Tasmania between 21 June 2019 and 24 June 2019;

•    expenses incurred for travel between Hobart, Canberra and Brisbane between 24 June 2019 and 25 June 2019; and

•    expenses incurred for travel between Brisbane, Melbourne, and return, and within Melbourne between 26 June 2019 and 27 June 2019.

9    On 8 November 2021, the IPEA sought responses from Dr Laming, by 22 November 2021, to six questions, the subject of which were said to be:

… the basis of a number of questions put to you since IPEA commenced an Assurance Review into this matter on 1 April 2021. To date, your responses have not provided the detail that IPEA requires to verify the dominant purpose of the expenses accessed by you and your family.

10    No response having been received, the IPEA sent a follow up letter to Dr Laming on 25 November 2021, enclosing a “Requirement to Provide Information” notice (the Notice) pursuant to s 53(2) of the IPEA Act. Dr Laming was required to respond to the Notice by 9 December 2021. An email sent by an electorate officer of Dr Laming’s office on 2 December 2021 was taken to be Dr Laming’s response to the Notice.

11    The IPEA did not consider the response to be adequate and again requested information from Dr Laming by letter dated 6 December 2021. That request was followed up by a letter from IPEA on 8 December 2021, which noted Dr Laming’s obligation to respond under the PBR Act.

12    On 1 December 2021, a “Requirement to Provide Information” notice was sent to Professor Nitin Verma AM in respect of information concerning a combined meeting of RANZCO and ANZSOPS held in Hobart in June 2019, which Dr Laming had attended.

13    In the early months of 2022, Dr Laming enquired on a number of occasions as to the status of the audit. On 3 March 2022, Dr Laming was provided with the IPEA’s Draft Audit Report. He was invited to “correct any factual errors” in the draft report and “provide any further relevant evidence for consideration in regards to the findings of the Draft Audit Report”. His response was requested by no later than 5:00pm on 17 March 2022.

14    In respect of the Hobart travel and expenses, Dr Laming responded on 16 March 2022, stating, inter alia, that Dr Verma’s statements had been misrepresented and that there was evidence of his pre-planning for the conference as early as 12 June, being his conference registration, Saturday dinner registration, accommodation and flights. He also reiterated his explanation for multiple accommodation bookings in Hobart, for which the Commonwealth had not been charged.

15    On 23 March 2022, Dr Laming emailed the IPEA to, inter alia, confirm:

1.    removal the misrepresentation of Verma’s testimony,

2.    incorporation of the four pieces of objective evidence of Hobart travel pre-planning dating from June 12, 2019.

(Errors in original.)

16    On 24 March 2022, Dr Laming was provided with the Audit and the Ruling.

17    Correspondence between Dr Laming and the IPEA ensued, in which Dr Laming expressed his disagreement with the findings of the Audit. On 29 March 2022, Dr Laming put questions to the IPEA on the conduct of the Audit. In an email to Dr Laming on 14 July 2022, the IPEA determined to treat Dr Laming’s email to the IPEA of 8 July 2022 as a request for an internal review of the Ruling pursuant to s 37(6) of the PBR Act. In that email, he described the Audit as “sloppy, opportunistic, and limited to as little inquiry as possible in order to fabricate the desired outcome”. Additionally, Dr Laming referred in particular to “the removal of the following relevant factual material from assessment”:

•    June 12, 2019 non-refundable accommodation bookings indicating satisfactory pre-planning of the Parliamentary address to the Hobart Congress- in IPEA possession, removed from final Audit.

•    June 12 flights to attend the conference- - in IPEA possession via FCM, omitted from final Audit.

•    June 12 registration for the conference- - in IPEA possession, omitted from final Audit.

•    June 12 registration for the Saturday evening event- - in IPEA possession, and confirmed with a single phone call to Conference Partners.

18    Dr Laming also made reference to certain SMS messages between himself and Professor Verma which had not been obtained by the IPEA.

19    On 26 July 2022, the IPEA informed Dr Laming that the internal review had been completed, and that it had concluded that neither the Audit nor the Ruling ignored, omitted or dismissed the information referred to by Dr Laming in his previous emails.

20    Following further correspondence from Dr Laming dated 8 September 2022, referring to what he described as the “failures of the 2021 travel assurance and 2022 audit”, the IPEA informed Dr Laming by email on 14 September 2022 of his right to seek judicial review and advised that he seek independent legal advice. This was the second occasion on which the IPEA had referred to Dr Laming to his right to seek judicial review, the earlier occasion being on 7 July 2022.

21    On 20 September 2022, Dr Laming provided the IPEA with an exchange of text messages between himself and Professor Verma over the period 18 May 2019 to 23 June 2019. On the basis of that new information, the IPEA advised Dr Laming on 6 October 2022 that it had initiated a further independent review of the Ruling pursuant to s 37(5) of the PBR Act. The IPEA also provided Dr Laming with the opportunity to provide any further relevant material evidence by 20 October 2022.

22    Dr Laming provided a six-page response on 7 October 2022.

23    The IPEA’s further review, titled Independent Assessment of Ruling 01/2022, was commenced on 27 October 2022, and concluded that the additional material evidence provided by Dr Laming did not impact upon the findings of the Audit or the Ruling. Dr Laming was advised of the outcome by email dated 28 October 2022 and was again “encouraged to seek independent legal advice in relation to judicial review” pursuant to s 39B of the Judiciary Act 1903 (Cth).

24    Subsequently, Dr Laming made a complaint to the Commonwealth Ombudsman. On 6 December 2022, a Senior Complaints Officer of the office of the Ombudsman informed the IPEA that the Ombudsman’s office had determined that progressing to an investigation of Dr Laming’s complaint “was not warranted” and that as a result, his complaint would be closed.

25    The IPEA commenced debt recovery proceedings in the Magistrates Court of Queensland to recover travel expenses payable by Dr Laming pursuant to the Ruling (M50045/23). A mediation conference was held on 3 July 2023, at which it was agreed:

1.    The defendant [Dr Laming] will pay to the Plaintiff [IPEA] the sum of $20,935.25 within 28 days.

2.    If order 1 is complied with, the parties will consent to dismiss the proceedings.

3.    If order 1 is not complied with, the Plaintiff may apply to enter judgment.

26    On 7 August 2023, Dr Laming made a part payment of $5,000 towards the outstanding debt. In oral submissions, Dr Laming said that he “elected to make a small payment to make it utterly clear that [he] had already… filed … judicial review applications prior to making that payment” because at the time, he was “one month away from seeking pre-selection, which is a year-long process” and “to initiate the debt collection would be very, very damaging on [his] reputation”.

SHOULD AN EXTENSION OF TIME BE GRANTED?

27    The parties were agreed that the Ruling is a decision to which the ADJR Act applies, it being a decision made under s 37 of the PBR Act and therefore a decision made “under an enactment” within the meaning of s 3 of the ADJR Act.

28    The time limit prescribed by the ADJR Act is 28 days from the date the decision was furnished to Dr Laming, pursuant to ss 11(1)(c) and 11(3) of the ADJR Act. The parties were agreed that the application, when commenced on 7 August 2023, was more than 15 months out of time.

29    The factors the Court takes into consideration in deciding whether to extend the time limit under s 11 are uncontroversial: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349; Hamden v Secretary, Department of Human Services [2013] FCA 3 at [35]. They include:

1.    the length of the delay;

2.    the explanation for the delay, including action taken by the applicant other than making an application for review under the ADJR Act (see Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21);

3.    the prejudice to the applicant if an extension of time is not granted;

4.    the prejudice to the respondent and any third parties if an extension of time is granted;

5.    the nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and

6.    the merits of the substantive application.

30    As has already been made plain, the period of delay in this case is substantial. Previous Courts have said that “something very persuasive will be required” to justify an extension for a significant period (for example, beyond a year), albeit in the context of different statutory provisions: Hamden at [36], citing Jess v Scott (1986) 12 FCR 187,195; Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at [16]. Further, as was identified in Hunter Valley at 350, where a case involves public administration, “the public interest may well dictate refusal of an extension after even only a short delay”. This is particularly so when decisions are likely to have some precedential quality for others subject to the same statutory obligations.

31    Dr Laming has not provided any explanation for the delay other to say in his affidavit that “[i]mmediate judicial review would likely have precluded his 2023 party preselection” (Aff-Laming at [27]). Further, at [27], Dr Laming states that, “[a]s a public figure, the Applicant reasonably devoted 2022 to seeking confidential and expeditious solutions like internal review and in 2023 the Commonwealth Ombudsman”. There is no dispute that Dr Laming was made aware of his right to seek judicial review as early as 7 July 2022, prior to the internal review that was completed on 26 July 2022. There is also no dispute that he sought the assistance of the Commonwealth Ombudsman in late 2022. That process was, however, concluded by 6 December 2022. I accept that Dr Laming has provided some explanation for the delay up to this point. Further, it would have been tolerably clear to the IPEA that Dr Laming had not “rested on his rights” and continued to challenge the Ruling: Doyle v Chief of Staff (1982) 42 ALR 283, 287.

32    After 6 December 2022, however, Dr Laming did not engage in any steps to commence judicial review proceedings, having exhausted what he described as other “confidential and expeditious solutions”. Unsurprisingly in those circumstances, the IPEA commenced debt recovery proceedings in the Magistrates Court of Queensland, as it was entitled to do pursuant to s 57(3) of the PBR Act. At this point in time, the IPEA was entitled to take the view that judicial review proceedings would not be commenced: Hunter Valley at 349; Doyle at 287. That view was no doubt reinforced when, after the settlement conference was held on 3 July 2023 at the Cleveland Magistrates Court, Dr Laming and the IPEA reached an agreement, and the parties compromised those proceedings. In fact, Dr Laming had paid $5,000 towards the debt pursuant to that agreement at the time the present proceedings were commenced. In my view, the taking of this course of action by Dr Laming is indicative of a decision by him to abandon any course that would seek to challenge the Ruling by applying for judicial review: Daniel at [14]. This conclusion is consistent with Dr Laming’s explanation that he made a personal decision in his own political interests not to commence judicial review proceedings during the process for his 2023 pre-selection. To the extent that Dr Laming will suffer any prejudice by being precluded now from prosecuting judicial review proceedings, that is the consequence of his own deliberate tactical strategy.

33    The IPEA adduced no evidence as to any prejudice that it would sustain by reason of an extension being granted. I infer, however, that it would be required to incur costs to defend judicial review proceedings, in respect of which it was entitled to have every confidence would not be pursued subsequent to the agreement being reached regarding the debt recovery proceedings in the Magistrates Court. I also infer that it has, of course, also incurred costs in respect of those proceedings, which might otherwise never have been commenced. There is a public interest in not reopening a dispute that the parties have purported to settle: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at [1].

34    In relation to the merits of the application, it is not for the Court to determine that matter at this stage. Rather, it is to consider whether the substantive application is sufficiently arguable to support the granting of an extension of time.

35    Dr Laming has not articulated his grounds for judicial review by reference to the grounds specified in ss 5 or 6 of the ADJR Act. Nevertheless, it emerged in oral submissions that the nature of his complaint was twofold: first, denial of procedural fairness; and second, legal unreasonableness. The first ground fell away somewhat when Dr Laming accepted in his oral submissions in reply that:

There is no doubt that the authority went through every procedural step. Today, what I am appealing is the handling of the information provided to them that led to a ruling. And no matter what information was placed before them in the process, it didn’t arrive at what I believe would be a reasonable decision.

36    The gravamen of Dr Laming’s complaint is the conclusion reached by the IPEA that the dominant purpose of his trip to Hobart was not parliamentary business. He submitted that “the average person would find it to be quite an unreasonable finding”.

37    The test of “unreasonableness” within the meaning of ss 6(1)(e) and 6(2)(g) of the ADJR Act is whether “an exercise of power [is] so unreasonable that no reasonable person could have so exercised the power”: s 6(2)(g) ADJR Act. As was observed by the Full Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [58], the concept of legal unreasonableness concerns the lawful exercise of power. The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory and does not involve the Court in reviewing the merits of the decision (Eden at [59], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 322 at [66]). The Court in Eden said further, at [62]-[63]:

… in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.

… in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute.

(Citations omitted.)

38    In this case, the IPEA’s Ruling was made under the authority of the IPEA Act which, by s 12(i) empowers the IPEA:

(i)    to conduct, or arrange for the conduct of, such audits as the [IPEA] considers appropriate of matters relating to:

(i)    MP travel resources; and

(ii)    MOPS travel resources;

39    Section 4 of the IPEA Act defines “MP travel resource” and “MP work resource” to mean, inter alia:

MP travel resource means:

(a)    a travel expense paid under section 30 of the Parliamentary Business Resources Act 2017; or

(b)    a travel allowance paid under section 31 of that Act; …

…

MP work resource means:

(a)    MP travel resource; or

(b)    an allowance or expense that is payable under section 15 of the Parliamentary Business Resources Act 2017;

…

40    Section 30 of the PBR Act provides that the Commonwealth must pay the travel allowances for a member that are prescribed by the regulations. This statutory obligation is subject to s 26, which sets out the “dominant purpose test” under subsection (1):

(1)    A member must not claim expenses, an allowance or any other public resources under this Part unless the expenses are incurred, or the allowance or resources are claimed, for the dominant purpose of conducting member’s parliamentary business.

41    Section 37 of the PBR Act provides, relevantly, inter alia:

(1) IPEA may give a ruling, in writing, determining that:

(a)     conduct engaged in by a particular member or any other person in relation to travel expenses of, or travel allowances for, the member was or was not in accordance with this Act; and

(b)    as a result of the conduct, the member contravened section 26, 27 or 28.

Note: A ruling may be relied on to determine that a loading is payable under section 38.

(2) Without limiting subsection (1), a ruling may determine that:

(a)     a member’s travel expenses were or were not incurred for the dominant purpose of conducting the member’s parliamentary business; or

(b)     a member’s travel allowance was or was not claimed for the dominant purpose of conducting the member’s parliamentary business; or

        …

    (Emphasis added.)

42    “Parliamentary business” is defined in s 6 of the PBR Act. The definition encompasses four core types: parliamentary duties, electorate duties, party political duties, and official duties.

43    There is no definition of “dominant purpose” in the PBR Act or the IPEA Act. It should be understood according to its ordinary meaning. As Rangiah J recently noted in Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917 at [113], when considering the term as used in the Commonwealth Electoral Act 1918 (Cth):

In Commissioner of Taxation of the Commonwealth of Australia v Spotless Services Ltd (1996) 186 CLR 404, the High Court held at 416, “[i]n its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose”. The “purpose” of conduct is, “the end sought to be accomplished”. There can only be one dominant purpose.

(Emphasis added. Citations omitted).

44    Dr Laming pointed to six “elements”, as he described them, to demonstrate the unreasonableness of the finding that his speech to the conference of ophthalmologists was not for the dominant purpose of parliamentary business and the reason for booking the travel: (1) the inference that he was not invited to the conference and the view taken of his limited participation in the conference; (2) an apparent omission of reference to meeting with Independent Schools Tasmania; (3) the finding that an 800km road trip was not parliamentary based on the excessive use of business resources; (4) the apparent exclusion of evidence provided about boardwalk site visits; (5) the delay in notifying him of the audit process; and (6) the failure to adequately address the loss of data.

45    It is apparent on the face of the Audit that Dr Laming is mistaken as to the alleged omissions. Consequently, Dr Laming’s complaint boils down to one about the weight of evidence and the IPEA’s consequent conclusion as to dominant purpose. The latter is a matter at the discretion of the IPEA. The prospects of Dr Laming establishing that the Ruling has not been made within the proper exercise of the power are poor. I do not consider that Dr Laming’s substantive application is reasonably arguable.

46    Weighing all the matters I have identified in the balance, in particular the length of the delay caused in large part by Dr Laming’s election to avoid commencing judicial review proceedings to the prejudice of his pre-selection, and voluntarily entering into an agreement to repay the amount, which he now maintains, is not owed, I refuse the application for an extension of time.

DISPOSITION

47    For these reasons, Dr Laming’s application for an extension of time should be dismissed. There is no reason why costs should not follow the event.

Associate:    

Dated:        4 March 2024