Ashby v Commonwealth of Australia

AND: COMMONWEALTH OF AUSTRALIA First Respondent

order made by: KATZMANN, ABRAHAM AND GOODMAN JJ DATE OF ORDER: 12 may 2022

1. Leave to appeal be granted.
2. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 James Ashby worked as a media advisor to the then Speaker of the House of Representatives, the Hon Peter Slipper, between December 2011 and October 2012. In 2012, Mr Ashby sued the Commonwealth of Australia and Mr Slipper alleging sexual harassment and misuse of parliamentary entitlements by Mr Slipper. Before the trial, Mr Ashby reached a settlement of his dispute with the Commonwealth and discontinued the proceeding altogether. More than six years later, Mr Ashby applied to the Minister for Finance (the Minister) 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 legal costs of the proceedings. The amount he sought was $4,537,000. In considering act of grace payments, the powers, functions and duties of the Minister can be delegated to the Secretary of the Department of Finance (the Secretary) who in turn may delegate any of those powers, functions or duties. Mr Ashby's application was considered by a delegate of the Secretary and refused. 2 Mr Ashby applied to the Court for judicial review of the delegate's decision. He also sought relief under the Fair Work Act 2009 (Cth) (FW Act) on the basis that the decision contravened s 340(1) of the Act because it was "adverse action" taken for a prohibited reason, namely, that he had not exercised his "workplace right" to use non-litigious means to seek redress for his grievances against the Commonwealth and Mr Slipper. The primary judge dismissed the judicial review application on 29 January 2021: Ashby v Commonwealth of Australia [2021] FCA 40; (2021) 386 ALR 23 (first judgment). In a separate judgment, his Honour summarily dismissed the FW Act proceeding on 23 July 2021: Ashby v Commonwealth of Australia (No 2) [2021] FCA 830 (second judgment). Mr Ashby has applied for an extension of time and leave to appeal from the first judgment (NSD 799 of 2021) and leave to appeal from the second (NSD 806 of 2021).

Background 3 A detailed history of the proceedings is set out in the first judgment at [5]-[17]. It suffices to note the following matters relevant to the prospective appeal. 4 Mr Ashby was employed to work for Mr Slipper under the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act). In April 2012, he filed his application in this Court against Mr Slipper and the Commonwealth. In October 2012, Mr Ashby executed a deed of settlement with the Commonwealth to resolve his claim against the Commonwealth. As part of that deed, the Commonwealth agreed to pay Mr Ashby $50,000 inclusive of costs, without admission of liability. The parties also agreed to release each other "from all claims" arising out of Mr Ashby's employment with Mr Slipper. 5 On 12 December 2012, Mr Ashby's remaining claims against Mr Slipper were dismissed as an abuse of process: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411; (2012) 209 FCR 65. Mr Ashby was ordered to pay Mr Slipper's costs. This judgment was overturned (by majority) on appeal: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322. But the case did not proceed to trial. Instead, in June 2014, Mr Ashby discontinued his action against Mr Slipper, by which stage his legal costs were evidently enormous, exceeding $4.5 million. 6 Nearly six years later, Mr Ashby applied for the act of grace payment. He claimed that his purpose was to redress an asserted injustice, in part because the Commonwealth had agreed to pay the legal costs incurred by Mr Slipper in the proceedings Mr Ashby brought against him. 7 After receiving submissions from both Mr Ashby and the Minister's Department, a delegate of the Secretary decided not to authorise the act of grace payment. 8 It was common ground before the primary judge that the relevant delegate was the Assistant Secretary of the Risk and Claims Branch, Procurement and Insurance Division, of the Department, whose power to authorise an act of grace payment was capped at $50,000.

Legal framework 9 Section 65 of the PGPA Act provides: 65 Act of grace payments by the Commonwealth (1) 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. Note 1: A payment may be authorised even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability. Note 2: Act of grace payments under this section must be made from money appropriated by the Parliament. Generally, an act of grace payment can be debited against a non-corporate Commonwealth entity's annual appropriation, providing that it relates to some matter that has arisen in the course of the administration of the entity. (2) An authorisation of a payment must be in accordance with any requirements prescribed by the rules. (3) Conditions may be attached to a payment. If a condition is contravened, the payment is recoverable by the Commonwealth as a debt in a court of competent jurisdiction. (4) An authorisation of a payment is not a legislative instrument. 10 Section 107(1) of the PGPA Act gives the Minister the power to delegate, by written instrument, any of the Minister's powers, functions or duties under the Act or the rules to the Secretary, and s 109(1) gives the Secretary the power to delegate, by the same means, any powers, functions or duties under the Act or rules, including the delegation power in s 107(1), to an official of the Department. There are some exceptions, but they are irrelevant for present purposes. 11 The Public Governance, Performance and Accountability (Finance Minister to Finance Secretary) Delegation 2014 (FM-FS Delegation), made under s 107(1) of the PGPA Act, delegates from the Minister to the Secretary the power to "consider all applications for act of grace payment" (cl 7.1(1)). It provides, however, that the Secretary "may not authorise act of grace payments for amounts in excess of $100,000" (cl 7.1(2)). 12 The Public Governance, Performance and Accountability Rules 2014 (Cth) (PGPA Rules) are made pursuant to s 101(1) of the PGPA Act. For the purposes of s 65(2) of the PGPA Act, r 24 of the PGPA Rules provides that, if the Minister "proposes to authorise" an act of grace payment of more than $500,000, the Minister must establish an advisory committee to report on the appropriateness of the authorisation and must consider that report prior to making the authorisation. 13 The Public Governance, Performance and Accountability (Finance Secretary to Finance Officials) Delegation 2020 (No. 1) (FS-FO Delegation) relevantly delegates to the Assistant Secretary, Procurement and Insurance Division of the Department the power to "consider all applications for act of grace payment" (cl 11.1(1)) but not to provide written authorisation for act of grace payments in excess of $50,000 (cl 11.1(2)).

The judicial review application 14 Mr Ashby sought judicial review of the delegate's decision under ss 5 and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 39B of the Judiciary Act 1903 (Cth). 15 For the purposes of this appeal, only ground 4 of the original application is relevant. Mr Ashby alleged that the delegation of authority to decide whether an act of grace payment application should be granted was "flawed", so that the delegate did not have authority to refuse the application. Alternatively, he alleged, an impermissible fetter was placed on the delegate's ability to exercise the discretion either because "the purported grant of power … to 'consider' all applications … did not give the [delegate] jurisdiction to refuse them where the amounts exceeded $50,000 or $100,000" or because "the purported effect of the delegation was to authorise the approval of applications for amounts up to the relevant figure and to refuse applications for amounts in excess of it". In the result, he contended, the delegation was ineffective because the power conferred by s 65(1) was not divisible in this way or because it impermissibly fettered the delegate's discretion. 16 In essence, Mr Ashby's argument was that s 65 of the PGPA Act could not bestow a power on a delegate only to refuse an application for an act of grace payment and not to grant it. He contended that the power to refuse an application could only be exercised by the person who had the power to grant it. Thus, since the delegate had the power to refuse all applications but was not authorised under the FM-FS Delegation to approve an application of more than $50,000, the delegation was beyond power.

The first judgment 17 His Honour found that this construction of the FM-FS Delegation was both impractical and improbable as it would mean that the Minister or Secretary would have to consider all act of grace applications over $100,000 irrespective of merit (at [45]). Rather, his Honour held that the plain words of s 65(1) of the PGPA Act contemplated two separate steps: first, considering whether it is appropriate to make the payment and if not to refuse to do so, and second, if satisfied that payment is appropriate, deciding whether to authorise the payment (at [47]). Both steps did not need to be performed by the same delegate and it was apparent that the second step could only be carried out by someone with authorisation to approve payments over $100,000 (at [50]).

The application for summary judgment 18 The Commonwealth and the Minister (the respondents) applied for summary judgment of Mr Ashby's remaining matter, namely that the delegate's refusal decision amounted to "adverse action" under the FW Act. The application rested on the terms of s 342(3)(a) of that Act which provides that "adverse action" does not include action that is authorised by or under the FW Act or any other law of the Commonwealth. For the purpose of the respondents' application only, the primary judge assumed in Mr Ashby's favour that the delegate's conduct constituted "adverse action" within the meaning of s 342(1) of the FW Act.

The second judgment 19 The primary judge agreed with the respondents' submission that s 65(1) of the PGPA Act conferred a broad discretionary power on the Minister to make or not make an act of grace payment without any express or implied limitation on what could be taken into account (at [29]-[30]). His Honour noted that the delegate had refused Mr Ashby's application because he was not satisfied that there were any special circumstances justifying the payment, particularly because Mr Ashby elected not to pursue alternative, less costly options rather than commencing court proceedings, some of which could be characterised as "workplace rights" (at [30]). His Honour was therefore satisfied that s 65(1) gave express legal authority to take the impugned action of refusing the act of grace payment application and there was no proper reason to read down the discretion (at [31]). 20 Thus, his Honour was satisfied that the delegate's decision was authorised by law and was covered by the exception in s 342(3). His Honour therefore concluded that Mr Ashby had no reasonable prospect of successfully prosecuting the balance of his proceeding and summarily dismissed the application (at [32]).

The application for extension of time and leave to appeal 21 Mr Ashby applied for an extension of time and leave to appeal from the first judgment, and for leave to appeal from the second judgment. He did not concede that either an extension or leave to appeal were required, but applied out of an abundance of caution. He contended that a "substantial injustice" would be caused if leave were not granted and that both judgments of the primary judge were attended by significant doubt to justify the grant of leave. In addition, he argued that the appeal from the second judgment involved "an important question" as to the scope of the exception in s 342(3) of the FW Act. 22 The respondents did not oppose the grant of an extension of time and leave to appeal. There is some doubt about whether an extension of time is required but there is no doubt that leave is required to appeal both judgments. That is because both judgments are interlocutory judgments and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) prohibits the bringing of an appeal from an interlocutory judgment of the Court unless leave is granted. 23 The test for whether a judgment is interlocutory, as opposed to final, is whether the judgment finally determines the rights between the parties, having regard to the legal rather than practical effect of the decision: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ). 24 Any doubt about whether the second judgment was interlocutory is put to rest by s 24(1D) which relevantly provides that a decision to grant summary judgment is taken to be an interlocutory judgment for the purpose of s 24(1A). 25 As for the first judgment, the position in the present case is relevantly indistinguishable from the position in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 in which Gibbs CJ, Murphy and Wilson JJ observed at 767-768: What is plain is that the judgment of that Court comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. The question then is whether a judgment of that kind is a final judgment within the meaning of s.33(4) of the Federal Court of Australia Act, and s.35(3) of the Judiciary Act as they stood at the material time. The test for determining whether a judgment is final, which has been laid down in a number of cases including Carr v. Finance Corporation of Australia Ltd. (No. 1) (1981) 147 CLR 246, is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable … 26 The primary judge heard the conventional judicial review grounds first because he considered that would be more efficient since, had Mr Ashby succeeded, it would have obviated the need to consider the grounds under the FW Act. It is plain, therefore, that the judgment on the judicial review grounds did not finally determine Mr Ashby's originating application. It follows that the first judgment was also interlocutory and leave to appeal is required. 27 We propose to grant Mr Ashby an extension of time to seek leave to appeal from the first judgment on the assumption that an extension is required, and to grant leave to appeal both judgments. The draft notices of appeal will stand as the notices of appeal. For the following reasons, however, we would dismiss the appeals.

The appeals 28 The first draft notice of appeal contained the following single ground (first ground): The primary judge erred by concluding that the delegate had sufficient jurisdiction to make the Decision. This conclusion is at Paragraphs [40] - [52] of the written reasons dated 29 January 2021. The primary judge should have concluded the delegate did not have jurisdiction, or alternatively that an impermissible fetter was placed on that jurisdiction. 29 The second draft notice of appeal contained the following single ground (second ground): The primary judge erred by granting summary judgment in respect of the balance of the claims advanced by the Appellant. Section 65 of Public Governance, Performance and Accountability Act 2013 does not authorise the refusal of an Act of Grace Payment because the applicant has exercised a workplace right, or failed to exercise a workplace right. The Appellant had reasonable prospects of prosecuting the case. 30 It follows that the appeals raise two questions: (1) Did the primary judge err in his interpretation of the scope of the delegate's authority? (2) Did the primary judge err in concluding that the refusal of an act of grace application under s 65 of the PGPA Act was authorised by that Act notwithstanding that Mr Ashby had exercised or failed to exercise a workplace right?

Did the primary judge err in his interpretation of the scope of the delegate's authority (first ground)? 31 Mr Ashby's submission on this issue was properly characterised by the primary judge at [44], as resting entirely on a single argument: that s 65(1) creates one function not two, and accordingly, because the delegate was authorised to consider the application but not authorised to refuse it, as part of a single discretion, both the delegate's decision and the FS-FO Delegation are legally bad. The primary judge rejected that contention. Mr Ashby has not established any error in the primary judge's reasoning or conclusion. For the reasons given by the primary judge at [45]-[51], the appellant's submission as to the construction of s 65 cannot be accepted. 32 Mr Ashby did not direct attention to error in the reasoning of the primary judge (with very limited exception), but rather sought to reargue the case there presented. Yet the appeal in each matter is in the nature of a rehearing. A rehearing is not a new hearing in which the opinions and conclusions of the primary judge are put to one side and the case is reargued. Error must be shown: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[22]; [28]-[30] (Allsop J, Drummond and Mansfield JJ agreeing). It follows that, absent error on the part of the primary judge, the appeals must fail. 33 It is sufficient in this context to make these additional observations. 34 First, Mr Ashby's submission, that the primary judge's characterisation of the issue at [44] fails to recognise that his argument as to the meaning of the term "consider" does not require a determination of whether two functions are conferred by s 65(1), is artificial. The primary judge's characterisation is intimately entwined in the construction of the provision. The description of the issue in [44] necessarily encompasses what Mr Ashby submits is a separate argument in relation to the word "consider". Mr Ashby does not suggest that the primary judge has in any way fallen into error in the description or that he failed to consider the argument. In any event, contrary to Mr Ashby's submission, there is no strained construction involved in reading "consider", in relation to an application for an act of grace payment, to embrace evaluation of that application. Rather, that is precisely what the statute requires. If, after that consideration process, the decision is that it is not appropriate to make a payment, the second stage of the process is not reached. The application is necessarily refused as a result of the consideration in the first stage. 35 Second, Mr Ashby's submission that the primary judge required evidence of the practicalities of decision making, the number or complexity of applications under s 65 of the PGPA Act, and the "suggested intent" of the instrument of delegation, cannot be accepted. As the respondents submitted, discerning intent is a legal, not evidentiary, exercise. The search for practical consequences and the avoidance of arbitrary consequences is an everyday feature of statutory construction: see, for example, Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, 304-305, 320-322. 36 Third, Mr Ashby's submission that the primary judge at [50] impermissibly construed a superordinate statutory provision, s 65(1), using an instrument of delegation, the Public Governance, Performance and Accountability (Finance Secretary to Finance Officials) Delegation 2020 (No 1) (22 January 2020), is not open on a proper reading of the judgment. 37 Fourth, Mr Ashby's submission is underpinned by the proposition that statutory functions are indivisible and, in particular, that it is not possible to delegate the power to refuse an administrative application of a certain type without also delegating the power to grant an application of the same type, citing, inter alia, Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397 at 402; Belmorgan Property v GPT [2007] NSWCA 171; (2007) 153 LGERA 450; Singh v Castello [1990] FCA 233 at [32]-[33]; KEPCO Bylong Australia v Bylong Valley Protection [2021] NSWCA 216 at [28]; and Bankstown City Council v Zraika [2016] NSWCA 51; (2016) 94 NSWLR 159 at [94] (the last three of which were not drawn to the attention of the primary judge). Mr Ashby relies on these authorities to assert a general and blanket proposition against the indivisibility of a statutory function. However, those authorities do not address the antecedent issue of the construction of s 65(1). Rather, as is plain from a proper consideration of those authorities, each involves the statutory construction of the particular provision(s) in issue. As the primary judge correctly concluded at [48], those authorities (including the additional three relied upon in this appeal) are distinguishable as they concern very different statutory regimes that provide for powers cast in terms that do not permit the binary nature of grant or refusal to be split. 38 Finally, and in the context of Mr Ashby's submission referred to in the preceding paragraph, as the primary judge concluded, it is permissible, and routine, to delegate steps within a decision-making process, such as an evaluative function, and to separate that function from an ultimate decision-making power: at [46], and for example, the cases cited therein, Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 212-214, 217, 219, 223-224, 225-226; Fisk v Chief of Defence Force (No 2) [2017] FCA 1490 at [32] (Perry J). 39 The first ground is not established.

Did the primary judge err in concluding that the refusal of an act of grace application under s 65 of the PGPA Act was authorised by the Act (second ground)? 40 Section 342(3)(a) of the FW Act relevantly provides that "adverse action" does not include action that is "authorised by or under … [a] law of the Commonwealth". The respondents contend that s 65 of the PGPA Act is such a law. Mr Ashby disputes this contention. The manner in which Mr Ashby advanced his case below was summarised by the primary judge at [23]-[24] of his reasons: [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. 41 The primary judge rejected Mr Ashby's propositions at [29]-[31]. Mr Ashby has not established any error in that reasoning process. For the reasons given by the primary judge, the propositions were correctly rejected. 42 A number of points are to be made to address matters which were said to reflect error. 43 First, the issue in the second ground arose for consideration in the context of the Commonwealth's application for summary dismissal. Mr Ashby submitted that there was little or no evidence on the summary judgment application that sought to flesh out what actually happened, and that the primary judge needed to take into account that the court did not know, and should have hypothesised, the gravity of the adverse action that might ultimately be shown. The submission is flawed. The determination of the application was by resolution of a legal dispute, not a factual one. It was assumed for the purposes of the application that Mr Ashby could establish all of the facts to make out his cause of action at trial. The application turned on matters of statutory construction. That is, whether the exception in s 342(3)(a) of the FW Act 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. This approach is orthodox. 44 Second, and in the same context, Mr Ashby's submission is inconsistent with the conduct of the proceedings before the primary judge. The application proceeded ultimately on an agreed factual basis 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: at [17]. 45 Third, it follows that Mr Ashby's submission that the primary judge could not grant summary judgment absent either evidence "flesh[ing] out what actually happened" or some further assumptions about the adverse action is entirely misconceived. In this context we note that Mr Ashby's contention that it is not possible to reduce the "adverse action" to simply the rejection of Mr Ashby's application under s 65 is also inconsistent with the manner in which his case had been advanced. The concise statement filed by him states: The decision to refuse the act of grace application was adverse action per 342 because it altered the position of Mr Ashby to his prejudice, or alternatively, because it injured him in his employment. 46 Even leaving aside that the application proceeded on an agreed factual basis, Mr Ashby could not articulate a proper basis as to how the factual findings he contended for were necessary, or even relevant. Whether, as a matter of law, the exception in s 342(3)(a) of the FW Act applies to a decision made under s 65 of the PGPA Act is a matter of statutory construction, and therefore is not dependent on the seriousness of the conduct founding the purported adverse action. 47 Fourth, Mr Ashby's contention that the primary judge's conclusion at [31] is insufficient to resolve the application is based on a misreading of the reasons. The statement that "this authorisation extended to taking into account considerations that might (but not necessarily would) otherwise be characterised as adverse action" reserves the question of whether the assumptions drawn (i.e. that the decision constituted an injury or prejudice for the purposes of s 342(1)) were ultimately available conclusions at trial. 48 Fifth, Mr Ashby's contention that the primary judge erred in declining to read down the discretion in s 65(1) in the manner he proposed, for the reasons given by the primary judge, is incorrect. There is nothing within the jurisdiction conferred by s 65(1) that requires the Minister's discretion to be subject to constraints under the FW Act. Mr Ashby's complaint, that contrary to [31], the PGPA Act contains "ample warrant for a requirement that public officials adhere to other Commonwealth laws in the course of going about their duties and when making decisions under provisions such as s 65", does not advance his argument. As the respondents contended, to say that there is such a limitation, discerned from the proposition that Commonwealth employees must obey the law, involves circular reasoning which assumes the correctness of Mr Ashby's construction argument. Put simply, s 342(1) of the FW Act defines what constitutes "adverse action", and s 342(3) excludes from that definition action authorised by or under statute. Commonwealth officials obey the law, and the FW Act, when exercising power authorised by or under statute. 49 Finally, Mr Ashby's reliance on two hypothetical scenarios to illustrate what he contended were unattractive practical consequences of the primary judge's conclusion does not advance his case. As the respondents submitted, the examples are hypotheticals that should not control the construction question for s 65(1), and were advanced at such a high level of generality as to be unhelpful. The scenarios must be considered, as the respondents submitted, in the light of the wide spectrum of Commonwealth employment, the full suite of relevant legislation, and the availability of judicial review proceedings which may impact on scenarios. Submissions were made which illustrated, once that analysis had been done, that the scenarios postulated do not have the significance for which Mr Ashby contended. 50 This ground is not established.

Conclusion 51 In summary, there is no merit in either ground of appeal. The primary judge was correct for the reasons that his Honour gave. The appeal should be dismissed with costs. There will be orders accordingly. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Abraham and Goodman.