Flam asked for my thoughts on the approval timeframes so please see as follows with some additional background information for context...
Ed Husic's decision to officially refuse the two PEP11 applications is under review by Advent. So, what grounds do Advent have to support a new Federal Court case?
1. Apprehended Bias
Like his predecessor, Anthony Albanese has lost this new case before he had Husic hand down the decision. His speech in Parliament on 21st October 2021 not only rendered Albanese biased, but that bias extends to every Labor MP. Ed Husic is required to bring an open mind to the decision making process. The pre-existence of a caucus and shadow cabinet endorsed ALP policy to refuse the PEP11 applications is self-incriminatory. Respected law firm Allens had this to say about bias following the Scomo case:-
The general principles of natural justice include that:
- the decision maker must give those affected by their decision an opportunity to present their case;
- the decision maker must not have actual or apprehended bias (Bias Rule); and
- the decision maker's decision must be based on evidence.
At common law and under the ADJR Act, the test for the Bias Rule extends beyond whether there is actual bias to whether there is an appearance of bias. An appearance or apprehension of bias may occur if, in the circumstances, a fair-minded lay observer may reasonably apprehend that the decision maker may not bring an impartial mind to their decision. This represents the principles that justice must not only be done but must beseen to be done, and that a decision-making process must be fair and impartial.
2. Incorrect and/or Inflexible application of policy
We know from the Federal Court bundle that NOPTA provided their original advice back in April 2020, and that was a recommendation to approve the SEV application. We know from subsequent company announcements that NOPTA re-iterated that advice for both the SEV and SE applications again in October 2023 and December 2024. So given the advice of the regulator, and in the context of the commentary of Allens (above), Ed Husic is required to make his decision based on evidence. Whilst the legislation leaves it "open" for the decision maker to consider finance, the evidence does not support his concerns. The evidence is as follows:-
Year 4 of the work program is estimated to cost $15M.
As at the date of refusal, PEP11 companies held at least $10M in cash.
PEP11 companies have a demonstrated track record of raising capital which is the NOPTA test in the absence of full cash coverage.
NOPTA noted that finance is not a concern.
Therefore, IMO, Advent will argue that the policy has been applied incorrectly, and/or inflexibly.
Their argument will be supported by the Pathfinder precedent, which DISR warned Scomo about, and no doubt warned Husic about too.
Their argument will be supported by precedents on other NOPTA applications.
Their argument will be that a reasonable person would not conclude that Advent lacks the financial capacity to complete it's obligations under the PEP11 Work Program.
Without a corroborating concern, public interest alone cannot be the sole grounds for refusal of the applications.
So what next?
Advent has 60 days from the date of refusal to lodge their appeal. We have the Scomo case, and 45 days to decision case from which we can formulate an approximate timetable, see as follows:-
I have used two potential dates for filing of the new case but these are just hypothetical, the actual filing date is not yet known.
| CASE | Scomo | 45 days |
| New (best) | New (worst) |
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| lodged | 01/06/2022 | 05/08/2024 |
| 01/03/2025 | 17/03/2025 |
| case management hearing | 20/07/2022* | 21/08/2024 |
| 17/03/2025 | 26/05/2025 |
| Respondent to file defence | 5/10/22** | 14/10/2024 |
| 30/04/2025 | 25/08/2025 |
| Discovery | mandatory | 21/10/2024 |
| 01/05/2025 | 02/09/2025 |
| Applicant to file evidence | 30/11/2022 | 28/10/2024 |
| 07/05/2025 | 01/10/2025 |
| hearing | 15/03/2023 | not set |
| TBA | TBA |
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| * this hearing was adjourned to 10/8/22 |
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| ** the court directed the bundle to be provided by 5/10/22 and affidavits to be provided by 2/11/22 |
For me, given the hopeless situation of the Government in respect of their defence, the key date is the date the respondent will be required to file their defence. By that date, the AGS will have determined whether the case can be supported under the model litigant policy. IMO it cannot. So, will the ALP want to expose their own improper conduct? If the LNP are in power by then, will they want to point score by exposing it, just as the ALP did on Scomo despite having no intention of defending the case? If in power, will the LNP simply reverse the Husic decisions and make the case redundant?
So, the key dates are between 30/4/25 and 25/8/25 as to where this case might see an outcome.
https://www.allens.com.au/insights-news/insights/2023/03/federal-court-confirms-the-objective-test-in-assessing-apprehended-bias-by-the-former-prime-minister/
PEP11 Judgement 230214.pdf
Pathfinder decision.pdf
I am not a lawyer.
This is not advice of any kind.
It is just my opinion.
As always, DYOR.
GLTAH
(20min delay)