Priestley v Godwin [2008] FCA 1179 (16 July 2008)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 1 OF 2008

AND:

ANNWYN GODWIN
PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 OF 2008

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES First Respondent SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	16 JULY 2008
WHERE MADE:	CANBERRA

2. The applicant’s first, second and third applications for recusal are refused.

3. The decision on the fourth application for recusal is reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 1 OF 2008

AND:

ANNWYN GODWIN
PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 OF 2008

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES First Respondent SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE Second Respondent

JUDGE:	BENNETT J
DATE:	16 JULY 2008
PLACE:	CANBERRA

1 These two proceedings were commenced in January 2008. In each proceeding Mr Priestley is seeking statements of reasons for, and the disclosure of evidence leading to, decisions of the respondents to make no further enquiry into certain allegations made by Mr Priestley. Those allegations concerned:

• a decision of the respondent in ACD 1/2008 to make no further inquiry into alleged breaches of the Parliamentary Service Code of Conduct by various parties; and

• a decision of the respondent in ACD 2/2008 not to refer Mr Priestley’s allegations of corrupt conduct by the Secretary of the Department of Parliamentary Services and others for advice and/ or inquiry.

2 The respondents in each proceeding have filed and served notices of objections to competency. When the notices came on for hearing before Gyles J, Mr Priestley raised a constitutional issue (‘the constitutional issue’). Accordingly, Gyles J did not proceed with the hearing but ordered that s 78B notices be served (Priestley v Godwin [2008] FCA 835 (‘Priestley’) at [3]).

3 Mr Priestley challenges the constitutional validity of s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) and O 20 r 5 of the Federal Court Rules which was made in furtherance of that section. Mr Priestley’s primary submission is that the judges of the Federal Court were influenced by Parliament to replace the former test in the Federal Court Rules of "no reasonable cause of action" made, he says, under the Court’s inherent jurisdiction, with the statutory test contained in s 31A, thereby compromising the independence of the Court.

4 On 11 June 2008 the constitutional issue was listed for hearing on 16 July 2008, before me. On 14 July 2008 Mr Priestley sent a letter to my Chambers requesting that the hearing be ‘adjourned for a time and date to be determined by the Federal Court’. The basis for this request was ‘the commencement of proceedings in the High Court’ for an order to show cause. I declined to adjourn the hearing and the matter came before me on 16 July 2008.

5 Mr Priestley presses his application for an adjournment, on the basis that he has filed an application in the High Court. That application relates to his objection to any judge of the Federal Court, or any judge that participated in the making of O 20 r 5 of the Federal Court Rules, sitting on his matter. The application to the High Court also relates to the decision of Stone J in Priestley not to recuse herself. Mr Priestley has joined me as a defendant in the High Court proceedings, filed before the first return of these proceedings before me, on the basis of bias and/ or reasonable apprehension of bias.

6 The respondents neither consent to nor oppose the application for adjournment. Although proceedings have been filed in the High Court, no application has been made to remove this matter to the High Court. The proceedings are before me for hearing. The Court has set aside the time for that hearing and the parties are present. The respondents are represented by counsel and solicitors. I see no sufficient reason to adjourn the matter because Mr Priestley has brought an application in the High Court. That application relates, in part, to a prior aspect of these proceedings, specifically Stone J’s refusal to recuse herself, and an anticipatory claim concerning me.

8 Mr Priestley has made four applications that I recuse myself from hearing the matter.

9 Mr Priestley submits that I should recuse myself from hearing this matter due to a reasonable apprehension of bias. Mr Priestley points to Deane J’s statement in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 where his Honour noted that one of the categories of disqualification by reason of appearance of bias was ‘disqualification by interest... where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice’. Mr Priestley submits that I have an interest in the proceedings and that I am biased as a rule making judge of the Federal Court.

10 Further, it is Mr Priestley’s submission that there is no judge presently sitting on the Federal Court who can sit on his case, either because that judge was also a rule making judge with respect to the impugned rule, or because the judge has applied s 31A of the Act. Although judges have been appointed to the bench since O 20 r 5 was passed, Mr Priestley submits that these judges are also biased as they have applied s 31A of the Act in their judgments. Mr Priestley says that would give rise to a reasonable apprehension of bias on the part of that judge because he or she has therefore been influenced by Parliament.

11 Mr Priestley proffers two alternatives to myself or any other judge of the Court hearing his matter. He submits that the matter could be referred to the High Court under s 40 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) and that he could apply for a writ of prohibition and ask the High Court to issue s 78B notices in order for the High Court to examine the constitutional validity of s 31A of the Act. The other alternative Mr Priestley proffers is that Parliament appoint a new judge to the Federal Court to sit on his case.

12 I put to Mr Priestley that one solution to the jurisdictional dilemma posed by him was to dismiss his proceedings. Mr Priestley then pointed to the doctrine of necessity and stated that ‘irrespective of whatever rights I have under the Judiciary Act you may, in your discretion decide, because of the doctrine of necessity, to hear these Constitutional issues’. Despite this, Mr Priestley indicates that he would object to me hearing the matter under the doctrine of necessity and that he would ask me to stand down if I proceeded on this basis.

13 I do not see that the grounds raised by Mr Priestley give rise to a reasonable apprehension of bias on my part. I do not see them as reasons to recuse myself. I reject the general proposition that the fact that a judge is a rule making judge or has applied s 31A of the Act gives rise to a reasonable apprehension of bias. Mr Priestley wishes to proceed with his application and does not wish to have it dismissed. Mr Priestley has made no application for removal to the High Court under s 40 of the Judiciary Act and continues to object to any judge of this Court hearing his matter. The only alternative Mr Priestley can proffer, except for applying for removal to the High Court which he has not done, is that Parliament appoint another judge to the Federal Court to hear his case. I do not see that as a reasonable alternative.

14 In any event, where the basis for the alleged apprehension of bias applies to all judges of the Court, the doctrine of necessity applies so that a judge of this Court has to hear the application. The doctrine of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit on a case where no judge without such an interest is available to sit (Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Mason CJ and Brennan J at 88).

16 After I determined that I would not recuse myself on the ground of bias and/ or reasonable apprehension of bias, Mr Priestley seeks to raise an additional ground as to why I should recuse myself, namely, my role as a rule making judge of this Court.

17 Mr Priestley submits that I am disqualified from hearing this matter by reason of my specific interest in O 20 r 5 of the Federal Court Rules. Mr Priestley submits that I have made comments in a judgment regarding s 31A of the Act and that I have therefore considered and applied s 31A. He submits that this is a further ground for a reasonable apprehension of bias. He says that in Rossetto v Meriton Apartments Proprietary Limited [2006] FCA 1290 I made comments to the effect that s 31A is a valid law of the Commonwealth and that this shows that there is a reasonable apprehension of bias on my part.

18 In Rossetto at [45] I referred to the test in s 31A and observed that it provides ‘a more flexible and arguably less stringent test than that of Dey and General Steel’, referring to Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.

19 The respondents submit that this does not show reasonable apprehension of bias and that there is no basis upon which I should recuse myself. I see nothing arising from that decision to change my view as set out previously concerning the application for recusal and I reject this as a ground for reasonable apprehension of bias.

20 Mr Priestley then submits that my decision to refuse his first application for recusal was incorrect, as failing to apply the common law test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. He submits that I made an error of law.

21 Mr Priestley points to Ebner at 363 where Gaudron J noted that the test with respect to the appearance of bias is ‘"whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide"’ (citing Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Mr Priestley says that it is necessary for me first to test his application for my recusal in the way described by the Court in Ebner and to consider the history of the proceedings and all relevant facts and circumstances as a whole to decide whether a perception of bias has arisen.

22 The respondents submit that this submission is without any reasonable foundation and that there is no evidence to suggest that I did not apply the correct test in my refusal to recuse myself.

23 I understand this submission by Mr Priestley to be a further application for recusal on the ground of reasonable apprehension of bias and on the basis that I did not give sufficient reasons for refusing his previous applications.

24 I am fully aware of the test in Ebner and my consideration of Mr Priestley’s submissions regarding a reasonable apprehension of bias was in accordance with that test. I do not consider that this ground supports a basis for me to recuse myself. Accordingly, this application for recusal is refused.

25 Mr Priestley makes a further application for me to recuse myself and submits that I had ‘not disclosed all relevant circumstances regarding [my] decision to continue hearing this matter’. He argues that I have not complied with the Guide to Judicial Conduct 2007 at paragraph 3.5(f). That paragraph provides that if a judge decides to sit, the reasons for that decision should be recorded in open court, as should the disclosure of all relevant circumstances.

26 The reasons for my decision on applications 1 and 2 have been recorded. Mr Priestley submits that the "relevant circumstances" that require disclosure are the circumstances surrounding my participation as a rule making judge and the process by which O 20 r 5 of the Federal Court Rules was passed.

27 The respondents submit that the rule exists and has been made. The respondents say that the matters that go beyond this fact, such as who actually drafted the rule, are irrelevant.

28 I do not consider that this application contains grounds that support a basis for recusal. Accordingly, this application for recusal is refused.

He says that the Human Rights Act incorporates Article 14.1 of the International Covenant on Civil and Political Rights which states that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Mr Priestley submits that, under s 21A of the Human Rights Act, a court must be independent and that this Court has compromised its independence by abrogating the previous rule in the Federal Court Rules and establishing O 20 r 5.

30 Mr Priestley is not suggesting that he is not getting a public hearing. His submission is that the Human Rights Act applies and raises two aspects; an independent court and also an impartial court. He submits that in refusing to recuse myself on the basis of a reasonable apprehension of bias under the common law, I have dealt only with the aspect of impartiality. He submits that there is also an issue of independence. Mr Priestley submits that the Federal Court, by which I take him to mean the Court and all of the judges of the Court, compromise the Court’s and the judges’ independence by having abrogated to Parliament the determination of what constitutes "no reasonable cause" in relation to a proceeding in the Federal Court.

31 The respondents submit that the Human Rights Act is irrelevant to the proceedings before me.

32 This application for recusal raises the same subject matter of the proceedings, namely the constitutionality of s 31A of the Act and O 20 r 5 of the Federal Court Rules. Insofar as it constitutes a separate ground for recusal of a judge, it would apply to all judges of the Court. Again, as Mr Priestley wishes to have the matter proceed in the Federal Court, it would seem that the doctrine of necessity applies and the case should proceed to hearing. To the extent that this ground raises the substantial question in issue in the proceedings, it can only be determined when that substantial question is determined.

33 I will consider this aspect of Mr Priestley’s submissions further and will reserve judgment on this aspect.

34 I see no basis upon which the hearing listed for today should be adjourned. I also see no basis upon which to recuse myself from proceeding to hear the constitutional issue. I will, however, consider further Mr Priestley’s submissions regarding the application of the Human Rights Act to this Court. I direct the parties to provide any further written submissions they wish to make on this point within seven days. The hearing of the constitutional issue will proceed today.

2. The applicant’s first, second and third applications for recusal are refused.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

The Applicant was self represented

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	16 July 2008

Date of Judgment:	16 July 2008