Ansell, J.M. v Brewster, D.A.
[1991] FCA 683
•15 Nov 1991
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JUDGMENT No. ........ ...,,,.. - ........ .......- NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY j
1 No. ACT G 61 of 1990 DISTRICT REGISTRY j 1 GENERAL DIVISION 1
BETWEEN: JOAN MARGARET ANSELL
Applicant
AND: DONALD ARTHUR BREWSTER
First respondent
PAUL WILLIAM HICKEY
Second respondent
MARIA LINKENBAGH, BARBARA
BYRNE and JOHN ROWLING
constituting a DisciplinaryAppeal committee
Third respondents
MINUTE OF ORDER
JUDGE MAKING ORDER Neaves J. DATE OF ORDER 15 November 1991 WHERE MADE Canberra THE COURT:
the matter by reason of the alleged lack of Disciplinary Appeal Committee had no jurisdiction in authority in 1ld6 Alfredo Bongi to charge the
applicant with the relevant disciplinary charges.1. Orders that the respondents' motion, notice of which was given on 28 August 1991, be dismissed.
2. Directs that the applicant file and serve, within 7 days from the date of this order, a further amended statement of particulars of the groitnds relied upon, such statement to be confined to the particulars given in par.2 -of the document filed on 4 October 1991 with the addition of such particulars as are appropriate to found an argument that the
3. Orders, pursuant to Order 14, rule 8 of the Federal Court Rules, that the affidavit sworn by the applicant on 30 October 1991 be taken off the file.
4. Directs that the applicant file and serve any further affidavit on which she intends to rely not later than 6 December 1991, that affidavit to be confined strictly to material necessary to support the grounds of.which particulars are given in the further amended statement to be filed and served pursuant to this order.
5. . Directs that the respondents file and serve any affidavits on which they intend to rely not later than 24 January 1992.
6. Directs that the applicant file and serve any affidavits in reply not later than 6 February 1992.
7. Directs that the application be listed for further directions on 7 February 1992.
8. orders that the applicant pay the respondentsr costs of and incidental to the hearing on 1 and 4 November 1991.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA ) i p . ~ L.
AUSTRALIAN CAPITAL TERRITORY j / '.
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No. ACT G 61 of 1990 i:~>;
DISTRICT REGISTRY 1 . p:
1 ; GENERAL DIVISION 1 !..~ ; 1 !.;c
BETWEEN: JOAN MARGARET ANSELL l.,'.. ., '. b:
Applicant f.:,: / 5 c; .
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AND: DONALD ARTHUR BREWSTER . .
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First respondent c,: ,+
v: ...
PAUL WILLIAM HICKEY ..~
8 ' ~.' Second respondent
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MARIA LINKENBAGH. BARBARA i:rr BYRNE and JOHN ROWLING l.: constituting a Disciplinary t.:
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Appeal Committee L ':.
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Third respondents / '.
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m: Neaves J.
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U: 15 November 1991 A . , ~ .
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. . ,; .:. ;i :. <, . , REASONS FOR JUDGMENT
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A little more than twelve months ago, on 30 October 1990, Joan Margaret Ansell ("the applicant") filed in the
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application under the Administrative Decisions (Judicial . -. . ~. : Review) Act 1977 (Cth) ("the Judicial Review Act"). The . . ,.
..?~ . .. ., application was expressed to be an application to review - .- . ,
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(a)
the decision [which appears to have been made on 13 November 19891 of Donald Arthur Brewster ("the first respondent" ) directing that the applicant be dismissed as an officer of the Australian Public Service, being a direction confirmed by a Disciplinary Appeal Committee; and
(b)
the decision [which appears to have been made on 20 December 19891 of Paul William Hickey ("the second respondent') directing that the applicant be dismissed as an officer of the Australian Public Service, being a direction that a Disciplinary Appeal Committee noted as the subject of a notice of appeal yet to be heard and determined.
The application also recited that the applicant was aggrieved by the decision of Maria Linkenbagh, Barbara Byrne and John Rowling constituting a Disciplinary Appeal Tribunal ("the third respondents") confirming the direction of the first
respondent. That decision appears to have been made on 21 September 1990 and notified to the applicant on 2 October
1990. The substantive relief claimed in the application was -
an order setting aside the decision of the third
respondents;
an order declaring that the applicant be re-instated
as an officer of the Australian Public Service;
such other orders as the Court might see fit to
make; and
an order that the respondents pay the applicant's costs of and incidental to the application.
The grounds of the application for an order of review in respect of the decision made by the third respondents were stated in the application to be -
"1. that a breach of the rules of natural justice
occurred in connection with the making of the
decision;
2.
that the persons who purported to make the decision did not have jurisdiction to make the decision;
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3. that the making of the decision was an improper exercise of the power conferred by the enactment in
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pursuance of which it was purported to be made; i': [j: 1:. , >.:
that the decision was induced or affected by fraud."
Although no substantive relief was claimed in
respect of the decisions made by the first and secondg: i." ,.,.. hi .> :. p
. b . respondents, the application stated that the applicant was 1::
1: : aggrieved by those decisions and that the grounds relied upon C '.
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"1. that each person who purported to make the decisions did not have the jurisdiction to make each decision; L . b~ , . : : F L:.. 2.
that the procedures that were required by law to be observed in connection with the making of the decisions were not observed."
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It is clear that, in order to seek substantive relief in l;.< l?;, F. respect of the decisions made by the first and second I ", I ;: v: respondents, the applicant would require an order of the Court K.;
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extending the time within which an application for such relief
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might be made. No such application has been made. In considering any such application, were it to be made, a relevant, if not decisive, consideration would be that the
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applicant availed herself of the statutory remedy to have the f, ,
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. *. .. I .' decisions of the first and second respondents referred to a
I .I.! F: Disciplinary Appeal Tribunal established in accordance with !-.< ! '; the Merit Protection, (Australian Government EmploveesI Act 1984 (Cth) ("the Merit Protection Act") for review on the ,?,i r.,.:~ F-. merits. At all times prior to 30 October 1991, the matter has proceeded on the basis that the only relief sought by the applicant is in respect of the decision of the third respondents made on 21 September 1990.
It is desirable to refer shortly to the series of events which culminated in the decision of the third respondents, events as to which I do not understand there to be any dispute. On 9 August 1989 Ildo Alfredo Bongi, describing himself as an officer authorised by the Secretary of the Department of Employment, Education and Training. for the purposes of s.61(2) of the Public Service Act 1922 (Cth), charged the applicant with a number of disciplinary offences, being offences of failing to fulfil her duty as an officer of the Australian Public Service. A schedule of the charges was prepared in the following terms:
"1. CHARGE A paragraph 56(d)
10 April 1989
2. CHARGES B1 TO B20 paragraph 56 ( f) (i) /section
91fll (el \ ,, 4, 7, 8, 9, 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29 and 30 November; and
1, 2, 8 and 12 December 1988
CHARGES C1 TO C20 paragraph 56(d)
alternative charges to charges
B1 to B204, 7, 8, 9, 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29 and 30
November; and
1, 2, 8 and 12 December 1988
3. CHARGES D1 TO D20 paragraph 56(f)(i),
regulation 13(f)
4, 7, 8, 9, 14, 15, 16, 17, 18,
22, 23, 24, 25, 28, 29 and 30
November; and 1, 2, 8 and 12
December 19884. CHARGE E paragraph 56(f)(i),
regulation 13(f)
10 April 1989"
The paragraph, section and regulation references are references to provisions of the Public Service Act and ~e~ulations. The dates shown on the schedule are the dates on which the disciplinary offences charged were alleged to have occurred.
An inquiry into the charges pursuant to s.62 of the Public Service Act was held by the first respondent. He expressed his conclusion in terms that the applicant was guilty as charged and directed that she be dismissed as an officer of the Australian Public Service. His decision is dated 13 November 1989.
From that decision the applicant, by letter dated 27 November 1989 signed by her then solicitors, appealed to a Disciplinary Appeal Committee on the grounds that each charge should have been dismissed and that the action directed in relation to each charge was unduly severe.
On 19 April 1989, the applicant had been summarily
convicted in the Magistrates Court of the Australian Capital
Territory of certain criminal offences. In relation to each
offence a pecuniary penalty was imposed with the rider that, in default of payment, the applicant was to be imprisoned until the rising of the Court. Action was then taken under s.63(1) of the Public Service Act by the second respondent resulting in a further direction that the applicant be dismissed from the Australian Public Service. That direction appears to have been given on 20 December 1989.
From that decision an appeal to a Disciplinary Appeal Committee was lodged on 3 January 1990.
The appeals from the directions given by the first and second respondents came before the Disciplinary Appeal Committee constituted by the third respondents on 28 June 1990. By consent, the Tribunal proceeded to hear the appeal in respect of the direction given by the first respondent that the applicant was guilty of the disciplinary offences identified in the schedule referred to above as charges B, C and D. The Tribunal confirmed the direction given by the
against the direction given by the first respondent in so far first respondent. There has been no hearing of the appeal as it was based on his finding that the applicant was guilty of the disciplinary charges identified as charges A and E or of the appeal against the direction given by the second respondent.
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The application under the Judicial Review Act was listed for a directions hearing on 7 December 1990.
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occasion, as on each occasion on which the application was before the Court prior to 4 October 1991, the applicant appeared in person. The applicant informed the Court that "the scope of the case was enormous" and that she would require "manq! months" to prepare and file the affidavit material upon which she intended to rely. She indicated that on the hearing of the application she wished to place before the Court material relating to her employment in the Australian Public Service extending over a long period. The applicant was asked, inter U, to state the basis upon which it was contended that the decision of the third respondents was induced or affected by fraud but she was unable to do so. The nature of a proceeding under the Judicial Review Act was explained to the applicant and the Court gave the following directions:
"The Court -
(i) directs the applicant to file and serve on the respondents not later than 31 January 1991 full particulars of the grounds on which the applicant relies and in particular to give full
particulars of the fourth ground of the application in relation to the third respondents; (ii) gives notice to the applicant that unless those particulars are filed and served by that date, ground 4 in relation to the third respondents will be struck out when the matter comes before the Court on 8 February 1991;
(iii) adjourns the matter until 8 February 1991, informs the applicant that on that date further directions will be given setting out a timetable within which the applicant is to file and serve affidavits on which she intends to rely and indicates to the applicant that the time fixed for filing those affidavits is likely to be one month from 8 February 1991;
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( iv) adjourns for further consideration on 8 .~ il
February 1991 the application by the . . Commonwealth to be joined as a respondent to 1,:; the application."
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On 18 December 1990, the applicant gave notice of a motion for orders that the orders made on 7 December 1990 be
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. .. vacated and that the applicant file and serve her affidavits ,-. ... by 30 June 1991 and for such further or other orders as to the . -. Court might seem fit. The motion was supported by an
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affidavit sworn by the applicant on 18 December 1990. , ., . . The. motion was heard on 21 December 1990. The applicant informed the Court that she did not intend to
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. ~ :... [ ,'. proceed with the fourth ground of the application in relation !.l$, ;:<: to the third respondents, namely the ground that the decision of the third respondents was induced or affected by fraud. The Court vacated the orders made on 7 December 1990, ordered that the application dated 30 October 1990 be amended by ... l . v... I . ~ i; ; deleting par.4 of the grounds relating to the third i-;r ,. v . b ... p
respondents and directed that the applicant file and serve by i _l L- .., + .,
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5 April 1991 particulars of the grounds of the application and [' l:: r-:; any affidavits on which she intended to rely. The application
I < ; ! was adjourned for a further directions hearing on 5 April i, ;
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v. L. .,: The applicant failed to comply with the directions as to the filing and serving of particulars and affidavits and
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. . f!;. 1~1.. ,.. on 5 April 1991 the time within which the particulars were to 15% p be filed and served was extended to 26 April 1991. A
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direction was also given that the affidavits on which the ....
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applicant intended to rely be filed and served not later than r 1.'
: : 1 . k-. 31 May 1991. The application was adjourned until 7 June 1991. t :
.. P . : 1 On .26 April 1991, the applicant filed a document described as "Particulars". The document was quite
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I; (l unsatisfactory. It was discursive in the extreme, extending 1-3 over 26 pages. It referred in some detail to various events
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during the years 1974 to 1990 most of which could have no t
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conceivable relevance to the application. It could not C
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properly be described as a document giving particulars of the I i grounds upon which the application was founded. 1 I l i The applicant also prepared a lengthy document dated 30 May 1991 setting out her explanation why it had not been
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possible to comply with the direction that the affidavits on !: which she intended to rely be filed and served by 31 May 1991. i The applicant's approach is exemplified in pars 10, 11, 17 and
I> i 18 of that document, those paragraphs being in the following i
terms : 1 I
"10. In order to convey my opinion of the attacks on my capacities and character I assert that these attacks i
go back surprisingly far in. time and are 1 I extraordinarily broad in scope; I assert that they are misconceived and mischievous and characteristically marked by mendacity and distortion; while I believe that genuine ignorance at times is a [sic] element in them I assert that they are intentionally deceptive and employ omission and selectivity and unwarranted and vague generalisations; I assert that they have often followed threats and/or warnings; and I assert that they have to a very marked extent concealed provocation of myself - at the same time not only
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representing my reaction as spontaneously ., -. ... unacceptable conduct but mis-reporting it. ..~, '.: 11. The whole process of attack has been most intricate as well as pervasive and it is incumbent upon me to
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reveal the ways in which I assert that falsity has replaced reality in most unusual and challenging circumstances.
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17. Realising that the affidavit draft is not suitable to be modified for Court I have begun a draft
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affidavit based on documentation and notes and . . recall of other events beginning in 1987: realising that I would not be able to cover all events from v . 1974, the year of my first association with the 'i- ... Australian Public Service as my employer, before 31
. .. May 1991, I began the 1987 draft in the hope of I--- being able to cover the period 1987 to 1991 by ,+: acceptable affidavit - but the task proved
: ... impossible. My estimate of being able to cover ... events for an acceptable affidavit is six weeks
taking into account other life demands.. .
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18. With this statement I present the unedited draft affidavit for 1987 as evidence of my having begun
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the task of completing an affidavit sufficient to !.i forming an appropriate basis for argument."
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The "draft affidavit for 1987" comprised 61 pages. It gave, in [X
: . 1 5 8' ' considerable detail, a chronological account of events that ::I F; 1-2 f;;f occurred in 1987, those events, again, having no obvious r : k::,
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relevance to the issues arising upon the application under the :
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Judicial Review Act. T.:;
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. : t :{ . l The application did not come before the Court on 7 June but on 14 June 1991. On that date, over the objection of ,. !'
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, . counsel for the respondents, the application was further E': 1:. r .!. k:?, ,... adjourned until 2 August 1991. The applicant was informed l:,!: f,.?.
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p. .. . . X : g.. filed and served long before that date. The applicant was ? . +.-: ;:.;, F' v .~
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advised that the affidavit need not be lengthy but should set
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out details of the disciplinary offences that were laid against her and have annexed to it the decision of the first respondent, the notice of appeal to the Disciplinary Appeal
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Tribunal, the transcript of the proceedings before that
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Tribunal, the exhibits received by the .Tribunal, the decision
of the Tribunal and the reasons given for such decision. It c ~< was also suggested that the affidavit should deal with any material going to the jurisdiction of the Tribunal to hear the lj:: j.:. l',.!. appeal.
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b; , On 2 August 1991, the application was further adjourned until 6 September 1991, the applicant informing the
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. . .Li Court that she had an outstanding application for legal aid ... ~. . . 1.:' with the Legal Aid Commission of Victoria. That application I .. was, in the event, unsuccessful. i .,, I:' i:'
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On 28 August 1991, the respondents gave notice that
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on 6 September 1991 they would move the court for orders -
"1. pursuant to Order 10 Rule 7 [of the Federal Court Rules], there having been a failure to comply with
the orders of the Court given on 5 April 1991 and 17 k:' . f [sic] June 1991 that the Applicant file and serve i'j: *, any affidavits on which she intends to rely, that
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2. that the Applicant pay the Respondents' costs." [;j
.. ;f .; $: , . On 6 September 1991, the application and the motion
for dismissal were adjourned until 4 October 1991. Up to this
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time the applicant had failed to file and serve proper 1" F; I .>'
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particulars of the grounds upon which she relied and had
failed to file affidavits in support of the application. ... .
. . . The applicant was informed, on more than one occasion, that the issues raised by her application did not
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L; S, permit the Court to embark on a wide ranging inquiry il ~.:, concerning her many grievances, the only issue being whether .;
:. -. the proceedings which had culminated in the decision of the I,:
. . .<~ third respondents confirming the direction of the first .< .
. . .P -:; respondent that she be dismissed from the Australian Public ~ . .
.,..Service had been conducted according to law. On 6 September . . . . 1991, the applicant was again advised as to the material with 1'2 .-..
I<' , , which the affidavit should deal. To assist the applicant in L'.< k;. this regard, the respondents agreed to make a copy of the ,. ...
" * ;l, ... ,: relevant material available to her. According to the b.:; j. ,-:
. L : applicant, the documents were received by her on 27 September ; :. , , l :, r.:' 1991. i., '
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Upon receipt of that material, the applicant k-,; < ., ~.
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retained MSC Legal Services of Melbourne to act for her in the , .:. i . 1 :. r .. proceeding and that firm instructed counsel to advise in l.,.'
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On 4 October 1991, particulars of the application 1-
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and an affidavit sworn by the applicant on that day were filed m !I . .> k;: and served. The particulars made plain that relief was sought P '
i'. . , v p only in respect of the decision of the third respondents made . ::.:
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[L? P. 1 .: :. . E. L.. on 21 September 1990 and that the only grounds relied upon
were -
(a)
that the Disciplinary Appeal Tribunal had no jurisdiction to make the decision as it had not been properly constituted in that one of its members, Barbara Byrne, had not been nominated in accordance with the relevant legislative provisions;
(b)
that the Tribunal had failed to make a decision in relation to the direction given by the second respondent on 20 December 1989; and
(c)
that the Tribunal took account of irrelevant considerations in reaching its decision to confirm the direction given by the first respondent on 13 November 1989.
The affidavit set out material relevant to the resolution of those issues.
When the application came before the Court on 4 October 1991, the applicant was represented by Mr N. Jones of the Victorian Bar. Upon being assured by counsel that the affidavit sworn by the applicant on 4 October 1991 contained
all the material on which the applicant intended to rely in support of the grounds relied upon, the Court gave the following directions -
"(1) That the respondents file and serve any affidavits on which they intend to rely not later than 18 October 1991;
(2) That the applicant file and serve any affidavits in reply not later than 25 October 1991;
(3) That the matter be adjourned until 1 November 1991 for further directions;
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(4) That the parties have liberty to approach the District Registrar with a view to fixing a date for
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the hearing." .. ,
The respondents did not file any affidavits by 18 October 1991 and have not as yet done so.
On 30 October 1991, the solicitors for the applicant
forwarded two documents to the Court and the respondents'
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solicitor by facsimile process. One was headed "Amended t: 1.: Particulars Filed 30 October 1991". The other was an
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affidavit sworn by the applicant on that date. ,. . . .
. . I:. The document headed "Amended Particulars Filed 30 October 1991" proceeds on the basis, contrary to the whole
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.r' i. . *:. history of the matter and to what had been expressly stated on 1,: L' ;k-, f;> 4 October 1991, that the application seeks relief in respect I &,: E-. of the decision of the first respondent made on 13 November
C < . ~ !J\ 1. ?. 1989 and the decision of the second respondent made on 20 L~?.. :.,-7. t.;, December 1989. The document makes no reference to the
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circumstance that an extension of time would be necessary to C1
F' ' ' F enable proceedings to review those decisions to be brought. c .-c
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No material in support of such an extension of time has been p>
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It appears from the document that, in relation to the direction given by the first respondent, the applicant now
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(a) that the charges into which the first respondent was inquiring were not validly laid as Mr Bongi, who purported to lay the charges, was not authorised to do so; and
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. .[:: l , (b) that the first respondent had not determined facts necessary to support his conclusion that the
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applicant had failed to fulfil her duty as an b - F:. officer .
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It further appears from the document that, in relation to the direction given by the second respondent, the
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, - applicant now wishes to contend that the second respondent was
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I . . : L . not authorised to carry out the inquiry upon which he embarked i,..
. ? : l and that he failed, before giving the direction which he did,
5 .>, to form the opinion that he was required by s.63(l)(b) of the Public Service Act to form. . . i"; j: " C'.; In relation to the decision of the third respondents, the document proceeds on the basis that the
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. . , . :? .., challenge based upon the contention set out in the particulars
'; l , l given on 4 October 1991 that Barbara Byrne had not been ,. nominated to the Disciplinary Appeal Committee in accordance p
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with the relevant statutory provisions is no longer being -
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pursued. An entirely new basis upon which it is sought to l:. ,,. attack the decision of the third respondents is formulated. ..~ This ground is that a reasonable person or fairminded observer l :. I '.
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.-, : would have had a reasonable apprehension of bias on the part L' t '. i" of another member of the Disciplinary Appeal Tribunal, John b . F:. Rowling. The particulars given of this ground are set out in F; pars 5(b) and (c) of the document in the following terms:
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"(b) Rowling was a subordinate of Mr Hickey at the time at which he was nominated by the Secretary and/or at the time at which he participated in the Disciplinary Appeal Committee. This situation, if within the knowledge of a reasonable person, might have led that person to conclude that the Applicant was not receiving or not likely to receive a fair and unbiased hearing.
(c) In the circumstances it was unlikely that any reasonable person or fairminded observer could conclude that Rowling could totally free himself of the views of Mr Hickey or the Department in his functions as a member of the Disciplinary Appeal Committee."
The reference to Mr Hickey is, of course, a reference to the second respondent. It is common ground that no objection was taken at the time to M r Rowling being a member of the Disciplinary Appeal Committee.
The document repeats the particulars given on 4 October 1991 of the ground that the Disciplinary Appeal Committee took account of irrelevant considerations. It also repeats that the third respondents' failed to make a decision in respect of the applicant's appeal against the direction
were required to do by s.43 of the Merit Protection Act. In given by the second respondent, it being asserted that they addition, it is asserted that there were no valid directions against which appeals could have been brought by the applicant.
The affidavit sworn by the applicant on 30 October
1991 consists of some 212 paragraphs. It traces much of the
applicant's history in the Australian Public Service from
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February 1975 onwards. It will be recalled that the earliest I.' of the disciplinary offences with which the Disciplinary
[; 1 - . . Appeal Committee was concerned was alleged to have occurred on . # '
; 1 ; 4 November 1988. The affidavit is not confined to factual I -. matters and contains argumentative material. The only i; L-2: references to the second respondent are in relation to the ... action taken by him under s.63 of the Public Service Act
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F; .. , consequent upon the conviction of the applicant in the 12 Magistrates Court of the Australian Capital Territory on 19
P . ~ , April 1989, those convictions relating to matters having no i; ; I:"
: ; 1 relation to the matters the subject of the direction given by ?,I the first respondent on 13 November 1989. The affidavit refers to Mr Rowling only in par.204 where he is simply 1;: :
1.:; ,:;< referred to as being a member of the Disciplinary Appeal . . ~ . .
. , Committee convened to hear the applicant's appeals and in .: L:; par.212 which reads as follows: 1: (,, (.. 7:.
"The DAC could to a reasonable observer have appeared ;*..:, i. > biased in that it included a subordinate of Mr Hickey ..
L: ; when it was required to adjudicate on directions made by r:' Mr Hickey in circumstances where it was not likely that Mr Rowling was unaware of my previous grievances or of Mr 1,: Hickey's view and attitude of me." I? .. .
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No facts are stated in the affidavit as a foundation for what 1.' l.$ is said in that paragraph.
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. . . . The matter came before the Court on 1 November 1991 and was adjourned until 4 November 1991. On both those dates,
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. .. > , .. the applicant was represented by Mr C. Wallis of the Victorian :
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. ..., *i :- Counsel for the applicant sought to have the particulars furnished on 4 October 1991 replaced by the
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amended document to which reference has already been made. 1: This was opposed by counsel for the respondents who also moved to have the proceeding dismissed under Order 10, rule 7 of the
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Federal Court Rules pursuant to the notice to that effect .V, ~ . . . .
given on 28 August 1991. Counsel for the respondents also . S> . r ' 5 -
raised various objections to the affidavit of the applicant -. . -i
. , . sworn on 30 October 1991. - 1. ; :
It is convenient to deal first with the motion that h;
/I. . % . ~
the proceeding be dismissed. Counsel for the respondents drew h L.; .l
attention to the circumstance that twelve months had elapsed 1 since the application was filed and that three years had c; 2 . :
' - . . .. :. elapsed since the conduct of the applicant the subject of the , I. ,.
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disciplinary charges. He referred to the number of occasions !:. , .. I i t~~
on which the Court had given directions to the applicant with 1. *. :,. v. ,. i . which directions the applicant had not complied. He submitted ,,.- I,: t..: that the applicant had demonstrated that she was not F: ; 1 : interested in having the matter brought to a hearing within a F 1; k
reasonable time but was concerned only to delay the matter. ,?. I l;..
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While some latitude was properly to be afforded to a litigant l.;, i. in person, the applicant had now been legally represented for i j: some time. While the fact that she was legally represented might have been expected to have advanced the matter, this had
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I .: . .. . , . . > . . ,~'. . , . K:
b. ; -. l.,: i '
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not occurred. The most recent affidavit of the applicant was not in compliance with the directions given by the Court and represented yet another attempt to further delay the matter. The Court should conclude, so it was submitted, that the
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applicant had demonstrated an inability or unwillingness to L: : 1; . l '. l ' cooperate with the Court and the respondents in having the 1 -
matter prepared for trial. Ift.:~ *P .L I-
F:. c , ; There can be no doubt that, up until the directions hearing on 4 October 1991, the conduct of the matter by the
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l.\>.: .,/ applicant was most unsatisfactory even allowing fdr the fact [.r
p ,:- that she was not legally represented. She either could not,
:p;. . r ..~ or would not, appreciate the limited role which this Court has 1:'
in proceedings under the Judicial Review Act. She was clearly . . , '
intent on having the Court review on the merits not only the
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matters that were the subject of determination by the 1. Disciplinary Appeal Committee but also the various grievances, 1.- [;, real or imagined, in relation to her career in the Australian I.;
: 1 '
Public Service. Nevertheless, having regard to what was said : ; 1
jh
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by a Full Court of this Court in Leniiamar Ptv Ltd v. m 1 ;i i.; 1, 1AdvancesI Ltd (1990) 98 ALR 200 at pp.206-209, I am of F.;
; : : 1 ; opinion that I should not dismiss the application. MY :,:, P,'? I?: substantial reason for taking that course is that, whatever
F: <.. .. ,/:S default may have occurred prior to 4 October 1991 in complying
L>.' 1 ! ; with the orders of the Court, the position was cured on 4
6, ... October 1991 when the Court was assured by counsel for the
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applicant that the matter was ready to proceed, so far as the
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applicant was concerned, upon the affidavit then filed and ~.. upon the grounds identified and 'particularised in the document
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of that date. ; : 1 .;, L) .. :
. . . .... ... " It remains to consider what should be done in relation to the application to amend the particulars and in
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.
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. ,. , ' i .,. , relation to the affidavit sworn by the applicant on 30 October. ' : ; t:. 1 : : F , 1991. : . : ; :: F: j l:: 1:. c;, No sufficient foundation has, in my opinion, been laid to justify leave being given to amend the particulars
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furnished on 4 October 1991 in the manner proposed. I have , .'?
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already referred to the circumstance that an extension of time l.;. 1: .~. ;: C ; k: , within which to seek an order of review would be necessary in i i--,
respect of the decisions made by the first and second F.. , 1. C.- respondents and to the further circumstance that the
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: 1 ; ; applicant's appeal to the Disciplinary Appeal Committee E .? L<.: t-i' .- against the decision of the second respondent remains pending. 13% iJ. t - , '
Nor do 'the proposed amended particulars provide any proper L, : ,,v .... , ,(.l basis for the allegation of apprehension of bias on the part l . . , . of Mr Rowling. Nothing that was put to me by counsel for the applicant satisfies me that there is an arguable case of !?.
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~. . ?..C> !-.;
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: f- ; apprehension of bias. On the material before me, such a ;.. i..: suggestion is extravagant or far-fetched (cf. Stollen v. ?L.., . , Grevhound Racina Control Board (1972) 128 C.L.R. 509 at ! . ' (l:
. : E.; a .- ;l C.; 1 : I l .:.: *~ L .' c-'; 8 . .: k: * ./ !I v; pp.517-9). I am also of opinion, although the matter was referred to in the particulars given on 4 October 1991, that the applicant should not be permitted to raise the question, referred to in par.6(b) and (c) of the proposed amended particulars, that the Disciplinary Appeal Committee failed to make a decision upon the applicant's appeal against the direction given by the second respondent. The applicant should not be permitted to raise that matter as the procedure followed by the Disciplinary Appeal Committee was a procedure to which the applicant consented. It would, however, in my opinion be appropriate to permit the applicant to amend the particulars furnished on 4 October 1991 to enable the ground that the third respondents did not have jurisdiction to make the relevant decision to be supported by an argument based on an alleged lack of authority in Mr Bongi to charge the applicant with the relevant disciplinary offences.
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Counsel for the respondents objected to the affidavit sworn by the applicant on 30 October 1991 on the ground that it consisted almost exclusively of material that was irrelevant to any issue properly raised in the proceeding, that a good deal of it was argumentative and that substantial parts of it were objectionable in form. Counsel for the applicant conceded that a number of the paragraphs could not
be sustained as a matter of form. He was unable to satisfy me
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of the relevance of the greater part of it. . . I agree with the criticism directed at the affidavit by counsel for the respondents.
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I do not propose to examine . . :t ".
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it paragraph by paragraph to see whether any paragraphs might ,,,, -. be permitted to stand. Considered overall, it is, in my
~. . ' / opinion, oppressive and I order, pursuant to Order 14, rule 8
of the Federal Court Rules, that it be taken off the file.
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! . : i 1: i,.: I direct that the applicant file and serve, within 7 days from the date of this order, a further amended statement
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of particulars of the grounds relied upon. That document is I.:'
! + 1 :. to be confined to the particulars given in par.2 of the 1.. /:. ; 1 document filed on 4 October 1991 with the addition of such 1.; . . particulars as are appropriate to found the argument concerning M r Bongi's authority to charge the applicant with the disciplinary offences dealt with by the Disciplinary Appeal Committee. I further direct that the applicant file
and serve any further affidavit on which she intends to rely not later than 6 December 1991, that affidavit to be confined strictly to material necessary to support the grounds of which particulars are given in the further amended statement to be filed and served pursuant to this order. The respondents are to file and serve any affidavits on which they intend to rely not later than 24 January 1992. The applicant is to file and serve any affidavits in reply not later than 6 February 1992 and the application is to be listed for further directions on 7 February 1992. In all the circumstances, it is, I think appropriate that the applicant pay the respondents' costs of and incidental to the hearing on 1 and 4 November 1991 and I so order.
I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves .
U Associate
Dated: 15 November 1991
Counsel for the applicant : Mr N. Jones and Mr C. Wallis
Solicitors for the applicant : MSC Legal Services
Counsel for the respondents : Mr C. Erskine
Solicitors for the respondents: Australian Government
Solicitor
Date of hearing : 1 and 4 November 1991 Date of judgment : 15 November 1991
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