Cameron, P.A. v Gesling, C

Re: PATRICIA ANN CAMERON
And: CLIVE GESLING; JOAN CLARE HUGHES; LESLIE NORMAN BLACKLEY; ROBERT NORMAN
ALLEN and STEPHANIE CHAPMAN
No. ACT G58 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Commonwealth Teaching Service - Application for orders of review in respect of decision of Promotions Appeal Board - Application for extension of time within which to bring proceedings - Whether satisfactory explanation of delay - Whether serious questions raised by substantive application - Implications for third parties and for administration of Commonwealth Teaching Service - Whether open to applicant to challenge refusal to give statement of reasons.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 7, 11, 13

Commonwealth Teaching Service Act 1972 (Cth), ss.29, 30

HEARING

CANBERRA

#DATE 4:3:1987

Counsel for the applicant: Mr A. Hogan

Solicitors for the applicant: Manfred Stinson & Dougall

Counsel for the first and second respondents: Mrs J. Bonsey

Solicitor for the first and second respondents: Australian Government Solicitor

Counsel for the third respondent: Mr R. Refshauge

Solicitors for the third respondent: Macphillamy Cummins & Gibson

ORDER

The applicant's motion notice of which was given on 9 October 1986 be dismissed.

The application for orders of review filed on 18 August 1986 be dismissed.

The applicant pay the costs (including reserved costs) of the respondents of the application and of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 15 August 1985 Stephanie Chapman ("the third respondent") was provisionally promoted to the position (designated Band 3) of Head of the School of Business Studies, Canberra College of Technical and Further Education (Position No.4208), being a position within the Australian Capital Territory Technical and Further Education component of the Commonwealth Teaching Service established and continued in existence by the Commonwealth Teaching Service Act 1972 (Cth) ("the Act").

Under the Act (sub-s.29(1)) the promotion of an officer is provisional and subject to appeal. The appeal may be on the ground of superior efficiency or of equal efficiency and seniority (sub-s.29(2)). Upon an appeal or appeals being made, a Promotions Appeal Board constituted as provided in s.30 is to make full inquiry into the claims of the appellant or appellants and the claims of the officer provisionally promoted and determine the appeal or appeals (sub-s.29(3)). Where an appeal has, or appeals have, been duly made but the appeal, or each of the appeals, has been disallowed, the provisional promotion is to be confirmed (sub-s.29(5)).
On 2 September 1985 Patricia Ann Cameron ("the applicant") lodged an appeal against the provisional promotion of the third respondent on the ground of superior efficiency.
The appeal was heard by a Promotions Appeal Board constituted by Clive Gesling, Joan Clare Hughes and Leslie Norman Blackley ("the first respondents") and disallowed. The applicant was informed by letter dated 15 November 1985 that her appeal had been unsuccessful and that confirmation of the provisional promotion of the third respondent was expected to be notified in the Commonwealth of Australia Gazette of 21 November 1985. That expectation was fulfilled.
It was not until 18 August 1986 that the applicant filed in this Court an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") seeking an order of review in respect of the decision of the Promotions Appeal Board described in the application as a decision "to confirm the provisional promotion of Stephanie Chapman" to the position in question. The application set out four grounds on which it was based, namely -

. a breach of the rules of natural justice;

. an improper exercise of the power in that the Promotions Appeal Board failed to take relevant considerations into account;

. a failure to observe the procedures that were required by law to be observed; and

. an absence of evidence or other material to justify the making of the decision.

Particulars were given of each of the first three grounds. In respect of the first ground, the particulars foreshadowed that the applicant would allege an inadequate opportunity to read relevant documents before being interviewed by the members of the Promotions Appeal Board, a failure of the Board to provide her with copies of those documents and a failure to provide the applicant with an adequate opportunity to present evidence "in relation to the claims of" the third respondent.
In respect of the second ground, the relevant matters which were alleged not to have been taken into account were described in the following terms:

"(a) the fact that the said Stephanie Chapman misrepresented her experience and qualifications to the Respondents.

(b) the degree and extent of that misrepresentation.

(c) that the said Stephanie Chapman had no managerial experience before she became a member of the Commonwealth Teaching Service.

(d) that managerial experience was a qualification required of persons appointed as Band 1 Teachers TAFE to such positions as the position initially held by the said Stephanie Chapman on her being employed in TAFE."

The reference in the particulars to "the Respondents" was a reference to the members of the Promotions Appeal Board (now identified as the first respondents), no other person being then named as a respondent to the application.

The particulars given of the third ground referred specifically to the alleged failure of the Board to make enquiries whether the third respondent had misrepresented her experience and qualifications when applying for membership of the Commonwealth Teaching Service or in applications for promotion to a Band 2 position.
A directions hearing was held on 29 August 1986. I then directed that Robert Norman Allen, the person who confirmed the provisional promotion, be joined as the second respondent. I further directed that, if the respondents proposed to object to the competency of the application on the ground that it was filed out of time, a notification to that effect be filed and served not later than 15 September 1986 and that, if the applicant proposed to apply for an extension of time within which to bring the proceedings, such application, together with a supporting affidavit, be filed and served not later than 9 October 1986. The matter was adjourned until 10 October 1986.
On 11 September 1986 notice was given by the first and second respondents that objection was taken on the ground that the application was filed out of time.
By notice of motion dated 8 October 1986 Stephanie Chapman sought an order joining her as a respondent to the proceeding.
At a further directions hearing on 10 October 1986, I ordered that Stephanie Chapman be joined as the third respondent. I reserved the question of costs of the notice of motion for such joinder. The applicant then moved pursuant to a notice of motion which had been filed on 9 October 1986 for an extension of time within which the substantive application might be filed and served and for leave to amend the application in a number of respects. The first of the amendments sought was to clarify that the decisions in respect of which orders of review were sought were -

(a) the decision of the first respondents disallowing the applicant's appeal against the provisional promotion of the third respondent; and

(b) the decision of the second respondent confirming the provisional promotion.

A further amendment was sought to enable the applicant to seek an order of review in respect of the failure of the first respondents to furnish a statement in writing to the applicant as requested by letter dated 21 July 1986 (that is to say, a statement of reasons under s.13 of the Judicial Review Act in respect of the decision to disallow her appeal against the provisional promotion of the third respondent) or, in the alternative, the decision of the first respondents not to furnish the said statement. The applicant also sought to add the grounds upon which the order of review was sought in respect of the last-mentioned matters and to add to the relief claimed in the original application. The further hearing of the matters the subject of the notice of motion was adjourned until 21 October 1986 and it is those matters that are now before me.

I turn first to the question whether the applicant should be granted an extenstion of time within which to bring the proceeding.
From her affidavit sworn on 16 August 1986 in support of the substantive application and the annexures thereto, it appears that, prior to her interview with the members of the Promotions Appeal Board, the applicant had had access to the curriculum vitae of the third respondent, to the reports upon herself and upon the third respondent made by the members of the panel who selected the third respondent for provisional promotion to the position, and to referees' reports relating to the third respondent. It also appears that, during the course of her interview, the applicant extensively commented upon the material put before the Promotions Appeal Board by the third respondent. Included in those comments were allegations that certain claims made by the third respondent in relation to the nature of her employment with Myer Corporation between 1963 and 1967 were untrue. The applicant made available to the Board certain documents which she said she had obtained after exhaustive enquiries at Myers stores in four capital cities and a search by Myers' staff of archives held by Myers in Melbourne. She subsequently supplemented those documents with a further document which had not been available to her at the time of the interview.
It appears from the affidavit sworn by the applicant on 9 October 1986 in support of the application for extension of time that on 13 November 1985, that is prior to receiving notification that her appeal had been unsuccessful, she had made a request under the Freedom of Information Act 1982 (Cth) to the Department of Education for access to "the full application including curriculum vitae of Ms S. Chapman for the position of Band 1, Teacher of Management, Canberra TAFE College dated on or about October/November 1980", a position for which the applicant had also applied. That request was refused by letter dated 18 December 1985 on the ground that the document was an exempt document by virtue of pars 40(1)(c) and (d) and sub-s.41(1) of that Act.
It also appears from that affidavit that, a few days after she was informed on 15 November 1985 that her appeal had been unsuccessful, the applicant delivered a handwritten note with annexures to the Acting Secretary to the Department of Education. The note disputed the accuracy of a number of the statements which the third respondent was said to have made to the Promotions Appeal Board in support of her promotion. The matters concerned the course of study she had pursued at the University of Sydney, her employment with Myers and her involvement with the Institute of Personnel Management of Australia. The note, which is in evidence, did not itself ask for any action to be taken. However, a few days later the Acting Secretary informed the applicant that he had investigated her complaint, that he was satisfied that correct procedures had been followed and that he was not prepared to investigate her complaint further.
Late in November or early in December 1985 the applicant, after speaking with the General Secretary of the A.C.T. Teachers Federation, wrote to that body "requesting a legal opinion on the evidence available in my appeal". According to the applicant no legal advice was in fact received.
On or about 25 November 1985 the applicant spoke to Senator M. Reid about the matter and subsequently had a conversation with Mr P. Shack, M.P. On the latter occasion, three other unsuccessful appellants against the promotion of the third respondent were apparently also present. On 27 November 1985 Mr Shack wrote to the Minister for Education asking the Minister to establish "an independent inquiry into the appointment of Stephanie Chapman to a Band 3 position at the Canberra College of Technical and Further Education". The matters requiring investigation were described as being the serious charges made about the veracity of the third respondent in her application for the position and the conduct of the panel responsible for her appointment. The letter continued:

"For confidence to be re-established in the selection panel system of TAFE appointments, as operating at Canberra TAFE, the inquiry would need to look into how thoroughly the selection panel in this instance checked the claimed qualifications and experience of applicants for the position."

The request that an independent inquiry be established was refused and Mr Shack informed the applicant to that effect by letter dated 6 February 1986. Mr Shack stated that the Minister had informed him that under the Act decisions made by the Promotions Appeal Board were final. He added: "Only a legal challenge could test her view". The letter continued:

"The only avenue of action remaining to you, apart from a legal challenge on equity or fraud grounds, appears to be through the Commonwealth Ombudsman.

In view of paragraph four of the ACT Further Education Director's Report to the Minister on the matter, there seems little chance of Ms Chapman's appointment being overturned .... legal action on equity or fraud grounds appears to be your only recourse.

The Ombudsman may be willing to help you with this."

A copy of the Minister's letter dated 20 January 1986 to Mr Shack and a copy of a report dated 24 December 1985 by the Director of A.C.T. Further Education, Department of Education were made available to the applicant. The report was in the following terms:

"I am well aware of the circumstances surrounding the representation (sic) made by Mr Shack as I examined them in detail some time ago following a meeting with Ms P. Cameron at which she complained to me about Ms Chapman's promotion on the same grounds set out in Mr Shack's letter. Ms Cameron had gone to a great deal of trouble to produce evidence indicating that a statement made in Ms Chapman's application for the position was incorrect. This statement related to experience gained by Ms Chapman in industry prior to her joining the Commonwealth Teaching Service.

All applicants for the position had two chances of demonstrating their claims to be regarded as the most efficient officer. The first came with the original selection for provisional promotion; the second came by way of appeals against the provisional promotion of Ms Chapman.

The complainants have focussed substantially on the accuracy of the pre-teaching industrial experience claimed by Ms Chapman. However, they have ignored the fact that the criteria established by the selection panel did not refer to such experience.... Consistent with the criteria, the Panel's report on the applicants for the position gave little or no weight to prior industrial experience, or the precise details of qualifications.

At our earlier meeting, Ms Cameron told me that she had raised the matter of Ms Chapman's claims to industrial experience with the Chairman of the Promotions Appeal Board and I talked to him about it. He advised that the Board had discussed the matter in some depth with Ms Chapman; it had concluded that while she had over stated her experience prior to joining the CTS, the actual extent of industrial experience was not a criterion for selection, and this did not affect the outcome of the appeal proceedings. The Board determined unanimously that Ms Chapman was the most efficient officer for the position being considered.

The suggestion that Departmental Officers were not interested is denied. As mentioned previously, I saw Ms Cameron, accepted material from her and examined the case. I told her in a later telephone conversation that I was satisfied that the Appeal Board was aware of all the facts and had acted in a proper manner in reaching its decision which, under the CTS Act, is final. Ms Cameron appeared to be suggesting, at our meeting, that disciplinary action should be taken against Ms Chapman for making an incorrect statement in her job application. I do not, however, believe that there are grounds for such action.

Subsequent to my inquiries, the acting Secretary, Mr N. Fisher, was approached by Ms Cameron who complained about the decision on the case and the results of my inquiries. Mr Fisher independently called for and examined the papers on the promotion and supplementary material provided by Ms Cameron. He also concluded that there was no significant evidence that the appointment was based on critical error and no case for further separate review.

In all the circumstances, I do not believe an inquiry is justified. The grounds on which the unsuccessful applicants have complained did not give the promotee an advantage in the original assessment nor were influential in the selection. In so far as problems existed these were recognised and taken account of by the Promotions Appeal Board, which, after separate and independent review, determined that Ms Chapman was the most efficient officer for the position in question."

Later in February 1986 the applicant had a further meeting with Senator Reid and Mr Shack. According to the applicant, they advised her to continue political representation rather than taking legal action. By letter dated 7 March 1986 to the applicant Senator Reid expressed the opinion that, if the Minister would not intervene, "presumably the only other course of action would be through the Ombudsman".
Also in February 1986 the applicant discussed the matter with Ms F. Steen, a member of the Council of the Canberra College of Technical and Further Education. The applicant was informed that Ms Steen had discussed the matter with the Chairman of the College Council and with the second respondent and that "their conclusion was that nothing could be done".
In May 1986 the applicant raised the matter with Mr J.J. Timbs who had in March of that year become the Principal of the Canberra College of Technical and Further Education.
On 10 June 1986 the applicant sent a letter of that date to Mr C. Gesling, the Chairman of the Promotions Appeal Board, reading as follows:

"I am writing to express deep concern at the sequence of events, now compounding, which led to my having been considered unsuitable for the positions of Head of Department, Management (PN 4342) and Head of Department, Hospitality and Small Business Management (PN 4321), Canberra College of TAFE.

I invite you, in the light of circumstances surrounding my successful appeal against the promotion of Mr Trevor Lipscome, to examine the propriety of the selection process by a panel which included Ms Chapman and her husband Mr Howes as chairman. This panel overlooked my application for one of the positions in favour of that from a newly appointed probationary teacher. I believe there are now substantial grounds for relating its decision to the earlier behaviour of Ms Chapman where she, in her application for the position of Head of School, Business Studies, and again at appeal, made claims in relation to her previous managerial experience that could be considered grossly exaggerated, to the point of fraudulence. Prior to entering TAFE she had no managerial experience at all. There are also a number of discrepancies between the university subjects she claimed to have passed and those quoted in the relevant University Handbook.

I urge you to discuss with the Director of ACT Further Education all avenues of reconsideration of the Band 3, Business Studies appeal decision in the light of both the original evidence and the emerging pattern of behaviour on the part of the substantive promotee."

The applicant sent copies of the letter to the Principal of the Canberra College of Technical and Further Education, the Chairman of the Council of the College and the President of the A.C.T. Teachers Federation. The two positions referred to in par.1 of the letter were apparently Band 2 positions in the School of Business Studies at the Canberra College of Technical and Further Education for which the applicant had applied late in October or early in November 1985. Mr Gesling had been the chairman of the Promotions Appeal Board dealing with appeals in relation to those positions. Mr Gesling replied by letter dated 30 June 1986 stating simply that the appeals, referring presumably to the appeals against the promotion of the third respondent, had been determined by the Promotions Appeal Board in accordance with the Act.

On 13 June 1986 the applicant wrote a further letter to the A.C.T. Teachers Federation seeking legal assistance "in the light of Ms Chapman's subsequent behaviour in the Band 2 selection process". In about the middle of June 1986 the applicant was informed that funds would be provided to enable her to seek legal advice. The applicant consulted a solicitor on 23 June 1986 and received certain advice including advice that proceedings could be commenced under the Judicial Review Act. She says that this was the first occasion on which she became aware of any time limits for commencing such proceedings. On 4 July 1986 the applicant was informed by the A.C.T. Teachers Federation that funds would be provided to enable her to take further action but she says she was not clear whether this included the taking of legal proceedings. The position was apparently not clarified until 7 July 1986. As has already been mentioned, the application under the Judicial Review Act was filed on 18 August 1986.
The applicant, accepting that it was for her to satisfy the Court that an extension of time for the requisite period should be granted, submitted that the Court should be so satisfied. It was submitted on her behalf that -

(a) the substantive application under the Judicial Review Act raised serious issues for determination;

(b) the period of delay in instituting the proceedings had been satisfactorily explained;

(c) the period of delay was not such as to make it unjust to grant the extension sought; and

(d) to grant the extension of time would not result in prejudice to the respondents.

The general principles by which the Court will be guided in considering whether to grant an extension of time to bring a proceeding under the Judicial Review Act are now well established and need not here be repeated. It is sufficient to refer to the useful summary of relevant authorities collected in Hunter Valley Developments Pty. Ltd. v. Cohen (1984) 3 FCR 344 to which may be added a reference to Sandery v. Commissioner of Police (1986) 65 ALR 181, Devereaux v. Commissioner of Taxation (1986) 10 FCR 550 and to the unreported decisions in Seyfarth v. Luckman (4 October 1985), Pozniak v. Minister for Health (14 March 1986), Tredex Australia Pty. Ltd. v. Button (11 September 1986), Waterhouse v. Deputy Commissioner of Taxation (16 September 1986), Chumbairux v. Minister for Immigration and Ethnic Affairs (17 September 1986), A.B. Tall Bennett & Co. Pty. Ltd. v. Bates (5 December 1986) and Winter v. Deputy Commissioner of Taxation (10 February 1987).
The applicant gave evidence that, although she was aware of the Freedom of Information Act 1982 (Cth) and, indeed, had on 13 November 1985 availed herself of its provisions in seeking access to certain documents relating to the third respondent, she was not aware of the Judicial Review Act until she consulted a solicitor in relation to this matter in June 1986. In the light of the nature of her work experience and of the other matters on which she relied in putting her case to the Promotions Appeal Board (including her activities as Vice-President of the Canberra Branch of the Institute of Personnel Management of Australia, the majority of the members of which branch are public servants) and the wide use which has been made of the provisions of the Judicial Review Act both by members of the Australian Public Service, which she joined on 2 March 1986, and by members of the Commonwealth Teaching Service of which she was a member from 1983 or possibly earlier, I find it difficult to accept that prior to June 1986 she had no knowledge at all of that Act.
But, whatever might have been the extent of her knowledge of the Judicial Review Act at the time the decision of the Promotions Appeal Board was communicated to her, there is no doubt that recourse to legal process was always recognised by her as one of the avenues available in seeking to remedy what she regarded as an injustice. Although, according to her evidence, there was no discussion with Mr Shack as to the availability of redress through legal means, Mr Shack, according to her, saying that the law was not an option, it is apparent from Mr Shack's letter to the applicant dated 6 February 1986 that her attention was directed specifically to the possibility of legal action though not in the context of the Judicial Review Act. But, even before the discussions with Mr Shack, the applicant had herself approached the A.C.T. Teachers Federation requesting a legal opinion on the evidence available in her appeal.
I am satisfied that the applicant's concern was the removal of the third respondent from the position of Head of the School of Business Studies, not the mounting of a legal challenge to the decision reached by the Promotions Appeal Board. After all she was but one of a number of appellants who had been unsuccessful in convincing the Promotions Appeal Board that their claims to the position were greater than those of the third respondent and she had on 2 March 1986 taken up a position with the Public Service Board at a higher salary than that of the Head of the School of Business Studies. In any event, she had herself raised with the Promotions Appeal Board at some length the issues concerning the third respondent's qualifications and experience and she had been made aware by the report dated 24 December 1985 of the Director, A.C.T. Further Education, a copy of which she received in February 1986, that the matters she had raised with the Board had been pursued at least to the extent of their being discussed by the Board with the third respondent. The applicant's real complaint was not so much with the appeal process as with the selection procedures operating within the Australian Capital Territory Technical and Further Education component of the Commonwealth Teaching Service, procedures which had resulted in the third respondent being provisionally promoted to the position of Head of the School of Business Studies. She saw the promotion of the third respondent as being the product of an ineffective system which allowed an applicant to make assertions which were acted upon by the selection panel without adequate inquiry into their correctness.
Although the applicant was not able to articulate precisely what course of action she was advocating as the means by which the third respondent might be removed from her position, she determined to seek a full, open and independent inquiry into the selection process. It also appeared to the Director, A.C.T. Further Education, as appears from his report, that the applicant was suggesting that disciplinary action should be taken against the third respondent for making an incorrect statement in her job application. To achieve her aims the applicant pursued what she called "a political remedy". As she said in her evidence: "Well, I was aiming to get a political settlement and I believed that we would get one". It was to this end that she consulted Senator Reid, Mr Shack, the A.C.T. Teachers Federation, the Acting Sercretary to the Department of Education, the Director of A.C.T. Further Education, the Principal of the Canberra College of Technical and Further Education and others and continued to pursue the matter in that vein even though repeatedly told that nothing could or would be done.
It was not until she was convinced that all avenues for redress by the above means were exhausted that the applicant returned to the question of a legal remedy, a question which she had obviously contemplated in her first approach to the A.C.T. Teachers Federation in November or December 1985. She then renewed her application for assistance from the A.C.T. Teachers Federation but even at that stage she took no active steps herself to obtain legal advice even though, as is apparent from her evidence, she was not lacking in the necessary financial resources to be able to take that step.
It is also of some significance that it was not until the application was filed on 18 August 1986 that any complaint was made in relation to the matters relied on in the application as amounting to a failure of the Promotions Appeal Board to afford to the applicant natural justice.
I was not referred to any machinery available to the Minister for Education or her department or to officers of the Commonwealth Teaching Service by which a provisional promotion which has been duly confirmed after the disallowance by a Promotions Appeal Board of an appeal or appeals against it can be set at nought by administrative action. It follows that the course pursued by the applicant was not one which could have resulted in the decision of the Promotions Appeal Board to disallow her appeal being set aside. It is, therefore, not a case where the delay in commencing proceedings under the Judicial Review Act is to be excused on the basis that the applicant was pursuing an alternative course of action which might make recourse to such proceedings unnecessary. Far from leading those concerned to the belief that the decision of the Promotions Appeal Board was to be challenged, the action taken by the applicant could only have led to the opposite belief.
In my opinion, the applicant has failed to give an explanation which can be regarded as satisfactory for what is a substantial period of delay in instituting the proceedings under the Judicial Review Act.
What I have said is sufficient to dispose of the matter but, in deference to the submissions of counsel, I should express a view on the other matters upon which the applicant relied as justifying an extension of time.
Counsel for the applicant submitted that the substantive application raised serious questions for determination. I do not agree. As to the ground based upon an alleged failure by the Promotions Appeal Board to afford the applicant natural justice, the applicant's own evidence shows that she had access to all relevant material from whatever source she may have obtained it. Further, in the light of the material she put before the Board, it is clear that she had conducted extensive enquiries into the matters which were of concern to her. There is nothing in her affidavit filed in support of the substantive application which supports the proposition that she did not have adequate opportunity to put whatever material she wished before the Board. Her affidavit does not identify any additional material which she wished the Board to consider but which she did not have an opportunity to place before it.
As to the other grounds, the evidence is that the matters on which the applicant relied were put before the Promotions Appeal Board and were the subject of further inquiry by its members. The weight to be given to the material was clearly a matter for the Board.
In the light of these considerations, I do not think it can be said with any degree of justification that the applicant has such a strong case as to make it unjust for the Court to exercise its discretion adversely to her.
Further, a successful challenge to the decision of the Promotions Appeal Board would have implications for other people, particularly the third respondent, and for the administration of the Canberra College of Technical and Further Education and, in particular, the School of Business Studies. In such a case, a very heavy duty rests upon an applicant to act expeditiously.
For the above reasons the application to extend the time within which to commence the proceeding under the Judicial Review Act is refused.
In the light of this conclusion it is unnecessary to consider the motion to amend the application filed on 18 August 1986. I should, however, say that I am unable to accept the submission that the applicant may challenge under s.7 of the Judicial Review Act the refusal of the first respondents to provide the statement requested by the applicant's solicitors by letter dated 21 July 1986. That request, which purported to be a request under s.13(1) of the Judicial Review Act, was clearly not made within 28 days after the day on which the applicant was informed in writing of the decision reached by the Promotions Appeal Board. In those circumstances, s.13 imposed no legal obligation on the Board to furnish a statement of the kind mentioned in sub-s.(1) thereof: see Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 ALR 535 at p 548; Lally v. Minister for Immigration and Ethnic Affairs (1984) 6 FCR 251 at p 255. Such an obligation cannot arise from the circumstance that the Board failed to give to the applicant, within 14 days after receiving the request, notice in writing pursuant to sub-s.13(5) that the statement would not be furnished. Whether, if an extension of time to bring the substantive application had been granted, the applicant could have obtained, by the intervention of the Court, information similar to that which would be provided by a statement under s.13 need not now be considered: see Immigration and Ethnic Affairs (17 September 1986), A.B. Tall Bennett & Co. Pty. Ltd. v. Bates (Lockhart J. - unreported - 5 December 1986).
The motion notice of which was given on 9 October 1986 is dismissed. The application for orders of review filed on 18 August 1986 is also dismissed. The applicant must pay the costs (including reserved costs) of the respondents of the application and of the motion.

[1987] FCA 92

04 MARCH 1987