Priestley v The Honourable David Peter Maxwell Hawker [2009] FCA 169 (23 February 2009)

Last Updated: 2 March 2009

FEDERAL COURT OF AUSTRALIA

Priestley v The Honourable David Peter Maxwell Hawker
[2009] FCA 169

MICHAEL PRIESTLEY v THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES, SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE STATE and ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
ACD 2 of 2009

RARES J
23 FEBRUARY 2009
SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 of 2009

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 STATE Second Respondent ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER Third Respondent

JUDGE:	RARES J
DATE OF ORDER:	23 FEBRUARY 2009
WHERE MADE:	SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

THE COURT ORDERS THAT:

1. The applicant’s application for an adjournment is dismissed.
2. The application is dismissed.
3. The applicant pay the respondents’ costs of the motion.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 of 2009

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 STATE Second Respondent ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER Third Respondent

JUDGE:	RARES J
DATE:	23 FEBRUARY 2009
PLACE:	SYDNEY (BY VIDEOCONFERENCE TO CANBERRA)

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for an extension of time in which to seek leave to appeal and if that were granted, seeking leave to appeal, from a judgment of a judge of the Court given on 16 October 2008: Priestley v Godwin (No 3) [2008] FCA 1529. The primary judge made a declaration that neither s 31A of the Federal Court of Australia Act 1976 (Cth), nor O 20 r 5 of the Federal Court Rules is invalid and ordered that the applicant, Michael Priestley, pay the respondents’ costs. Originally there were two separate motions but on 11 February 2009 I ordered in chambers, by consent, that both sets of proceedings seeking relief in respect of the primary judge’s orders be consolidated.

THE ADJOURNMENT APPLICATION

2. When the matter came on before me today Mr Priestley applied for an adjournment by reason of what he claimed was the late service of written submissions by the respondents. He wished to be able to deal with, first, the circumstances in which the primary judge pronounced her orders and delivered her reasons and, secondly, a matter that was said to arise out of the submissions. I allowed Mr Priestley to tender communications passing between the primary judge’s associate and the parties. I rejected, as irrelevant, the tender of any material by Mr Priestley dealing with the second aspect namely, what he anticipated he might do in consequence of certain statements in the respondents’ submissions.

BACKGROUND

3. Mr Priestley’s motions that s 31A and O 20 r 5 were invalid had been heard in Canberra where the parties were located. On 14 October 2008 her Honour’s associate advised the parties via emails that her Honour would be delivering judgment in Sydney on 16 October originally at 10.15 am, and later at 10.00 am. Coincidentally, another challenge by Mr Priestley was listed before the High Court on 16 October in which he sought relief with respect to, among other things, her Honour participating in the hearing of his applications. After some to'ing and fro'ing in the emails, her Honour’s associate informed the parties that her Honour did not require any of them to be present for the handing down of the judgment but offered, if either wished to be present, to arrange a video link to Canberra. I infer, although there is no direct evidence, that Mr Priestley did not require a video link to be established and did not attend to hear her Honour pronounce judgment.
4. Under s 12 of the Federal Court of Australia Act 1976 the Court may sit, from time to time, as required at the places at which registries of the Court are established, but may also sit at any place in Australia or in a Territory. Accordingly, her Honour was authorised to sit and deliver judgment in Sydney, as she did. Mr Priestley claimed that in consequence of the correspondence between the parties and her Honour’s associate he understood that he did not need to attend at the time of her Honour pronouncing judgment, and, so he claimed, he did not have the opportunity, pursuant to O 52 r 10(1), to apply orally to her Honour for leave to appeal from that decision.
5. One of the orders which Mr Priestley had sought in the High Court was relief in the nature of a writ of prohibition to prevent her Honour from sitting in relation to his matter at all. After her Honour made the orders and gave her reasons, Mr Priestley amended his application in the High Court to seek relief in the nature of a writ of certiorari in respect of those orders.
6. The proceedings came before French CJ in December and his Honour gave judgment on 17 December 2008 dismissing them: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 ALR 612; [2008] HCA 59. The Chief Justice set out the procedural history and asserted grounds for the relief which Mr Priestley claimed. Among other things he had sought prohibition against the primary judge because she had been one of the judges of this Court who made O 20 r 5, the validity of which he challenged and her Honour had upheld. He also sought to challenge her Honour’s decision in respect of s 31A.
7. The Chief Justice recorded that one of the grounds on which Mr Priestley challenged the primary judge’s ability to sit was an alleged breach of s 21 of the Human Rights Act 2004 of the Australian Capital Territory arising in some way out of her Honour’s refusal to recuse herself after he had made allegations of bias against her. That refusal was the subject of a judgment the primary judge had delivered at an earlier time (Priestley v Godwin (No 2) [2008] FCA 1453) and is not before me.

MR PRIESTLEY’S DELAY IN SEEKING LEAVE TO APPEAL

8. The present notice of motion was filed on 27 January 2009. Mr Priestley told me, and I accept for the purposes of this judgment, that he first tried to file an application in the registry on 15 January 2009 but that was rejected because of a formal defect. He made subsequent attempts to file on 20 and 22 January which were also rejected before he finally succeeded with the motion that is before me. Earlier on 18 December, the day following French CJ’s decision, Mr Priestley asked her Honour, through a letter sent to her associate, whether she would consider giving him an extension of time in which he could seek leave to appeal. On 22 December 2008, her Honour’s associate wrote to the parties informing them that any application for an extension of time would need to conform with the Federal Court Rules. Mr Priestley responded indicating that he would be in a position to file such an application before the Court resumed on 2 February 2009.
9. The respondents contended that on examination, the bases on which Mr Priestley sought leave to appeal would be shown to have no substance and that would enable the Court to deal with his application for an extension of time cognately. Mr Priestley has appeared for himself and has articulately explained his position both in writing and orally.
10. The purpose of requiring applications for leave to appeal from interlocutory judgments to be made within particular time frames is to ensure the orderly conduct of litigation. The Court has a discretion to allow an application to be made out of time in the event that a sufficient justification is shown. There are at least two reasons why such a justification is necessary. First, the rules set down the procedural framework in which litigants are expected to operate in the conduct of their litigation. In this case, there has been a degree of displacement because, by informing the parties through her associate that there was no need to be present when judgment was to be delivered, her Honour unintentionally may have allowed Mr Priestley to consider that there would be no occasion for him to make an application to seek leave to appeal orally. Such an application would have been fraught with some difficulty because, at that time, he would not have had the opportunity to read her Honour’s reasons which are detailed and carefully reasoned. It is unlikely he would have been in a position then and there to seek leave to appeal particularly when he was appearing later that day in the High Court.
11. The second reason why the court requires the parties to apply within time limits is that the successful party can be seen to have gained a right, at least at that stage in the litigation, to have the proceedings conducted in the way in which the judgment determined. This is not the same as a situation in which an extension of time in which to file a notice of appeal is sought. In that case, vested rights have been created by a final judgment. However, the situations are analogous. The Court will ordinarily look at the merits of the proposed appeal the subject of an application for an extension of time to assess whether the case appears sufficiently strong to warrant a departure from the Court’s procedural rules. It is not, however, the practice of the Court in such situations to have the parties go into extensive and detailed argument. The Court proceeds on the basis of having some appreciation of the issues in order to determine whether an extension of time is warranted: see eg. Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 519-520 [3]- [4], per Brennan CJ and McHugh J, at 540 [66 par 4], per Kirby J. The Court forms a view of the demands of justice in accordance with a broad judicial discretion: Jess v Scott (1986) 12 FCR 187 at 188 per Lockhart, Sheppard and Burchett JJ.
12. Here Mr Priestley has argued that his delay, totalling in the order of three and a half months before he filed an application which was accepted by the Court, can be explained by three factors. First, the communication from the primary judge’s chambers that he need not be present at the time of delivery of judgment. Secondly, the pendency of the proceedings before the High Court, the outcome of which, if decided in Mr Priestley’s favour, would have made otiose the need to seek leave to appeal. Thirdly, the fact that in January 2009 he sought to file an application on a number of occasions but had not managed to get the technical form correct.
13. Even if I were to take the view favourable to him, had French CJ decided in his favour, that the pendency of the proceedings before the High Court meant that this application may never have been necessary, Mr Priestley then delayed for nearly a further month, after his earlier request communicated to the primary judge’s chambers, before attempting to file his motion in this Court. Mr Priestley was aware of the requirement of the rules that such an application be made within seven days after the pronouncement of judgment.
14. I am not satisfied that Mr Priestley has satisfactorily explained his delay in applying for an extension of time in which to seek leave, following the decision given by French CJ on 17 December 2008.

PROSPECTS OF THE PROPOSED APPEAL

15. I am of opinion that in any event there are numerous difficulties on the merits of the proposed appeal. The draft notice of appeal seeks to challenge the primary judge’s judgment on a raft of bases. First, Mr Priestley claimed that her Honour was not entitled to pronounce judgment in Sydney because she did not sit in Canberra. In my opinion, that argument has no substance and no prospect of success having regard to s 12 of the Federal Court of Australia Act 1976.
16. Secondly, Mr Priestley asserted that her Honour’s judgment was vitiated by bias. The Chief Justice described this argument as untenable. I agree. Her Honour was exercising the judicial power of the Commonwealth conferred by Ch III of the Constitution, but, Mr Priestley also contended that, in some way, the primary judge was bound to recuse herself if she were sitting in the Australian Capital Territory by reason of its Human Rights Act 2004 (ACT). However, that legislation does not apply anywhere else in the Commonwealth and, had her Honour been sitting anywhere else, exercising the jurisdiction of this Court, she would not have been so bound to recuse herself in exercising the judicial power of the Commonwealth.
17. In the third and fourth grounds Mr Priestley seeks to contend that her Honour failed to take into account some case law and considered, what he asserts, was irrelevant case law. Whether or not her Honour arrived at a correct decision may be a matter that can be debated if it arises in the event that the respondents are successful at trial on their applications under s 31A or O 20 r 5, and if her Honour decides to hear those applications. As the Chief Justice urged, it appears that it might be more practicable to deal with the matter on a substantive, rather than interlocutory, basis, since, on the material before him and me (which was not complete) no apparent saving in time or expense would be occasioned.
18. The fifth ground in the draft notice of appeal is that her Honour erred in following a construction of s 31A that had been applied by the Full Court of this Court. Since her Honour was bound to do so that cannot have been an error, at least at first instance. Sixthly, the draft notice of appeal alleges that her Honour made an erroneous finding that O 20 r 5 permits the admission of evidence. The terms of O 20 r 5(3) make that argument untenable. The seventh ground is that her Honour made an erroneous finding that the rules permitted the admission of evidence in a summary dismissal proceeding. As I have said O 20 r 5(3) also makes that argument untenable.
19. The eighth ground was that her Honour made an error in not finding that the Court had been “enticed by Parliament to alter its rules for summary dismissal”. This ground is based on an assertion by Mr Priestley that after the enactment of s 31A, for some reason, the judges of the Court should not have sought to make rules for the purposes of enabling proceedings to be brought under that section. In my opinion that argument is untenable.
20. The ninth ground is that in her earlier decision refusing to recuse herself her Honour erroneously found that s 21 of the Human Rights Act 2004 was not applicable. Mr Priestley has not sought leave to appeal from that decision, as he said, on the basis that a decision of a judge not to recuse himself or herself is not appealable. For the same reasons, that ground should not be allowed to be the subject of a collateral proceeding. In any event I do not see how it arises on the question as to whether or not her Honour arrived at a correct construction of the statutory and constitutional powers underpinning her decision as to the validity of s 31A and O 20 r 5.
21. Tenthly, Mr Priestley claimed that her Honour failed to apply Art 5 of the Bill of Rights 1688 (Imp). The Bill of Rights is an Imperial enactment. It is not an enactment of the Parliament of the Commonwealth. Although it may have expressed certain values that underpin our system of constitutional government as we know it, it is not arguable that the Imperial enactment is able to bind or fetter the power of the Parliament to make laws as provided by the Constitution. Likewise, the eleventh and twelfth grounds rely on Ch 29 of the Magna Carta 1297 (Imp) and the Due Process Acts of the 14th Century (both measures being Imperial legislation). Mr Priestley contended that in some way those foreign laws inhibited the power of the Parliament to enact s 31A. In my opinion, these contentions are untenable, as is the next claim that s 31A was a bill of attainder. Her Honour correctly rejected all of those arguments.
22. The last ground in the draft notice of appeal alleges that her Honour failed to apply Art 14.1 of the International Covenant on Civil and Political Rights. The ground presupposes that this Convention can, again, inhibit the legislative power of the Commonwealth to enact s 31A, or can affect the section’s construction. Again, I am not able to discern any basis upon which that argument has any prospect of success.

SHOULD LEAVE TO APPEAL BE GRANTED?

23. In any event, even if I am wrong in my assessment of the possibility of Mr Priestley succeeding on any of these arguments on an appeal, were it permitted to be instituted now, I am not satisfied that he suffers any injustice at all, let alone a substantial injustice, by having any argument on those issues deferred until such time, if any, as he may seek to challenge the ultimate result of the proceedings which he has brought.
24. The respondents argued that her Honour has not yet decided to hear the matter under s 31A or O 20 r 5 and has not made a decision in their favour under either of those provisions. It may be that when the primary judge hears and determines the matter, her Honour will proceed under one or other of those provisions but, nonetheless, reject the respondents’ case. If that were to happen, Mr Priestley’s points would be moot even if any of them did have any merit. I am not satisfied that there would be any utility to grant leave to appeal given the present state of the proceedings.
25. The principles that govern a grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from the refusal of a grant of leave to appeal: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. For the reasons given above, I am not satisfied that there is any sufficient doubt attending the correctness of her Honour’s decision that s 31A and O 20 r 5 are valid. Nor am I satisfied that any injustice, let alone substantial injustice, will be done to Mr Priestley by refusing leave to appeal at this stage.
26. I would endorse what French CJ said in Priestley 251 ALR 619 [36] that all the parties should consider whether they should proceed directly to have the applications for substantive relief heard and determined by her Honour. As the Chief Justice observed, “it is questionable, but a matter for the respondents, whether there is anything to be gained by persisting with their motions”. Hopefully after two judges have expressed similar views about this issue, the respondents will take on board the utility in proceeding to a substantive determination of the matter. That course will probably take no more time than their interlocutory motions. However, if their interlocutory motions ultimately fail, much more time will be taken up through the subsequent appellate process and interlocutory procedures.
27. For these reasons I am of opinion that the motion fails and should be dismissed.
    

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 27 February 2009

Applicant:	Appeared in person
Solicitor for the First, Second and Third Respondents:	D O’Donovan, Australian Government Solicitor

Date of Hearing:	23 February 2009
Date of Judgment:	23 February 2009