Dunstan v Holland

REASONS FOR JUDGMENT 1 I have before me two notices of motion. The applicant seeks an order for summary judgment in this matter which he commenced by application filed on 16 July 2008. The respondents seek summary dismissal of that application. The applicant has also raised the possibility of the Court referring him to a legal practitioner on the pro bono panel under O 80 of the Federal Court Rules. 2 It is clear that if the respondents' notice of motion for summary dismissal of the application is successful, then the applicant's notice of motion for summary judgment must fail and in those circumstances, it would not be necessary for me to consider any question arising under O 80. For that reason, as I indicated to the parties at the commencement of the hearing today, I propose to consider the respondents' application first. 3 The respondents seek summary dismissal of the application on the basis that the Court has no power to make the orders sought in the application. Those orders are as follows: 1. In respect to application(1) a declaration that at the time of commencement of this proceeding there has been an unreasonable delay in the failure of the first respondent to make a decision under section 62 "Inquiries into misconduct" of the Public Service Act 1922 (C'th). 2. In respect to application(2) a declaration that at the time of commencement of this proceeding there has been an undue delay in the holding of an inquiry contrary to the procedure required by law under sub-section 62(1) of the Public Service Act 1922 (C'th). 3. That the appeal, action ACD12 of 2008, Dunstan v Orr and Others, set down for hearing on 7 August 2008 be adjourned pending the resolution of this proceeding. 4. Such further orders as the Court deems fit. 4 Clearly order 3 is now moot, as the appeal to which it refers has been dismissed. The respondents submit that the Court has no power to make orders 1 and 2 and by implication, of course, order 4, which refers to orders that would be ancillary to orders 1 and 2. 5 The Court's powers in relation to a failure to make a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are found in ss 16(3)(a)-(c) which are as follows: (3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders: (a) an order directing the making of the decision; (b) an order declaring the rights of the parties in relation to the making of the decision; (c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties. 6 Orders 1 and 2 sought by the applicant are declarations which, as can be seen, do not fall within any of the above subsections. The applicant does not seek a direction that the first respondent make a decision and therefore subsection 16(3)(a) does not apply. Similarly, he does not seek a declaration as to the rights of the parties as provided under subsection 3(b) or any order under subsection 3(c). 7 The only argument that the applicant made in response to the above points which were put by the respondents was to refer to the decision of Finn J in Duncan v Chief Executive Officer, Centrelink [2008] FCA 56. His Honour, at [32], made observations referring to Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 concerning the Court's discretionary power to make declarations and the undesirability of that power being fettered. His Honour recognised, however, that "its exercise is confined by the considerations which mark out the boundaries of judicial power"which, in this case are to be found in s 16. 8 In the alternative, the applicant submitted that order 4 sought in his application is sufficiently wide to allow the Court to make a substantive order directing the first respondent to hold an inquiry under s 62 of the Public Service Act 1922 (Cth) in accordance with her appointment dated 17 October 1997. In making this submission, Mr Dunstan referred to s 11 of the ADJR Act and in particular, to s 11(9) which states: Strict compliance with Federal Court Rules … made for the purposes of this section is not required and substantial compliance is sufficient. 9 This submission, with respect, confuses form and substance. Section 11 is directed to the manner of making applications to the Federal Court or the Federal Magistrates Court. Section 11(9) is designed to avoid fruitless arguments about formalities. That has nothing to do with the substantive question of whether the Court has jurisdiction. The request that the Court make such further orders as it thinks fit can only be interpreted as referring to orders that are ancillary or subsidiary to the substantive orders sought in the proceeding. I do not believe that it would entitle the Court to make a substantive order along the lines sought by Mr Dunstan. 10 The reasons that I have already given are sufficient to find that the application is doomed to fail and therefore is an abuse of process. The respondents also put arguments to the Court along the lines that the present application involves a collateral attack on the decision made by Besanko J in Dunstan v Orr [2008] FCA 31. I am generally in sympathy with those submissions, however it is not necessary for me to rely on those submissions. In my view, the jurisdictional argument deals with the matter and is sufficient to grant the respondents the relief they seek. 11 I should add that even if I were not satisfied on the jurisdictional issue, to the extent that I have a discretion to dismiss the application summarily, I would do so. In the submissions made by the respondents and in their supporting affidavit there is reference to unsatisfied costs orders made against the applicant in amounts exceeding $300,000, and the notoriously long process of litigation involving the same issues. As I am satisfied, for the reasons given by the respondents, that there would be no financial or employment advantage to the applicant, I would, as a matter of discretion, refuse to grant the relief sought. However, I emphasise that my decision is based on the primary argument of the respondents, which is that the Court lacks jurisdiction to make the orders sought by the applicant. 12 For these reasons the respondents' motion is allowed. The application must be dismissed with costs and the applicant's motion for summary judgment must also be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.