Caldwell, Peter James v Smith, William John

[1983] FCA 355

Re: PETER JAMES CALDWELL
And: WILLIAM JOHN SMITH (1983) 79 FLR 102
No. ACT G81 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Northrop(1) and McGregor(1) JJ.

CATCHWORDS

Administrative Law - Commonwealth Public Service - Disciplinary Proceedings - Application for extension of period in which to appeal - Whether such application can be considered when lodged after expiry of appeal period - Discussion of discretion to grant application.

Administrative Decisions (Judicial Review) Act 1977 s.5

Public Service Act 1922, Pt. III Subdivision 6C

Public Service Regulations, regs. 140,141.

Administrative Law - Commonwealth Public Service - Disciplinary proceedings - Application for extension of period in which to appeal - Whether such application can be considered when lodged after expiry of appeal period - Discussion of discretion to grant application - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Public Service Act 1922 (Cth), Pt III Subdiv 6c - Public Service Regulations, regs 140, 141.

HEADNOTE

On 23 March 1983 the appellant was found guilty of a charge brought pursuant to s 61 of the Public Service Act 1922 (Cth) of having failed to fulfil his duty as an officer within the meaning of s 56 of the Act.

Notification of the reasons for this decision was given to him the same day and he was informed of his rights to appeal to the Disciplinary Appeal Board under s 63 D of the Act, the appeal to be lodged within fourteen days.

No appeal was lodged but by a document dated 8 April 1983 the appellant applied for an extension of time in which to lodge his appeal.

His application was refused and he applied for an order of review of this refusal under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The application was dismissed and an appeal was brought to the Full Court of the Federal Court.

The appeal raised the question whether the Director has power under reg 141(2) to extend the period of fourteen days referred to in reg 141(1) in which an appeal under reg 140(1) may be made to a Disciplinary Appeal Board when the application for that extension is made after the expiration of that period of fourteen days. The appeal did not raise issues relating to how the discretion conferred by that power should be exercised or the matters that should be taken into account by the Director in the exercise of that power if it existed.

Held: (1) Under reg 141(1) there can be one period only within which an appeal may be lodged. It follows, therefore, that the further period must have been determined before the expiration of the first fourteen days of that period. In other words, a further period cannot be determined after the expiration of the fourteen day period first mentioned in that subregulation. The power to grant the further period is limited to the granting of a further period which the grantee of the power considers reasonable. There is no restriction imposed on the exercise of that power in relation to there being reasonable grounds for the granting of the further period.

(2) Two express limitations are imposed on the exercise of the power conferred upon the Director in determining an application under reg 141(2). Before the Director can grant the application, he must form the opinion that there is reasonable ground for the extension of the period. If he forms that opinion, then he has the power to extend the period, being the fourteen day period or further period referred to in reg 141(1) "by such further period" as he considers reasonable. The use of the words "by such further period" suggests that where an extension is granted under reg 141(2), that further period need not form part of or be an extension of a period referred to in reg 141(1).

(3) It would seem that an officer could only make an application for the extension of a period provided for by reg 141(2) where, on reasonable ground, he had not lodged his appeal within a period specified in reg 141(1).

(4) An application under reg 141(2) for an extension of a period in which to lodge an appeal can be made after the expiration of a period referred to in reg 141(1) and where an application is so made the Director is under a duty to exercise the power conferred by reg 141(2) and to determine whether to grant the application or not.

(5) An application under reg 141(2) is not an appeal and cannot be treated as an appeal within the meaning of s 62(10)(a), Public Service Act 1922 (Cth).

(6) Appeal allowed.

The material necessary to support an application for an extension of time and the matters to be taken into consideration by the Director considered.

HEARING

Sydney, 1983, November 2; December 2. #DATE 2:12:1983

P Shiels, for the appellant.

P Hastings, for the respondent.

Cur adv vult

Solicitors for the appellant: Pamela Coward & Associates.

Solicitor for the respondent: B J O'Donovan, Commonwealth Crown Solicitor.

MPS

ORDER

1. The appeal be allowed.

2. The orders of the Court made on 31 August 1983 be set aside and in lieu thereof it be ordered that the application by Peter James Caldwell to the Director, Grievance and Appeals Bureau of the Public Service Board be remitted to the said Director to be dealt with according to law.

The said Director pay to Peter James Caldwell his costs of this appeal and of the proceedings before the Federal Court constituted by a single Judge.

JUDGE1

This is an appeal by Peter James Caldwell against a decision of 31 August 1983 by a Judge of this Court upon an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act"). The respondent to the appeal is WILLIAM JOHN SMITH, Director, Grievance and Appeals Bureau of the Public Service Board (the "Director").

On 23 March 1983 Mr. Caldwell was found guilty of a charge brought pursuant to s.61 of the Public Service Act 1922 (the "Act") of having failed to fulfil his duty as an officer within the meaning of s.56 of that Act. A direction was given under sub-s.62(6) that a sum of forty dollars was to be deducted from his salary and notification of the reasons for this decision was given to him on 23 March 1983. He was also then advised of his rights to appeal to the Disciplinary Appeal Board under s.63D, the appeal to be lodged within fourteen days.

By 6 April 1983, when the period of fourteen days had expired, no appeal had been lodged. By a document dated 8 April 1983, Mr. Caldwell purported to apply pursuant to sub-reg. 141(2) of the Public Service Regulations for an extension of time to 11 April 1983 in which to lodge an appeal against the decision notified to him on 23 March 1983. By letter dated 15 April 1983 and received by him on 18 April 1983, he was informed that under reg. 141, an appeal must be lodged within a period of fourteen days after the date on which he had been furnished with the particulars of reasons for disciplinary action, that any application for extension of the period during which the appeal might be lodged could only be considered if a request for extension was received within the fourteen day period; that there was no discretion to vary that time. His application for extension was refused. It was against this refusal by the Director that Mr. Caldwell applied to a Judge of this Court under the Judicial Review Act. His application having been dismissed, he appealed to the Full Court.

The appeal raises the question whether the Director has power under sub-reg. 141(2) to extend the period of fourteen days referred to in sub-reg. 141(1) in which an appeal under sub-reg. 140(1) may be made to a Disciplinary Appeal Board when the application for that extension is made after the expiration of that period of fourteen days. The appeal does not raise issues relating to how the discretion conferred by that power should be exercised or the matters that should be taken into account by the Director in the exercise of that power if it exists.

Part III of the Act is headed "The Australian Public Service", and Division 6 of that Part is headed "Discipline". Subdivision C of Division 6 is headed "Officers included in the Second, Third or Fourth Division" and comprises eleven sections numbered 61 to 63H inclusive. Section 61 contains provisions for disciplinary action to be taken against an officer who is believed to "have failed to fulfil his duty as an officer". The meanings to be given to the phrase "have failed to fulfil his duty as an officer" are contained in s.56. Section 62 makes provision for what is to be done "where an officer is charged with misconduct under section 61". An inquiry is to be held but a formal hearing is not required; see sub-s. (3). Where the officer holding the inquiry is satisfied that the officer charged has failed to fulfil his duty as an officer, sub-s. (6) empowers him to impose a penalty on that officer, the penalty ranging from counselling to making a recommendation that action be taken to dismiss the officer from the Service.

Sub-section 62(10) is of importance and is set out in full:

"62.(10) A direction under this section in respect of an officer takes effect -

(a) if the officer appeals against the direction - upon the lapsing or withdrawal of the appeal or upon a Disciplinary Appeal Board confirming the direction; or

(b) in any other case - upon the expiration of the period within which the officer may appeal to a Disciplinary Appeal Board against the direction, but not otherwise."

Section 63D contains provisions relating to appeals against "a decision in respect of an officer". In that section, that phrase is to be read as a reference to a direction given in respect of the officer under para. 62(6)(a) or 63(1)(c) or a recommendation made in respect of the officer under para. 62(6)(b) or 63(1)(d). The recommendation referred to relates to a recommendation that the Public Service Board take action to dismiss the officer from the Service. Sub-section 63D(2) is set out in full:

"(2) An officer may appeal to a Disciplinary Appeal Board against a decision made in respect of him -

(a) if the decision relates to a charge of misconduct - on either or both of the following grounds:

(i) that the charge should have been dismissed; or

(ii) that the action directed or recommended to be taken in relation to the charge is unduly severe; or

(b) in any other case - on the ground that the action directed or recommended to be taken in respect of him is unduly severe."

In the present case, the decision made came within para. 63D(2)(a). Sub-section 63D(3) empowers the Disciplinary Appeal Board to hear the appeal and the Board is empowered to "confirm, vary or set aside the decision against which the appeal is made". Where the decision appealed from is varied so as to direct the taking of action of a kind referred to in para. 62(6)(a), the direction takes effect in respect of the officer immediately it has been given; see sub-s. (4). A Disciplinary Appeal Board is required by sub-s. (7) to give written reasons for its decision on the appeal.

Section 63E makes provision for the constitution of Disciplinary Appeal Boards but the Act does not contain express provisions specifying how an appeal to a Disciplinary Appeal Board is to be instituted. Under para. 97(1)(g), the Public Service Board, with the approval of the Governor-General, is empowered to make regulations, not inconsistent with the Act -

"(g) for regulating the manner in which, and the time within which, appeals may be made to a Disciplinary Appeal Board;"

Regulation 140 is short and is set out in full:

"140.(1) An appeal to a Disciplinary Appeal Board under section 63D, 63F, 63P, or 66B of the Act shall be made in writing and addressed to and lodged with the Director.

(2) An appeal to a Disciplinary Appeal Board under sub-section 63D(2) or 63P(1) of the Act shall specify the ground or grounds specified in that sub-section on which the appeal is made."

Regulation 141 contains provisions relating to the time within which an appeal may be made. The relevant parts of that regulation are set out:

"141.(1) Subject to sub-regulation (2), an appeal referred to in sub-regulation 140(1) shall be lodged with the Director by delivering it to . . . the Director within the period of 14 days after the day on which the appellant was furnished . . . with the particulars of reasons, . . . referred to in paragaph 62(9)(a) . . . of the Act or within such further period as the person who is required to furnish those particulars of reasons . . . to that appellant considers reasonable.

(2) Where, in relation to an appeal referred to in sub-regulation 140(1), an appellant, or any person on behalf of such an appellant, applies in writing to the Director for an extension of a period referred to in sub-regulation (1), the Director may, if there is reasonable ground for so doing, extend that period by such further period as he considers reasonable.

(3) For the purposes of this regulation, the Director shall, by notice published in the Gazette, nominate a place or places to which appeals may be delivered or posted and to which applications for extension of time may be directed."

In the present case the period of fourteen days within which Mr. Caldwell had a right to lodge an appeal under sub-reg. 141(1) expired on 6 April 1983. As we have earlier remarked, he did not lodge an appeal with the Director on or before that day but applied for an extension of time to appeal on 8 April 1983 and this was refused.

As has been mentioned, by application under the Judicial Review Act Mr. Caldwell sought a review of that decision. The Federal Court dismissed that application. The decision, so it was held, to grant an extension could be made after the expiration of the period referred to in sub-reg. 141(1), but the application for that extension had to be made within that period. It is from that order that Mr. Caldwell appeals to the Full Court.

Under sub-reg. 141(1), an appeal must be lodged within a period specified in that sub-regulation. At the least, that is a period of fourteen days after the day on which the officer against whom the direction has been made was furnished with the particulars of reasons. That period can be lengthened by the person who furnished those particulars of reasons to a period which that person considers reasonable. That person has power to determine what further period is reasonable. Certainly, he could notify the officer against whom the direction has been made of any further period other than the fourteen days within which he could lodge an appeal at the same time as he furnishes that officer with the particulars of reasons. Possibly he could notify that officer separately and subsequently to the furnishing of the particulars of reasons. In any event, under sub-reg. 141(1) there can be one period only within which an appeal may be lodged. It follows, therefore, that the further period must have been determined before the expiration of the first fourteen days of that period. In other words, a further period cannot be determined after the expiration of the fourteen-day period first mentioned in that sub-regulation. The power to grant the further period is limited to the granting of a further period which the grantee of the power considers reasonable. There is no restriction imposed on the exercise of that power in relation to there being reasonable grounds for the granting of the further period. The grantee of the power, of necessity, knows the facts relevant to the making of the direction from which the appeal can be taken.

Sub-regulation 141(2) is an additional remedial provision designed to benefit an officer desiring to appeal against a direction adversely affecting him. The power contained in sub-reg. 141(2) is conferred upon the Director, a person who has not been involved in the disciplinary procedures leading to the making of the direction adversely affecting the officer desiring to appeal. The Director has no prior knowledge of the facts relevant to the making of the direction against which the appeal can be taken. Two express limitations are imposed on the exercise of the power conferred upon the Director in determining an application under sub-reg. 141(2). Before the Director can grant the application, he must form the opinion that there is reasonable ground for the extension of the period. If he forms that opinion, then he has power to extend the period, being the fourteen-day period or further period referred to in sub-reg. 141(1) "by such further period" as he considers reasonable. The use of the words "by such further period" suggests that where an extension is granted under sub-reg. 141(2), that further period need not form part of or be an extension of a period referred to in sub-reg. 141(1).

Since under sub-section 63D(2) an appeal from a decision relating to a charge of misconduct lies only on either or both of the two specified grounds, namely, (i) that the charge should have been dismissed, or (ii) that the action directed or recommended to be taken in relation to the charge is unduly severe, it would generally, if not inevitably, be easier for an officer contemplating an appeal to lodge his appeal within a period referred to in sub-reg. 141(1) than it would be to prepare material within that period to support an application for an extension of that period. Of necessity, that material would need to contain sufficient relevant facts to support a finding by the Director that there was reasonable ground for the granting of an extension. Indeed, if the officer addressed his mind to the matter within that period, it is difficult to see that he could ever establish reasonable ground for applying to the Director for an extension of that period instead of lodging an appeal with the Director. Further, it would seem that an officer could only make an application for the extension of a period provided for by sub-reg. 141(2) where, on reasonable ground, he had not lodged his appeal within a period specified in sub-reg. 141(1).

Accordingly, from a consideration of the words of reg. 141, it is our opinion that an application under sub-reg. 141(2) for an extension of a period in which to lodge an appeal can be made after the expiration of a period referred to in sub-reg. 141(1) and where an application is so made the Director is under a duty to exercise the power conferred by sub-reg. 141(2) and to determine whether to grant the application or not.

Counsel for the Director contended that that construction of sub-reg. 141(2) gives rise to serious and practical difficulties in the management of the Public Service. Under sub-s. 62(10), where no appeal has been lodged, a direction under sub-s. 62(6) takes effect upon the expiration of the period within which an appeal may be lodged. Where no appeal is lodged, a direction may be implemented. When that happens practical difficulties may arise if subsequently an appeal from that direction is upheld. Those difficulties, however, cannot overcome the existence of the power expressly conferred by sub-reg. 141(2). The same difficulties could result where an application under sub-reg. 141(2) is made within a period specified in sub-reg. 141(1) but not granted in favour of the person making the application within that period. Counsel for the Director was conscious of that possibility but contended that an application under sub-reg. 141(2), if made within a period specified in sub-reg. 141(1), should be treated as an appeal under reg. 140 and accordingly by reason of sub-s. 62(10), the direction, the subject of the application for an extension of time, could not take effect. That contention cannot be accepted. An application under sub-reg. 141(2) is not an appeal and cannot be treated as an appeal within the meaning of para. 62(10)(a).

To construe sub-reg. 141(2) in the manner contended by counsel for the Director requires that the relevant part of that sub-reg. should have added to it some such words as "within a period referred to in sub regulation (1)". There is no warrant for that to be done. Without such restricting words, the power conferred on the Director is, so far as the time at which the application is made under sub-reg. 141(2) or the time of the exercise of the power by the Director are concerned, at large.

Of course, the Director in exercising the power conferred upon him by sub-reg. 141(2) will take all relevant matters into account. Particularly he will have to determine whether reasonable ground has been shown and, if so, what further period would be reasonable. In addition, he will bear in mind that the regulations have indicated that in general a period of fourteen days from the furnishing of the particulars of reasons to an applicant is regarded by the regulations as a reasonable time in which an appeal may be lodged. Also, it would be proper for the Director to consider any prejudice to the applicant as well as any prejudice to other persons which results from the circumstances that an appeal was not lodged within a period specified in sub-reg. 141(1). Those matters, however, go to the question of the exercise of the power conferred on the Director and not to its existence.

In our opinion the appeal should be allowed, the order appealed from should be set aside, and the application by Mr. Caldwell to the Director be remitted to the Director to be dealt with according to law. The Director should pay Mr. Caldwell's costs of the appeal and of the hearing before the Federal Court constituted by a single Judge.