Caldwell, Peter James v Smith, William John

[1983] FCA 216

Re: PETER JAMES CALDWELL
And: WILLIAM JOHN SMITH
No. G20 of 1983
Administrative Law
5 IR 202

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - Public Service - disciplinary proceedings - extension of period within which to appeal - application made after appeal period expired - interpretation of regulation 141 of the Public Service Regulations.

Public Service Act 1922, Div. 6 of Part III

Dunne v. The Nominal Defendant (1954) 71 WN (N.S.W.) 87

New v. The Nominal Defendant (1965) 83 WN Pt. 1) (N.S.W.) 74

Samuels v. Linzi Dresses Ltd. (1981) 1 QB 115

Esso Research and Engineering Company v. Commissioner of Patents (1959) 102 CLR 347

HEARING

CANBERRA

#DATE 31:8:1983

ORDER

1. The application be dismissed.

2. The applicant pay the costs of the respondent of and incidental to the application.

JUDGE1

This is an application under section 5 of the Administrative Decisions (Judicial Review) Act 1977 to review the decision of the respondent in refusing an application by the applicant for an extension pursuant to sub-regulation 141(2) of the Public Service Regulations of the time within which to appeal against a decision under section 62 of the Public Service Act 1922 finding the applicant guilty of a disciplinary offence.

The facts may be shortly stated. On 23 February 1983 the applicant, an officer of the Australian Public Service, was charged under section 61 of the Public Service Act 1922 with having failed to fulfil his duty as an officer within the meaning of section 56 of that Act. The procedures prescribed by the Act were followed and on 23 March 1983 the charge was found proven and a direction was given under sub-section 62(6) that action be taken to cause a sum of $40.00 to be deducted from the applicant's salary. Notification to that effect was given to the applicant on 23 March 1983 when he was also advised that he might appeal under section 63D against that decision, such appeal to be lodged within 14 days from that date. He was further informed as follows:-
"Your appeal must be delivered to one of the attached addresses within the period specified in the attached notice. If you intend to post your appeal as a letter, it must be posted so as to be received by the Director within that period. However, you may apply in writing to the Director within the specified period for an extension of the time within which you may appeal."
The reference to the Director was a reference to the Director, Grievance and Appeals Bureau of the Public Service Board. This is the position held by the respondent.

The period of 14 days referred to expired on 6 April 1983. No appeal was lodged on or before that date but, by a document bearing date 8 April 1983, the applicant applied pursuant to regulation 141(2) of the Public Service Regulations for an extension of the 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 received by him on 18 April 1983 the applicant was informed by the respondent as follows:-
"Under Public Service Regulation 141 an appeal must be lodged within a period of 14 days after the day on which an appellant is furnished with the particulars of reasons for disciplinary action. An extension of the period during which an appeal may be lodged may only be considered by me if a request for an extension is received within that 14 day period. Neither the Public Service Act nor the Regulations provide for any further discretion to vary the time in which an appeal, or a request for an extension of time, may be lodged."

Section 61 of the Public Service Act 1922 provides, inter alia, that an officer included in the Second, Third or Fourth Division who may have failed to fulfil his duty as an officer may be charged with that failure. An officer is to be taken to have failed to fulfil his duty as an officer if and only if his conduct falls within one of the paragraphs lettered (a) to (g) in section 56. Procedures for inquiry into the charge are prescribed (section 62). Sub-section 62(6) provides that where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled may counsel the officer, or cause the officer to be counselled by another officer, or direct that certain other action be taken in respect of the officer or recommend to the Public Service Board that action be taken to dismiss the officer from the Service. The other action that may be taken includes action by way of -
. admonishing the officer;
. causing a sum not exceeding $40 to be deducted from his salary;
. reducing the salary of the officer;
. transferring the officer to a specified office having the same classification as the classification of the office held by him; or
. transferring the officer to a specified office having a lower classification than the classification of the office held by him.
Sub-sections 62(9) and (10) provide:-
"(9) Where the officer holding an inquiry into a charge gives a direction of a kind referred to in paragraph (6)(a), or makes a recommendation to the Board of the kind referred to in paragraph (6)(b), in respect of the officer charged, he shall -
(a) in a case where he gives such a direction-furnish to the officer particulars of his reasons for giving that direction; and
(b) in a case where he makes such a recommendation - furnish to the officer and to the Board particulars of his reasons for making that recommendation.
(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 63 enables disciplinary proceedings to be taken against an officer included in the Second, Third or Fourth Division in circumstances where a court has convicted the officer of a criminal offence or found, without recording such a conviction, that the officer has committed such an offence. In such a case a direction may be given for the transfer of the officer to a specified office having the same or a lower classification as the classification of the office held by him or a recommendation may be made to the Public Service Board for the officer's dismissal. Sub-section 63(5) is in similar terms to sub-section 62(10).

The effect of section 63A is that, where a recommendation that an officer be dismissed from the Service has been made under paragraph 62(6)(b) or 63(1)(d), the Board is not to consider what action to take on that recommendation -
. if the officer has appealed against the recommendation - until the appeal has lapsed or been withdrawn or a Disciplinary Appeal Board has confirmed the recommendation; or
. in any other cases - until the period within which the officer may appeal to a Disciplinary Appeal Board against the recommendation has expired.
Similar provision is made with respect to an unattached officer by section 63N.

Section 63D confers on an officer a right of appeal to a Disciplinary Appeal Board from a direction given in respect of the officer under paragraph 62(6)(a) or 63(1)(c) or a recommendation made in respect of him under paragraph 62(6)(b) or 63(1)(d). A Disciplinary Appeal Board is to hear each appeal submitted to it and may confirm, vary or set aside the decision against which the appeal is made (sub-section 63D(3)).

Regulations have been made in exercise of the power conferred by section 97 regulating the manner in which, and the time within which, appeals may be made to a Disciplinary Appeal Board. An appeal to a Disciplinary Appeal Board under, inter alia, section 63D, is to be in writing and addressed to and lodged with the Director of the Grievance and Appeals Bureau of the Public Service Board, specifying the ground or grounds on which it is made (regulation 140). Regulation 141 provides:-
"(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, or posting it as a letter so as to be received by, the Director within the period of 14 days after the day on which the appellant was furnished, or is under sub-regulation 6A(2) to be deemed to have been furnished, with the particulars of reasons, or reasons, referred to in paragraph 62(9)(a) or (b), 63(4)(a) or (b), 63F(7)(a) or 66B(4)(a) or sub-section 63K(4), 63L(4) or 63M(2), as the case may be, of the Act or within such further period as the person who is required to furnish those particulars of reasons, or 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."

The question for decision is whether the Director may, under sub-regulation 141(2), extend the period within which an appeal may be lodged where the application for that purpose is made to him after the expiration of the period referred to in sub-regulation 141(1). Counsel for the applicant sought an affirmative answer to that question.

Sub-regulation 141(1) takes, as the starting point for the calculation of the period within which an appeal may be lodged, the date upon which the appellant was furnished, or is deemed to have been furnished, with particulars of reasons, or reasons, for the decision. It provides that the appeal must be lodged within the period of 14 days after that date or within such further period as the person furnishing those particulars or reasons considers reasonable. This seems to contemplate a situation where, at the time of furnishing such particulars or reasons, the person doing so concludes that 14 days is an insufficient period and, in lieu thereof, fixes a period in excess of 14 days and gives notice of that period to the person to whom the particulars or reasons are furnished.

Sub-regulation 141(2) then deals with the question of the extension of the period fixed by or under sub-regulation 141(1). The sub-regulation requires that an application for such extension be made in writing to the Director but it is not expressly stated whether such application is to be made before the expiration of the period referred to in sub-regulation 141(1) or whether it may be made at any time.

Counsel for the applicant argued that to construe the regulation so as to deny power to extend the period referred to in sub-regulation 141(1) once the initial period fixed by or under that sub-regulation had expired would be inconsistent with the scheme of the Act and the regulations. It was said that the Act and regulations, in dealing with disciplinary matters including rights of appeal, evinced an intention that there should be a lack of formality and technicality. To import arbitrary or unnecessarily restrictive limitations in relation to the right of appeal would be, so it was submitted, inconsistent with the legislative scheme.

Counsel also submitted that for the same reasons the power conferred by sub-regulation 141(2) should not be held to depend upon an application being made within the initial period fixed by or under sub-regulation 141(1). The draftsman must be taken to have intended, so the argument ran, that an application for extension might be made at any time, it being left to the discretion of the Director to determine, on relevant grounds, whether an extension should be granted. The purpose of sub-regulation 141(2) was said not to be restrictive of the right of appeal conferred by the Act, but to be enabling, giving to the Director a wide discretion to enlarge the period within which an appeal might be lodged.

In support of his argument counsel for the applicant referred, by analogy, to cases arising under the Motor Vehicles (Third Party Insurance) Act, 1942 (N.S.W.) as amended or similar legislation providing that an action does not lie against the nominal defendant to enforce a claim unless notice of intention to make the claim is given within a prescribed period after the occurrence out of which the claim arose or within such further period as the court, upon sufficient cause being shown, may allow. It was said that the courts have always acted on the basis that an extension of the period within which to give such notice may be granted notwithstanding that the period prescribed by the legislation has expired: see, for example, Dunne v. The Nominal Defendant (1954) 71 W.N. (N.S.W.) 87 and New v. The Nominal Defendant (1965) 83 W.N. (Pt. 1) (N.S.W.) 74.

These cases, dealing as they do with legislation on a subject matter distinct from that dealt with by the provisions with which I am here concerned, are of limited assistance in resolving the present case.

Counsel also sought to support his argument by referring to a number of cases that are conveniently collected in Samuels v. Linzi Dresses Ltd. (1981) 1 Q.B. 115. Those cases concerned the question whether the time for the taking of a step in the proceedings could be extended notwithstanding that the time fixed by a curial order previously made in the proceedings for the taking of that step had expired, that order also providing that, unless the step were taken within the time so fixed, the proceeding should stand dismissed or a pleading be struck out. The question in those cases was quite different from the issue in the present proceedings. In each of the cases referred to relevant rules of court made express provision for the grant of an extension of the time appointed for doing an act or taking any proceeding although the application therefor was not made until after the expiration of the time appointed or allowed. The argument was that, notwithstanding the general power given to extend time, no extension could be granted where an "unless" order had been made and the time allowed to run out without that order being properly complied with. Those cases provide no assistance in resolving the present issue.

The issue, is one of the proper construction of regulation 141 read in its context, including the statutory provisions which it supplements. One must give the regulation a meaning and operation which will apply universally to all the cases that fall within its purview.

In relation to the meaning of the word "extend" in sub-regulation 141(2), reference was made during argument to the well-known passage in the judgment of Fullagar J. in Esso Research and Engineering Company v. Commissioner of Patents (1959) 102 C.L.R. 347 at p. 351. His Honour there said:-
"I think I would concede that a provision for 'extending' a prescribed period during which a thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may even be said that, when the originally prescribed period has expired, there is nothing to 'extend'. But, while this view may be said to represent the most natural meaning of the word 'extend', that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what is really the prescription of a new period as an 'extension' of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to 'extend' the time for doing a thing is accompanied by an express provision that an 'extension' may be granted although the originally prescribed period has expired. An example ready to hand is s. 160 of the Patents Act, sub-s. (2) of which says that 'the time required for doing an act . . . may be extended under this section although that time has expired'. While these cases suggest that a power to extend time without more is prima facie to be regarded as a power to extend a period still current, they also indicate that an enlargement of time after the expiration of a prescribed period is quite naturally regarded as itself an 'extension'."

Counsel for the respondent, as I understood his argument, did not contend that the Director's power to grant an extension ceased upon the expiration of the period fixed by or under sub-regulation 141(1). He maintained, however, that the regulation on its proper construction required that an 'extension' could only be granted upon an application made within the period so fixed.

To construe the regulation in the manner contended for by the applicant would, in my view, make the provisions of the statute concerning the carrying into effect of decisions made under the disciplinary provisions unworkable. Regulation 141 has effect in relation to appeals under sections 63D, 63F, 63P and 66B of the Act. Section 63D relates to appeals against directions given, and recommendations made, under sections 62 and 63. The provisions contained in sub-section 62(10) fix the time at which a direction given under paragraph 62(6)(a) takes effect. Sub-section 63(5) provides for the date of effect of a direction under paragraph 63(1)(c). The directions which may be given under paragraphs 62(6)(a) and 63(1)(c) include the transfer of an officer from one locality to another, the transfer of an officer to an office of lower classification than the one he currently holds and, in the case of paragraph 62(6)(a), the reduction of an officer's salary within a particular salary range.

Sub-sections 62(10) and 63(5) provide that a direction takes effect -
(a) if the officer appeals from 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.
A limitation expressed in similar terms is placed on the power of the Public Service Board to act upon a recommendation under paragraph 62(6)(b) or paragraph 63(1)(d) for the dismissal of an officer from the Service: see the provisions of section 63A referred to above.

The effect of the construction of sub-regulation 141(2) contended for by the applicant would be that, where the application to extend the period within which to appeal is made after the expiration of the period fixed by or under sub-regulation 141(1), the direction sought to be reviewed will have already taken effect pursuant to sub-section 62(10) or sub-section 63(5). It may well have taken effect some time before as, upon the view contended for by the applicant, there would be no limitation on the time within which an application to extend the period referred to in sub-regulation 141(1) could be made. Similarly, where what is sought to be reviewed is a recommendation for dismissal, the Public Service Board may already have carried the recommendation into effect, it not being inhibited from doing so by virtue of section 63A once the period fixed by or under sub-regulation 141(1) has expired. I find it difficult to think that this could have been the intention of the legislature or of the draftsman of regulation 141.

The difficulties which would arise on the view contended for by the applicant are avoided if sub-regulation 141(2) is construed so as to require any application for an extension of time to be made within the period referred to in sub-regulation 141(1). If an application is lodged within that period, the direction sought to be reviewed would not take effect because it would then, in my view, be correct to say, in terms of sub-sections 62(10) and 63(5), that the period within which the officer may appeal had not expired - it would not expire until a decision was made by the Director upon that application and, if he extended the period, it would not expire until the expiration of the extended period. Similarly the Public Service Board could not act upon a recommendation for dismissal until the application had been determined.

While the difficulties arising from the view that there is no limitation upon the time at which an application may be made under sub-regulation 141(2) may not be of great consequence in the case of an admonition or a direction that a deduction from salary be made of a sum not exceeding $40, they would provide a substantial impediment to proper administration where more serious disciplinary action is directed or recommended. It is not to my mind a sufficient answer to say that these matters could be taken into account by the Director in the exercise of his discretion under sub-regulation 141(2).

For these reasons I am of the opinion that regulation 141(2), on its proper construction, requires that an application to extend the period referred to in sub-regulation 141(1) must be made to the Director before the expiration of that period. The application should, therefore, be dismissed. The applicant must pay the costs of the Director of and incidental to the application.