Ghanem v Australian Research Council

Federal Court of Australia|2015-05-08|Before: Mr J, Foster J

REASONS FOR JUDGMENT 1 The applicant, Associate Professor Dr Ashraf Ghanem, is an academic biomedical scientist employed by the University of Canberra (UCAN) in its Faculty of Applied Science. He is also affiliated with one of the emerging research centres funded by UCAN. Dr Ghanem's specialty concerns the investigation of chiral catalysis and chiral chromatography. 2 On 20 February 2013, UCAN lodged two applications with the Australian Research Council (ARC) for substantial funding for a four year period under the Future Fellowships scheme for 2013. One of UCAN's applications was Future Fellowship Proposal FT130100026 titled "Integrated Microsystems for Chiral Doping Drug Testing in Sports" in which Dr Ghanem was listed as the Chief Investigator and Future Fellow candidate (Dr Ghanem's 2013 funding proposal). The total amount of funding sought in respect of Dr Ghanem's 2013 funding proposal was $854,800. UCAN was an Eligible Organisation within the meaning of the Future Fellowships Funding Rules for funding commencing in 2013 (the 2013 Funding Rules). Those rules had been approved by the relevant Minister on 3 December 2012 under s 60 of the Australian Research Council Act 2001 (Cth) (ARC Act). 3 The Future Fellowships scheme provides funding to Administering Organisations in order to support research. An Administering Organisation under that scheme is an Eligible Organisation (such as UCAN) which submits a proposal for funding and which will be responsible for the administration of the funding if the proposal or project is approved. 4 After being assessed in accordance with the 2013 Funding Rules, Dr Ghanem's 2013 funding proposal was not approved by the relevant Commonwealth Minister (the Minister for Education) (the Minister) for funding in the Future Fellowship round for 2013. By letter dated 8 November 2013, UCAN was notified that Dr Ghanem's 2013 funding proposal had not been approved. The Minister announced publicly the outcomes of the 2013 Future Fellowships funding round on the same day viz 8 November 2013. 5 By Originating Application for Judicial Review filed on 5 December 2013, Dr Ghanem commenced this proceeding. He is the sole applicant. UCAN is not a party. On 18 February 2014, he filed an Amended Originating Application for Judicial Review. By that Amended Application, Dr Ghanem challenged two decisions: (a) A decision by the CEO of the ARC to make a recommendation to the Minister not to award a 2013 ARC Future Fellowship to Dr Ghanem; and (b) A decision by the Minister made on 8 November 2013 not to award a 2013 Future Fellowship to Dr Ghanem. 6 The ARC and the Minister are the respondents in this proceeding. 7 The relief sought by Dr Ghanem in his Amended Originating Application was in the following terms: Orders sought 1. To put aside the decision made by the Minister not to Award the Applicant a Future Fellowship. 2. A declaration that the rights of the Applicant were adversely affected by the actions of the Respondents; 3. An order requiring the Respondents to provide justification/reasons why the score of the Applicant's application for future fellowship was dumped down. These will assist to the Applicant to understand how the decision was made and how to improve his applications in future rounds. 4. To put aside any assessment given without justification/reasons and reassess the proposal based on merits or reconsider the proposal in the current 2014 (last round). 5. Costs. 6. Any other order that the Court considers appropriate. [Emphasis in original] 8 The grounds and arguments advanced by Dr Ghanem in his Amended Originating Application as justifying the claims for relief which I have extracted at [7] above were confusing and rather difficult to understand. They included very serious allegations of impropriety and bad faith made against several persons involved in the assessment of Dr Ghanem's 2013 funding proposal. It is not necessary to discuss those grounds and arguments in any detail. 9 By an Interlocutory Application filed on 4 March 2014, the ARC and the Minister applied for an order summarily dismissing the whole of this proceeding and an order for costs. The respondents relied upon s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01 of the Federal Court Rules 2011 (FCR). 10 By a judgment delivered on 13 May 2014 (Ghanem v Australian Research Council [2014] FCA 473 (Ghanem No 1)), I made an order summarily dismissing the whole of this proceeding. I also made an order that Dr Ghanem pay the respondents' costs of and incidental to this proceeding as taxed or agreed. 11 Dr Ghanem then sought the leave of the Full Court to appeal from the orders which I had made on 13 May 2014. 12 On 7 October 2014, the Full Court granted leave to appeal from my decision in part and allowed the appeal in respect of that part (Ghanem v Australian Research Council [2014] FCAFC 132 (Ghanem No 2)). The precise orders made by the Full Court on 7 October 2014 were: THE COURT ORDERS THAT: 1. Subject to order 2, the application for leave to appeal be dismissed. 2. The application for leave to appeal be granted in respect of that part of ground 1 of the amended originating application for judicial review which states "[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning". 3. The appeal be allowed. 4. The orders of 13 May 2014 be set aside and in lieu thereof the following orders be made: (1) Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), all claims in the proceeding be summarily dismissed other than that part of ground 1 of the amended originating application for judicial review which states "[a]llowing the Applicant to apply for a third time is in disagreement with the law. According to funding rule 9.1.2…under ARC Act sec 59 and 60, the Applicant was ineligible to apply for future fellowship 2013 round and his application should not have been considered from the beginning". (2) Costs be reserved. 5. The matter be remitted to the docket judge for directions in relation to and hearing of that part of the amended originating application for judicial review set out in order 2 above. 6. The respondents pay the costs of the applicant/appellant in respect of the application for leave and the appeal, as agreed or taxed. 13 It appears from [16] of the Reasons for Judgment of the Full Court that the Full Court considered that, after a final hearing, the Court might have made a declaration to the effect that UCAN's application for funding to the extent that it included Dr Ghanem's 2013 funding proposal was invalid and null and void from the outset for the reason that it was made by UCAN and accepted by the ARC in breach of cl 9.1.2 of the 2013 Funding Rules because Dr Ghanem was not eligible to submit a Future Fellowships proposal for the 2013 round given that he had also submitted two earlier funding proposals in the period between 1 January 2009 and late 2013, namely in 2009 and in 2010. Subclause 9.1.2 provided that a particular Future Fellowship candidate may not submit more than two Future Fellowships proposals in the funding rounds between 2009 and 2013. The Full Court said that, if Dr Ghanem's 2013 funding proposal was a nullity, he would be eligible to make a further application in the 2015 round. 14 Dr Ghanem had not claimed relief in those terms in his Amended Originating Application. Before me, he had submitted in argument that he was not eligible to lodge his 2013 funding proposal because he had already lodged two such proposals in the period 2009-2013 but he had not claimed a declaration that he was ineligible to apply nor had he sought a declaration that his proposal was invalid (or void or of no effect). He had confined this eligibility point to his attack upon the two decisions to which I have referred at [5] above. That was the only relevance of the point when the matter was litigated before me. Before me, the only final relief sought by Dr Ghanem was the relief claimed by him in his Amended Originating Application. I have extracted those claims for relief at [7] above. According to those claims, Dr Ghanem wanted to have the two challenged decisions set aside so that he could somehow enter the 2014 funding round. Before me, Dr Ghanem made no mention of the 2015 funding round nor did he mention any later funding round. 15 The position remained as I have described it when the application for leave to appeal and the appeal were heard and determined by the Full Court. Dr Ghanem did not seek the leave of the Full Court to raise his new claims for declaratory relief and no such leave was given by the Full Court. Nonetheless, it appears that the Full Court informally permitted Dr Ghanem to raise new claims for declaratory relief based upon arguments not put before me. 16 For the reasons which I have explained at [14] and [15] above, when the matter was remitted to me, it was necessary for Dr Ghanem to apply for leave to amend his Amended Originating Application in order properly to raise the new claims for declaratory relief which the Full Court had suggested it might be open to him to make. 17 Among the orders which I made during a Directions Hearing held on 10 October 2014 were the following orders, namely: THE COURT: 1. ORDERS that leave be granted to the applicant to amend his Amended Originating Application for Judicial Review filed on 18 February 2014 by including therein two (2) new additional claims for relief in the following terms: 4A. A declaration that the applicant was ineligible to apply for Future Fellowship Round 2013. 4B. A declaration that the applicant's application for a research grant in Future Fellowship Round 2013 was invalid for the reason that he was not eligible to apply for such a grant, such Further Amended Originating Application to be filed and served by 13 October 2014. 2. ORDERS that, in light of the decision of the Full Court in Ghanem v Australian Research Council [2014] FCAFC 132, the applicant excise from his Further Amended Originating Application all material except: (a) His new claims for the declaratory relief specified in Order 1 above; (b) His claim for costs; (c) The text at the top of p 2 of his existing Amended Originating Application for Judicial Review down to and including par 3 on that page; and (d) Any matter which properly should be included in the Further Amended Originating Application for Judicial Review as constituting the applicant's specification of the ground or grounds of review relied upon by him as supporting the declaratory relief now claimed and a succinct statement of the basis upon which the applicant contends that he is entitled to that declaratory relief. 18 On 13 October 2014, Dr Ghanem filed a Further Amended Originating Application for Judicial Review purportedly in compliance with the Orders which I had made on 10 October 2014. 19 I considered that Declarations 1 and 5 sought by Dr Ghanem in his Further Amended Originating Application went outside the leave granted to him on 10 October 2014. For that reason, by Order made on 13 October 2014, I struck out pars 1 and 5 of the claims for relief set out on p 13 of his Further Amended Originating Application. Declarations 4A and 4B included by him in that document seemed to me adequately to cover the point which the Full Court had thought might justify a final hearing. 20 The matter remitted to me by the Full Court on 7 October 2014 was heard by me on 27 November 2014. 21 By these Reasons for Judgment, I determine the claims for relief made by Dr Ghanem in his Further Amended Originating Application filed on 13 October 2014 (other than the claims made in pars 1 and 5 thereof which, as I have said, were struck out).

The Judgment of the Full Court in Ghanem No 2 and the Remitter 22 In the Full Court, Dr Ghanem sought to challenge the whole of my decision in Ghanem No 1. However, as I have already mentioned, the Full Court granted leave to appeal in respect of only part of ground 1 set out in his Amended Originating Application. It then allowed that appeal. 23 At [1] of its Reasons for Judgment, the Full Court observed that, in its view, there had been buried within a number of baseless allegations in Dr Ghanem's Amended Originating Application an arguable claim which should have been heard and determined on its merits and not summarily dismissed, notwithstanding that the claim had not been clearly articulated and had not been linked at all to any of the relief sought. The Full Court went on to explain these remarks in more detail at [19] of its Reasons. In that paragraph, the Full Court said that "… Dr Ghanem's first claim [referring to that part of ground 1 in Dr Ghanem's Amended Originating Application which is described in Order 2 made by the Full Court] is reasonably capable of being read as including a challenge to the validity of his own application". But Dr Ghanem had never sought any declaration or order declaring that his 2013 funding proposal was invalid. His contention that he was not eligible to be put forward in UCAN's proposal as the Future Fellow candidate had only ever been advanced as a ground for setting aside the two decisions under challenge, not as a basis for separate declaratory relief. 24 At [5], [8] and [9] of its Reasons, the Full Court inferred that question 6 of the questions of law sought to be raised by Dr Ghanem on appeal related to the same issue of eligibility which had been raised by Dr Ghanem as part of ground 1 in his Amended Originating Application. 25 At [11]-[13], of its Reasons the Full Court set out in full [28], [55]-[60] and [74]-[76] of my Reasons in Ghanem No 1. At [58]-[60] of Ghanem No 1, I said: 58 However, in light of Dr Ghanem's assertion to the effect that, at the time when he settled the 2012 proceeding brought by him, he was assured that the ARC would not treat any funding proposal submitted by him for the 2013 round as invalid merely because of the circumstance that he did not satisfy the eligibility criterion embodied in cl 9.1.2 of the Funding Rules, I have a concern that the ARC may have effectively waived compliance with that clause or otherwise exempted Dr Ghanem from the consequences of his not satisfying the requirements of that clause even though, at the moment, there is no evidence before me proving either of those matters. The ARC did process Dr Ghanem's proposal and it is likely that, one way or another, it took steps to ensure that there was no ongoing difficulty with his eligibility for the 2013 round. 59 The respondents' advocate submitted that I did not have to decide the question of whether Dr Ghanem was, in fact, eligible to be considered for a Future Fellowship in the 2013 round. He submitted that, if Dr Ghanem was not eligible, his whole case is frivolous and is bound to fail because it would not be open to the Court to grant any meaningful relief to Dr Ghanem. He also submitted that if, in truth, Dr Ghanem was eligible to be considered for such a Fellowship in the 2013 round, then the first ground of judicial review raised by Dr Ghanem in the present proceeding must necessarily fail with the consequence that the Court would then be required to move to consider Dr Ghanem's second and third grounds. Either way, so it was submitted, Dr Ghanem's application for judicial review in the present proceeding is self-defeating. 60 I accept the submissions advanced on behalf of the respondents. They are sound. Against the possibility that, in truth, Dr Ghanem was eligible for consideration for a Future Fellowship in the 2013 round, I will therefore now move to consider grounds 2 and 3 raised by him. 26 At [74]-[76] of Ghanem No 1, I said: 74 Dr Ghanem seeks a reconsideration of his 2013 funding proposal in the 2014 round. He does not seek to secure a reconsideration of that proposal in the 2013 round. No doubt this is because such a reconsideration would now prove to be impossible. In my view, there is no real prospect that the Court would consider ordering such a reconsideration in the 2014 round. 75 The 2014 round is an entirely separate process into which Dr Ghanem has not entered. The Court does not have the power to order that his 2013 proposal stand as a separate and fresh application in the 2014 round. 76 In addition, even if Dr Ghanem was eligible to be considered for a Future Fellowship in the 2013 round, an order setting aside the Minister's decision not to fund his proposal takes the matter nowhere. As matters presently stand, the Minister did not approve funding for his proposal. An order setting aside that decision would leave Dr Ghanem with no decision, one way or the other, and no order compelling the Minister to reconsider his decision. 27 At [14]-[16] of its Reasons in Ghanem No 2, the Full Court said: 14 These conclusions [referring to [74]-[76] of Ghanem No 1] reflect the respondents' submissions that Dr Ghanem's challenges to the validity of the decision refusing funding to to [sic] his 2013 proposal were unfounded and that his first claim, that the 2013 proposal "should not have been considered from the beginning", was "self-defeating" because it could not be the subject of any "meaningful relief". 15 It is apparent that the respondents' submissions, accepted by the primary judge, assume that Dr Ghanem was challenging only the validity of the decision to refuse funding to his 2013 proposal. This assumption, it should be said, is consistent with the orders sought in the amended originating application, paragraph 1 of which seeks an order: To put aside the decision made by the Minister not to award the Applicant a Future Fellowship. 16 There is, however, another way of construing Dr Ghanem's amended originating application or, at the least, the relevant part of ground 1. In claiming that the 2013 proposal "should not have been considered from the beginning", Dr Ghanem could be taken to have been challenging not only the validity of the decision to refuse him funding, but also the validity of his own application. If construed in the latter way, the respondents' argument that this claim was "self-defeating" and could not be the subject of any "meaningful relief" would be incorrect. In short, if Dr Ghanem's 2013 proposal is itself invalid then relief could be granted in the form of a declaration to the effect that the application was null and void from the outset. Moreover, such a declaration may have utility depending on the funding rules as approved by the Minister in future. For example, on the assumption that the 2015 funding rules contain an equivalent rule to r 9.1.2 permitting only two applications to be made in the prescribed period it would follow, if Dr Ghanem's 2013 proposal was valid, that he would have applied in both 2010 and 2013 and thereby be precluded from applying for funding for 2015. On the other hand, if Dr Ghanem's 2013 proposal was invalid and a nullity, then he would have made only one application in the previous five years, being that made in 2010, and thus would be eligible to make a further application for funding for 2015. 28 The essence of the Full Court's reasoning is found at [16] of the Court's Reasons. In that paragraph, the Full Court reasoned as follows: (a) It was possible to construe the relevant part of ground 1 specified in Dr Ghanem's Amended Originating Application as a challenge not only to the validity of the decision to refuse him funding but also as a challenge to the validity of his own application for funding made in the 2013 round; (b) If Dr Ghanem's ground 1 were construed in this way, his claim was not self-defeating and could be the subject of meaningful relief; (c) If Dr Ghanem was not eligible to be involved in his 2013 funding proposal, that proposal was invalid (and null and void) from the outset with the consequence that a declaration to that effect could conceivably be granted after a final hearing; and (d) Such a declaration may have utility, depending upon the form of the Future Fellowships Funding Rules approved by the Minister in the future, whether for the 2015 funding round or for some later round or rounds. 29 Consistent with the observations made at [1] of its Reasons, at [19], the Full Court said that s 31A of the FCA should not be invoked merely because a cause of action is inadequately pleaded. That section should only be invoked in circumstances where the inadequate pleading discloses that there is no reasonable cause of action. (I interpolate here that I did not summarily dismiss Dr Ghanem's claims because they had been inadequately pleaded. Rather, I did so because I considered that they had no reasonable prospects of success.) 30 At [21] of its Reasons, the Full Court said that the respondents' arguments that Dr Ghanem had waived compliance by the ARC with the 2013 Funding Rules and/or acquiesced in the ARC considering his 2013 funding proposal had not been explored before me. The Full Court said that those arguments were "fact dependent" and, apart from the terms of the Deed of Settlement mentioned by Dr Ghanem, "remained unknown". These observations related to [28] of my Reasons in Ghanem No 1 where I said: Dr Ghanem had submitted two Future Fellowships proposals, one in 2009 and another in 2010. His 2013 proposal was, therefore, his third proposal in the funding rounds between 2009 and 2013. For this reason, it appeared to me that Dr Ghanem did not satisfy the eligibility criteria laid down in the 2013 Funding Rules. However, Dr Ghanem told me that, as a term of the settlement of the 2012 judicial review proceeding brought by him in respect of the 2009 and 2010 funding proposals submitted by him, he was given an assurance by the ARC that the CEO of the ARC and the Minister would not treat any 2013 funding proposal submitted by him as invalid by reason only of the fact that it would be his third proposal submitted in the years 2009-2013. The legal significance of his having been given such an assurance was not explored before me. 31 It is true that the arrangements made between Dr Ghanem and the ARC reflected in the Deed by which his 2012 proceeding had been resolved and the circumstances in which those arrangements were made were not explored before me. Indeed, neither Dr Ghanem nor the respondents tendered the Deed in evidence before me nor did either party endeavour to adduce any other evidence directed to the circumstances in which Dr Ghanem's 2012 proceeding had been resolved. 32 At [22] of its Reasons, the Full Court repeated its conclusion that Dr Ghanem ought to be permitted to take to trial his argument that he might be able to procure a declaration to the effect that his 2013 funding proposal was invalid and a nullity which, should he succeed in convincing the Court that it should make such a declaration, might have utility because it would allow him to make an application for funding for the 2015 round which he might not otherwise have been able to make. The Full Court accepted that this potential utility depended upon the form of the Rules as approved by the Minister for the 2015 year and that the form of those Rules was not yet known. Nonetheless, the Court concluded that that … "potential utility is sufficient to make the matter inappropriate for summary dismissal". The Full Court confined its consideration of the question of utility to the 2015 round. 33 At [23] ff, the Full Court considered and rejected Dr Ghanem's challenges to the remaining parts of my decision in Ghanem No 1. 34 Finally, at [32], the Full Court said: The only other matter which warrants further comment is that these reasons for judgment have been prepared and published expeditiously on the basis, as we understand it, that it is now possible for prospective applicants to submit a funding application for the 2015 funding year. Dr Ghanem's capacity to submit such an application, which founds the potential utility of his claim that the 2013 proposal is a nullity, depends on the outcome of this application for leave and the appeal, as well as the timely resolution of the remaining substantive claim in the proceeding below. 35 As at the date of the hearing before the Full Court and as at the date of the judgment of the Full Court, it was not possible for applicants for Future Fellowships scheme funding in the 2015 round to submit an application. The 2015 Funding Rules were not then known. 36 Nonetheless, on 10 October 2014, in conformity with the observations made by the Full Court at [32], I fixed the final hearing of Dr Ghanem's remaining claims for relief for 27 November 2014. As at that date, the form of the 2015 Funding Rules was not yet known.

Dr Ghanem's Further Amended Originating Application Filed on 13 October 2014 37 On p 2 of Dr Ghanem's Further Amended Originating Application, he specifies the decisions of the respondents which he seeks to challenge in the following way: 1. The CEO of the Australian Research Council (ARC) to make a recommendation to the Minister of Education not to award the Applicant a Future Fellowship in 2013 (FT130100026) as the application was void from the outset; 2. The Minister of Education to make a decision (dated 08 November 2013) not to award the Applicant a future fellowship as the application was void from the outset; 3. The decision by the Respondents to consider a void application for funding submitted by the Applicant's (FT130100026) in contrary to the funding rule/law. 4. The Minister to make a decision that should not have been made as the Application the Applicant submitted for future fellowship of the 2013 round was null and void, does not exist, and consequently the decision of the Minster to refuse granting the Applicant a fellowship was null and void, unlawful and of no effect. This is because the application was wrong from the start and what was built on wrong is wrong. The application was made in breach of the 2013 funding rules of the fellowship and other regulations. 38 On pp 2-3 of his Further Amended Originating Application, Dr Ghanem sets out the facts upon which he relies as establishing that he was not eligible to make his 2013 funding proposal. He says that, because he had submitted Future Fellowships proposals in 2009 and in 2010, r 9.1.2 of the 2013 Funding Rules prevented him from submitting any further funding proposal in the period 2009-2013. He claims that UCAN's application was null and void, invalid, unlawful and of no effect. In addition, he contends that the decision of the ARC to allow him to apply in the 2013 round constituted a variation of the 2013 Funding Rules which had not been approved by the Minister and was thus ineffective. He also claims that, in accepting and dealing with his 2013 funding proposal, the CEO of the ARC breached the Commonwealth Grant Guidelines (CGG). Dr Ghanem also contends that the utility of the declarations which he now claims is not restricted to the 2015 Funding Rules. He says that those declarations will, if made, "keep the door open for any future round applications". 39 The sentiments which I have summarised at [38] above are repeated on pp 11-12 of Dr Ghanem's Further Amended Originating Application under the heading "Grounds of the application". 40 On p 13 of that Application, Dr Ghanem claims the following relief: 2. To put aside the decision made by the Minister not to Award the Applicant a Future Fellowship as the application itself was void. 3. A declaration that the rights of the Applicant were adversely affected by the actions of the Respondents; 4A. A declaration that the applicant was ineligible to apply for Future Fellowship Round 2013. 4B. A declaration that the applicant's application for a research grant in Future Fellowship Round 2013 was invalid for the reason that he was not eligible to apply for such a grant. … 41 Dr Ghanem also seeks costs.

The 2013 Funding Rules 42 Under s 59(1) of the ARC Act, each year, the CEO of the ARC is required to prepare a set of rules dealing with the matters set out in s 59(2) for funding proposals that relate to each particular funding year. That set of rules must then be approved by the Minister pursuant to s 60. The rules take effect from a time determined by the CEO which time must not be before the Minister has approved them. A set of rules is of no effect unless it has been approved by the Minister (s 60(3)). A set of rules made by the Minister is a legislative instrument within the Legislative Instruments Act 2003 (Cth). The rules may be varied but the variation is of no effect unless the variation has been approved by the Minister (s 61(3)). 43 Under s 53(1)(d) of the ARC Act, a funding proposal must not be approved under s 51(1) of that Act, or recommended by the CEO of the ARC for such approval under s 52(1) of the ARC Act, as deserving financial assistance under Pt 7 Div 1 of the ARC Act unless the eligibility criteria set out in the approved Funding Rules are satisfied in relation to the proposal. 44 The 2013 Funding Rules were submitted to the Minister in late 2012 and approved by him on 3 December 2012. Those Rules were registered as a legislative instrument under the Legislative Instruments Act 2003 (Cth) on 18 December 2012. 45 Clause 3 of those Rules contains a number of relevant definitions. In addition to the definitions of Administering Organisation, ARC, ARC Act, Commonwealth, Eligible Organisation and Minister, the following definitions should be noted: • Chief Investigator (CI) means a researcher who satisfies the eligibility criteria for a Chief Investigator. • Eligibility Exemption Request is for the purposes of obtaining an exemption from the ARC regarding the eligibility of a prospective Proposal. • Future Fellow means a researcher who receives funding under the Future Fellowships scheme. • Future Fellowship means an individual award which has been awarded under the Future Fellowships scheme to an eligible researcher named in Schedule A, and includes a component of salary and non-salary Funding. • Future Fellowship Candidate means a researcher nominated in a Proposal for a Future Fellowship. • Project means a Proposal approved by the Minister to receive funding from the ARC in accordance with these Funding Rules. • Proposal means a request to the ARC for the provision of funding which is submitted in accordance with the Funding Rules. 46 There is no Schedule A to the 2013 Funding Rules. However, there is an Appendix A attached to those Rules. That Appendix lists all of the Eligible Organisations for the purposes of those Rules. 47 Clause 4 of the 2013 Funding Rules provides an overview of the Rules and specifies the objectives of the Future Fellowships scheme as well as the selection criteria and the targeted priority areas. Subclause 4.1.3 provides that the Future Fellowships scheme provides funding to Administering Organisations to support research. Subclause 4.4 requires an Administering Organisation to provide a strategic statement within any proposal submitted by that organisation. Clause 5 deals with funding. Clause 6 deals with organisational types, roles and eligibility. 48 Subclause 6.1 is in the following terms: 6.1 Eligible Organisations General Requirements 6.1.1 A Proposal may only be submitted by an Eligible Organisation listed at Appendix A. 6.1.2 The Eligible Organisation which submits the Proposal will be the Administering Organisation. 6.1.3 A Proposal may involve one Administering Organisation and one or more Host Organisations. 49 Subclause 6.2 deals with Host Organisations. That subclause is not presently relevant. 50 Clause 7 addresses the role and eligibility for the Future Fellow. Subclause 7.1 contains a number of general requirements applicable to the candidates. Subclause 7.2 is headed: "Eligibility Criteria for the Future Fellow". Subclauses 7.2.1 to 7.2.8 then set out the relevant criteria. These criteria address such matters as the academic qualifications and experience of the candidate and other administrative matters. 51 Clause 8 deals with salary levels applicable to Future Fellows. 52 Clause 9 is headed: Proposals. Subclauses 9.1.1 to 9.1.3 are in the following terms: 9.1 Number of Proposals and Cross-Scheme Eligibility 9.1.1 The Future Fellowship Candidate may be nominated on no more than one Future Fellowships Proposal in this funding round, evaluated as at the closing time of submission of Proposals, regardless of any subsequent change in, or withdrawal of, Proposals. Submitting Proposals that exceed this limit will result in all Proposals involving the relevant researcher not being recommended for funding. 9.1.2 The Future Fellowship Candidate may not submit more than two Future Fellowships Proposals in the funding rounds between 2009 and 2013. This includes Proposals that have been withdrawn after the closing time of submission of Proposals and Proposals which were deemed ineligible by the ARC. 9.1.3 A Future Fellow cannot apply for a subsequent Future Fellowship. 53 Subclauses 9.1.4 to 9.1.7 address other issues relating to cross-scheme eligibility. 54 Subclause 9.2 is headed: Proposal Eligibility and Duplication. Subclauses 9.2.1 to 9.2.4 are in the following terms: 9.2.1 The ARC will not duplicate funding for research, including infrastructure, funded by the Commonwealth as at 1 July 2013. 9.2.2 The Proposal must list all current funding and requested funding for the Future Fellowship Candidate under any ARC scheme, including Projects, Awards and Fellowships, or any other Commonwealth funding scheme. 9.2.3 The ARC will assess whether a Proposal meets the eligibility requirements in these Funding Rules and may recommend that a Proposal that does not meet the requirements be deemed ineligible. 9.2.4 A decision under subsection 9.2.3 may be made by the ARC at any stage during assessment of the Proposal and may result in non-progression of the Proposal to the next level of assessment. 55 Subclause 9.3 governs the granting of Eligibility Exemptions pursuant to an Eligibility Exemption Request. Subclause 9.3.1 regulates the submission of an Eligibility Exemption Request. Subclause 9.3.3 provides for notification of the outcome of any such request. Subclause 9.3.4 is in the following terms: 9.3.4 The ARC may grant an Eligibility Exemption for the Future Fellowship Candidate commensurate with a significant interruption or limitation of their research outputs owing to: a. periods of approved maternity/parental/carer's leave; b. greater than three months of unemployment; c. part-time academic employment, where the part-time position is the Future Fellowship Candidate's sole source of employment; and/or d. any other exceptional circumstances. 56 Subclause 10.1.1 provides that any proposal for funding must be submitted as a mature research plan presenting the proposed research ready for implementation and must contain all necessary information. 57 Subclause 11.1 governs the assessment and selection process for Proposals. That subclause is in the following terms: 11.1.1 Assessment of Proposals is undertaken by the ARC, which has the right to make recommendations for funding to the Minister, based on any number of assessments or solely on the basis of its expertise. 11.1.2 All Proposals will be considered against eligibility criteria and compliance with the Funding Rules. 11.1.3 All Proposals may be: a. assigned to independent assessors, from a range of organisations, who will assess and report, which may include written comments, on the Proposal against the selection criteria; and b. ranked and allocated a budget, relative to other Proposals, by the ARC College or other Selection Advisory Committee, on the basis of the Proposal, any assessors' reports and any rejoinder. 11.1.4 Following the recommendations of the ARC College or other Selection Advisory Committee, the CEO must make recommendations to the Minister in relation to what Proposals should be approved and at what level of funding, and what Proposals should not be approved. 11.1.5 The ARC has procedures in place for managing organisational and personal Conflicts of Interest for assessors, members of the ARC College or Selection Advisory Committee, members of other ARC Committees and ARC staff. 58 Subclause 11.4 governs recommendations and offers of funding. Subclause 11.4.2 is in the following terms: 11.4.2 Under the ARC Act, the Minister must not approve for funding any Proposal that fails to meet the eligibility criteria set out in these Funding Rules. 59 Clause 12 provides for an appeal in respect of process issues. 60 Under subcl 14.5.2, if the ARC considers that a Proposal is incomplete, inaccurate or contains false or misleading information, the ARC may in its absolute discretion decide to recommend that the Proposal not be approved for funding. 61 The 2013 Funding Rules were not relevantly varied pursuant to s 61 of the ARC Act. 62 Under the 2013 Funding Rules, the eligibility criteria within the meaning of s 53(1)(d) of the ARC Act are found in cl 6, in subcl 7.2 (Eligibility Criteria for the Future Fellow) and in cl 9 (Proposals). 63 The term eligibility criteria when used in s 53(1)(d) is not defined. However, I think that it means those standards or attributes which must be met by an applicant for funding in any particular round as a condition of that applicant's proposal being permitted to be considered by the CEO of the ARC as suitable to be recommended to the Minister for funding and as available to be approved by the Minister for funding. Clause 6 deals with Eligible Organisations whereas cl 7 and cl 9 deal with the eligibility of the Future Fellowship Candidate.

The Deed of Settlement 64 On 14 December 2012, Dr Ghanem and the Commonwealth executed a Deed which was intended to resolve Dr Ghanem's claims in respect of the 2009 and 2010 funding rounds for the Future Fellowships scheme (Deed of Settlement). The counter-party to Dr Ghanem is described as "The Commonwealth of Australia, represented by the Australian Research Council". The Recitals in that Deed are in the following terms: CONTEXT AND RECITALS This Deed is made in the following context: A. The applicant was the Chief Investigator and Future Fellow Candidate in Future Fellowship application FT0990251 made to the ARC by the University of Tasmania. Application FT0990251 was a funding proposal submitted for consideration for funding under the Future Fellowship scheme in 2009 but was unsuccessful. By email dated 11 May 2010, the Australian Government Solicitor (AGS) provided the applicant with a document entitled 'Feedback Prepared by the ARC for Dr Ashraf Ghanem Proposal FT0990251,' being a compilation of the reviewers' comments from the original evaluation report for that proposal. B. The applicant was also the Chief Investigator and Future Fellow candidate in the Future Fellowship application FT100100084, made to the ARC by the University of Western Australia. Application FT100100084 was unsuccessful in the 2010 funding round. The ARC's decision relating to the outcome of the 2010 round was communicated to the applicant by UWA on 17 November 2010. C. By letter dated 18 April 2011 from the ARC to the applicant, the applicant received a copy of the assessment for FT100100084 which had been prepared at the time of the consideration of the funding application, including assessor comments and scores. Of the 5 assessors, 2 provided comments with their scores. By letters dated 15 February 2012 and 15 March 2012, the ARC provided the applicant with a copy of the reasons provided in the briefing to the Minister relating to funding recommendations for Future Fellowships for the 2010 year. D. On 12 January 2012 the applicant filed an application for an extension of time to seek judicial review of certain decisions of the ARC under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). This application is Ashraf Ghanem v Australian Research Council (File number ACD 02 of 2012). On 17 July 2012 the applicant filed an amended application for judicial review, specifically seeking review of the following decisions of the ARC: - that the Chief Executive Officer of the ARC make a recommendation to the Minister not to award the applicant a Future Fellowship, and - that the applicant not be provided with a proper statement of reasons why his application for a Future Fellowship was not supported. E. On 2 August 2012, the Court ordered the applicant file and serve written submissions in response to the response to the respondent's submissions, an outline of submissions in support of the final relief sought and any further evidence on which he wishes to rely in relation to s 11(4) of the ADJR Act on or before 22 August 2012. The Court also ordered that the proceeding be referred to a Registrar for mediation in accordance with Division 28.3 of the Federal Court Rules 2011. F. The parties have agreed once and for all to resolve all matters potentially in dispute between them upon and subject to the terms and conditions below. 65 Pursuant to cl 1(a) of the Deed of Settlement, the ARC undertook to provide to Dr Ghanem a signed letter addressed to the Deputy Vice Chancellor for Research at UCAN in the terms of Annexure 1 to that Deed. Such a letter was provided to Dr Ghanem. The letter informed the Deputy Vice Chancellor for Research at UCAN that Dr Ghanem would be regarded by the ARC as eligible for Future Fellowships scheme funding in the 2013 funding round. 66 Under cl 1(b), Dr Ghanem agreed to discontinue the proceeding referred to in Recital D in the Deed upon the basis that there be no orders as to costs. That proceeding was discontinued as agreed. 67 Clause 1(c) of the Deed of Settlement is in the following terms: Providing that the Federal Court appeal is discontinued before the close of applications for Future Fellowships for funding commencing in 2013, the ARC undertakes that any application for funding in which Ashraf Ghanem is named as the Chief Investigator will not be determined to be invalid on the ground that Ashraf Ghanem has reached or exceeded the maximum number of applications for Future Fellowship funding in which he is named as Chief Investigator. 68 Clause 2 of the Deed of Settlement contains releases and other protective covenants in respect of the 2009 and 2010 funding rounds. 69 Clause 3.1(e) of the Deed of Settlement provides: The applicant acknowledges that: … e. entering into this Deed does not guarantee that any future application for funding involving the applicant as a Future Fellowship candidate will be successful. Any such application will be considered on its merits in accordance with the Future Fellowships Funding Rules for funding commencing in 2013 approved by the Minister for Innovation, Industry, Science and Research under s 60 of the Australian Research Council Act 2001 and is only affected by this Deed to the extent provided for in clauses 1(a) to 1(c) of this Deed. (Further information about applying for funding under the Future Fellowships commencing in 2013 will be available in due course on the ARC website.) 70 Clause 3.2 is an Entire Agreement clause. 71 Clause 3.3 provides for confidentiality in respect of the terms of the Deed of Settlement although, consistent with those terms, Dr Ghanem is permitted by that clause to disclose the terms of the Deed in order to progress any application for funding made by an organisation with which he is associated in the 2013 round.

Consideration 72 Dr Ghanem contends that his 2013 funding proposal was "null and void, unlawful, invalid and of no effect". For that reason, he also contends that the Court should set aside the decision made by the Minister on 8 November 2013 not to award a 2013 Future Fellowship to him. 73 Dr Ghanem supported this ultimate contention advanced by him in the following way: (a) Dr Ghanem had submitted proposals in both the 2009 and 2010 Future Fellowships funding rounds. (b) For that reason, he was not permitted to submit his 2013 funding proposal because that proposal would be the third proposal submitted by him in the funding rounds between 2009 and 2013. The submission of such a proposal contravened the express prohibition contained in subcl 9.1.2 of the 2013 Funding Rules. (c) A funding proposal submitted in contravention of subcl 9.1.2 is a nullity. (d) The ARC cannot vary the funding rules without first obtaining the approval of the Minister (s 61(3) of the ARC Act). Subclause 13.14 of the CGG contains a guideline substantially to the same effect. The guideline goes a little further because it suggests that agency staff should seek ministerial or other appropriate authority before invoking provisions for waiving or amending eligibility and assessment criteria and keep appropriate records. (e) The Deed of Settlement entered into between him and the Commonwealth was also void because it constituted a variation of or amendment to the 2013 Funding Rules in circumstances where that variation or amendment did not have the prior approval of the Minister as required by s 61(3) of the ARC Act and subcl 13.14 of the CGG. (f) Subclause 11.4.2 of the 2013 Funding Rules provides that the Minister must not approve for funding any funding proposals that fail to meet the eligibility criteria set out in those Rules. The terms of that subclause reflect the statutory requirements in s 53(1)(d) and s 53(1)(e) of the ARC Act. Those subsections provide that a funding proposal must not be approved under s 51(1) of the ARC Act, or recommended by the CEO under s 52(1) of that Act for such approval, unless the eligibility criteria set out in the Funding Rules are satisfied in relation to the proposal and the application for financial assistance for the proposal satisfies the requirements set out in those approved Funding Rules. 74 Dr Ghanem also submitted that the utility of the relief which he now seeks is not restricted to the 2015 funding round. He submitted that the Court should make the declarations which he seeks because the existence of such declarations "… will keep the door open for any future round application". 75 Dr Ghanem also argued that, should the Court decide that he was eligible to apply for a grant in the 2013 funding round, that decision would cause significant prejudice to other applicants because none of them would have had the same opportunity to seek funding on a third occasion in the period between 2009 and 2013. 76 The respondents' advocate submitted that Dr Ghanem's 2013 funding proposal was not a "nullity". He submitted that, even if, under the 2013 Funding Rules, Dr Ghanem was not eligible to submit his 2013 funding proposal, that circumstance did not render the proposal null and void or a nullity. He submitted that a proposal which is technically ineligible for the reason that it is the third proposal submitted within the period 2009-2013 is not null and void within the relevant statutory scheme. He also submitted that, in any event, the CEO of the ARC was permitted to exercise a discretion to propound Dr Ghanem's 2013 funding proposal and that, as a result, the Minister also had a discretion to assess and consider that proposal as part of the 2013 funding round. 77 The fundamental premise underpinning Dr Ghanem's argument is that his 2013 funding proposal should be treated as never having, in law, existed and as having no relevant legal effect against the world, for all purposes. (See, in a different context, the observations of Kirby P in National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213 at 213.) 78 The approval processes embodied in the relevant legislative scheme and rules made thereunder (viz the ARC Act and the relevant Funding Rules) do not support the notion that Dr Ghanem's 2013 funding proposal should be treated as never having existed. Section 51 and s 52 of the ARC Act contemplate that a Future Fellowship funding proposal will be submitted by an approved organisation in a form which complies with s 52 and s 53 of the ARC Act and the relevant approved Funding Rules. In particular, s 53 and subcl 11.4.2 of the 2013 Funding Rules contemplate that the proposals lodged in the 2013 funding round must meet certain eligibility criteria before the Minister can make a grant to the proponent. In other words, those sections and that subclause in the 2013 Funding Rules constitute strong indications that a funding proposal lodged under the 2013 Funding Rules which does not meet the eligibility criteria is not void but is merely ineligible and is not susceptible to being approved by the Minister. In my view, the context in which Dr Ghanem's fundamental proposition must be considered does not support that proposition. As the plurality judgment of the High Court held in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-393 [91]-[100], esp at 389 [91], an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether such an act is invalid depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of such a purpose is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 79 Here, the eligibility criteria include a requirement that the Future Fellowships candidate in an application for funding must not have already made two unsuccessful applications for funding in the period 2009-2013. That requirement is not a precondition for the due consideration of the application: Rather it is a matter which is part of a group of matters which regulate the exercise of functions by the CEO of the ARC and the Minister. 80 In my judgment, his 2013 funding proposal was not void but was, at its highest, merely ineligible. 81 I now turn to consider whether, in truth, the CEO of the ARC was not permitted to make any recommendation in respect of Dr Ghanem's 2013 funding proposal and whether the Minister was not permitted to assess that recommendation and ultimately determine not to grant a Future Fellowship to Dr Ghanem. 82 The respondents advanced two reasons in support of their contention that there was no impediment in law to the CEO placing Dr Ghanem's 2013 funding proposal in the mix for consideration in the 2013 funding round and no impediment to the Minister declining to award a Future Fellowship in that round to Dr Ghanem. 83 The first reason advanced by the respondents was that the 2013 Funding Rules directly afford to the CEO of the ARC the latitude to do exactly what was done in this case. In support of that proposition, the respondents pointed to the terms of subcl 9.2.3 of the Funding Rules which, so they submitted, imposed a mandatory requirement upon the ARC to assess whether a particular proposal meets the eligibility requirements in the 2013 Funding Rules but then reposes a discretion in the ARC to decide whether or not to recommend that a particular proposal that does not meet the requirements be deemed ineligible. It was submitted on behalf of the respondents that the second part of subcl 9.2.3 of the 2013 Funding Rules should be interpreted as providing a source of power for the CEO of the ARC to make a decision on the merits of the particular case as to whether or not the proposal should be deemed to be ineligible. The respondents argued that the language of subcl 9.2.3 made clear that the CEO of the ARC was not required to deem all non-complying proposals as ineligible but retained a discretion to decide whether to do so or not. The corollary of these propositions is that the CEO of the ARC is given a discretionary power to decide whether or not a non-complying proposal should nonetheless be propounded to the Minister. The respondents referred to s 33(2A) of the Acts Interpretation Act 1901 (Cth) which provides: 33 Exercise of powers and performance of functions or duties Powers, functions and duties may be exercised or must be performed as the occasion requires … (2A) 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. 84 That provision is made applicable to legislative instruments by s 2(1). 85 I think that the submissions made on behalf of the respondents are correct. For this reason, it was open to the CEO of the ARC to recommend to the Minister that Dr Ghanem's 2013 funding proposal not be the subject of a grant and it was also open to the Minister to refuse to make a grant to Dr Ghanem in the 2013 funding round. 86 The second reason advanced by the respondents in support of the proposition that Dr Ghanem's 2013 funding proposal should not have been rejected out of hand as being ineligible is that, by reason of the arrangements embodied in the Deed of Settlement, Dr Ghanem waived any entitlement to raise now the arguments which he has put forward in this Court in the present Application. In the alternative, they submitted that he acquiesced in his 2013 funding proposal going forward. I reject Dr Ghanem's contention that the Deed of Settlement is void. There is no basis for upholding such a contention in the material before me. 87 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 322 [80], McHugh J said: The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary (Aala (2000) 204 CLR 82 at 108-109 [57]-[58] per Gaudron and Gummow JJ, Gleeson CJ agreeing). Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands (See Aala (2000) 204 CLR 82 at 108 [57] per Gaudron and Gummow JJ, citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320 per Lord Denning MR). Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome (See Aala (2000) 204 CLR 82 at 109 [58] per Gaudron and Gummow JJ, citing Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228). 88 To similar effect were the observations of Gaudron and Gummow JJ in Re Refugee Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 at 108-109 [57]-[58]. 89 Here, Dr Ghanem secured special treatment in respect of the 2013 funding round by means of the arrangement embodied in the Deed of Settlement. He then prevailed upon UCAN to sponsor his 2013 funding proposal and was quite content to submit that proposal for consideration and determination in accordance with the 2013 Funding Rules. In effect, he elected to procure an exception for himself from one of the eligibility criteria for the 2013 funding round and then to exploit that exception for his own benefit in that round. It was only when the Minister declined to make a grant of a Future Fellowship to him that Dr Ghanem decided to raise and to seek to take advantage of his so called ineligibility to submit his 2013 funding proposal. 90 The Court should not aid an applicant to seek to take advantage of the type of technicality raised by Dr Ghanem in the present case in circumstances where he has so clearly waived or acquiesced in his funding proposal going forward. For this reason, I would not be disposed to grant any relief to Dr Ghanem, in any event. 91 At the time when the final hearing of Dr Ghanem's Application took place before me, the 2015 Funding Rules had not been approved by the Minister. As at that date, the content of those Rules was a matter of pure speculation. 92 There was no evidence before me that Dr Ghanem had developed any particular funding proposal for the 2015 funding round or that, in fact, he was intending to propound a proposal in that round. Further, there was no evidence before me that UCAN was prepared to support a funding application in the 2015 funding round in which Dr Ghanem would be the Future Fellowship candidate. For these reasons, in addition to the contents of the 2015 Funding Rules being a matter of speculation, the intentions of UCAN and Dr Ghanem were also a matter of speculation. It may be assumed that Dr Ghanem would have at least considered trying to bring forward yet another application but there is no evidence to support the proposition that he could have done so. 93 In those circumstances, even if I am wrong about the other matters with which I have dealt above, there is no proper foundation in the present case for the grant of any relief. The Court ought not to make declarations and other orders in support of purely theoretical proposals which are not anchored in any reality. 94 I do not think that the ARC or the Minister purported to amend or vary the 2013 Funding Rules without complying with s 61(3) of the ARC Act. In my view, the conduct of the ARC, its CEO and the Minister did not constitute an amendment to or variation of those Rules. The Rules remained intact. All that happened was that, in conformity with the agreement reached with Dr Ghanem in the Deed of Settlement, the ARC and the Minister agreed to waive compliance with subcl 9.1.2 of the 2013 Funding Rules. 95 Nor do I think that there is any merit in Dr Ghanem's submission concerning prejudice to other applicants.

Conclusions 96 For all of the above reasons, Dr Ghanem's claims must be dismissed with costs. 97 Order 4 made by the Full Court on 7 October 2014 reserved to me the question of costs in respect of the summary dismissal application. Presumably, the Full Court did so because the Court considered that the disposition of those costs should await the outcome of Dr Ghanem's proceeding on a final basis. 98 I think that the respondents should have their costs of the summary dismissal application. Initially, in front of me, that application was completely successful. In the Full Court, it was very substantially successful. The issue which was remitted to me has ultimately been decided in favour of the respondents. Although the Full Court was of the view that that issue should be determined on a final basis, it did so in circumstances where Dr Ghanem changed his case from the case which he advanced before me to a different case in the Full Court. He had never claimed before me a declaration that his 2013 funding proposal was void nor did he suggest to me at any time that there was utility in granting the relief which he had sought because he would wish to be eligible to lodge a funding proposal in the 2015 funding round. In those circumstances, I consider that the respondents were justified in bringing their summary dismissal application and, despite the fact that the Full Court disagreed with me in relation to one aspect of Dr Ghanem's case, the respondents were also justified in litigating the summary dismissal application in the manner in which they chose to litigate that application. 99 There will be orders accordingly. I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Legislative Instruments Act 2003(Cth)

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