Ashby v Commonwealth of Australia [2021] FCA 40

Ashby v Commonwealth of Australia [2021] FCA 40

The delegate did not fail to consider the applicant's whistle-blower and public interest claims and was not required by s 65(1) of the PGPA Act to give them separate or greater weight. It was open to the delegate to give determinative weight to other matters, including that alternative non-litigious options were available and that litigation costs were risks for the applicant and his lawyers. The finding that the act of grace approval to Mr Slipper did not influence the litigation, at least before that approval was made, was not irrational, and the materials relied on did not establish any constructive failure to consider evidence that the proceeding was highly political. Section 65(1)...

Jurisdiction
Australia
Judgment Date
29 January 2021
Procedural Posture
Judicial Review Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) Ss 5 and 16 And/or Judiciary Act 1903 (cth) S 39 B Concerning Refusal of an Act of Grace Payment; Separate Fair Work Act Adverse Action Claim Not Determined in This Judgment / Separate Determination of Grounds 1, 3 and 4 of the Amended Statement of Grounds of Judicial Review
Outcome
Grounds 1, 3 and 4 failed; paragraphs 1 and 2 of the originating application, insofar as they depended on those grounds, were dismissed; costs were reserved and remaining parts of the applicant's case were left for further procedural orders or case management.
Legal Topics
['act of Grace Payment' 'judicial Review' 'relevant Considerations' 'procedural Fairness' 'irrationality' 'constructive Failure to Exercise Jurisdiction' 'delegation of Statutory Power' 'whistle Blower Claim' 'fair Work Adverse Action Claim']
['administrative Law' 'employment and Industrial Relations'] ['act of Grace Payment' 'judicial Review' 'relevant Considerations' 'procedural Fairness' 'irrationality' 'constructive Failure to Exercise Jurisdiction' 'delegation of Statutory Power' 'whistle Blower Claim' 'fair Work Adverse Action Claim']

Case Brief

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Procedural Posture

Judicial Review Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) Ss 5 and 16 And/or Judiciary Act 1903 (cth) S 39 B Concerning Refusal of an Act of Grace Payment; Separate Fair Work Act Adverse Action Claim Not Determined in This Judgment / Separate Determination of Grounds 1, 3 and 4 of the Amended Statement of Grounds of Judicial Review

Legal Issues

  1. 1 ["Whether the delegate failed to assess, or insufficiently assessed, the applicant's claim that he was a whistle-blower acting in the public interest." "Whether the delegate's finding that the act of grace approval to Mr Slipper did not influence the litigation was irrational or outside jurisdiction." 'Whether the delegate failed to deal with relevant evidence said to show that the earlier proceeding became highly political.' 'Whether the delegation under which the delegate acted was invalid or impermissibly fettered the exercise of power under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth).']

Ratio Decidendi

The delegate did not fail to consider the applicant's whistle-blower and public interest claims and was not required by s 65(1) of the PGPA Act to give them separate or greater weight. It was open to the delegate to give determinative weight to other matters, including that alternative non-litigious options were available and that litigation costs were risks for the applicant and his lawyers. The finding that the act of grace approval to Mr Slipper did not influence the litigation, at least before that approval was made, was not irrational, and the materials relied on did not establish any constructive failure to consider evidence that the proceeding was highly political. Section 65(1)...

Court Disposition

Grounds 1, 3 and 4 failed; paragraphs 1 and 2 of the originating application, insofar as they depended on those grounds, were dismissed; costs were reserved and remaining parts of the applicant's case were left for further procedural orders or case management.

Orders

  • ['The claims made by paragraphs 1 and 2 of the originating application dated 17 July 2020, insofar as they are reflected in grounds 1, 3 and 4 of the amended statement of grounds of judicial review dated 7 October 2020, be dismissed.' 'The question of costs of and incidental to the above claims and grounds be...