Ashby v Commonwealth of Australia [2022] FCAFC 77

Federal Court of Australia

Ashby v Commonwealth of Australia [2022] FCAFC 77 Appeal from: Application for extension of time and leave to appeal from: Ashby v Commonwealth of Australia [2021] FCA 40 Application for leave to appeal from: Ashby v Commonwealth of Australia (No 2) [2021] FCA 830

File numbers: NSD 799 of 2021 NSD 806 of 2021

Judgment of: KATZMANN, ABRAHAM AND GOODMAN JJ

Date of judgment: 12 May 2022

Catchwords: ADMINISTRATIVE LAW – where s 65(1) of the Public Governance Performance and Accountability Act 1913 (Cth) (PGPA Act) permits the Finance Minister on behalf of the Commonwealth to authorise acts of grace payments if the Minister considers it appropriate to do so because of special circumstances — where appellant applied under the PGPA Act for an act of grace payment of more than $4.5 million to compensate him for legal costs he incurred in prosecuting an application for relief under the Fair Work Act 2009 (Cth) (FW Act) for adverse action allegedly taken against him by the then Speaker of the House of Representatives for whom he had previously worked and the Commonwealth of Australia who was his then employer – where appellant discontinued the proceeding before trial and entered into a deed of release with the Commonwealth in which he agreed to release the Commonwealth from "all his claims against it" in consideration of the Commonwealth paying him $50,000 in settlement of those claims – where delegate considered there were no special circumstances and decided not to authorise an act of grace payment and appellant applied for judicial review of delegate's decision – whether primary judge erred in dismissing judicial review application and upholding the Commonwealth's application for summary judgment – where instrument of delegation gave delegate the power to consider all applications for act of grace payments but not the power to authorise applications in excess of $50,000, whether delegate lacked jurisdiction to refuse the act of grace payment PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from judgment on judicial review application and for leave to appeal from judgment on FW Act application, whether leave to appeal required and whether it should be granted PRACTICE AND PROCEDURE – where the Commonwealth applied for summary dismissal of the adverse action claim, whether primary judge erred by finding that the claim enjoyed no reasonable prospects of success INDUSTRIAL LAW – where delegate took into account the choices made by the appellant, which primary judge assumed for the purpose of the summary dismissal application could otherwise constitute adverse action within the meaning of s 340 of the FW Act and where s 342(3)(a) provides that "adverse action" does not include action that is "authorised by or under … [a] law of the Commonwealth", whether primary judge erred by finding that s 65 of the PGPA Act was a law of the Commonwealth within the meaning of s 342(3)(a) and the decision of the delegate was authorised by or under the PGPA