Chapman, Ernest Max McLeod v Reilly, John Daniel

[1983] FCA 367

c IN THE FEDERAL COURT OF AUSTRALIA

1

AUSTRALIAN CAPITAL TERRITORY	1
) No. ACT G88 of 1983
DISTRICT REGISTRY	1
1
GENERAL DIVISION	1

BETWEEN : EARNEST MAX McLEOD CHAPMAN

Applicant

- AND: JOHN DANIEL REILLY

Respondent

O R D E R

JUDGE MAKING ORDER: Neaves J.

DATE OF ORDER:	December	9	1983
Canberra	WHERE MADE:

THE COURT ORDERS THAT:

The time within which to bring proceedings under

the Administrative Decisions (Judicial Review) Act

1977 for an order of review in respect of the

decision of the respondent embodied in the letter

dated 13 July 1983	be extended up to and including
1 November 1983.

L	IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY 1

) No. ACT G88 of 1983

DISTRICT REGISTRY	1
GENERAL DIVISION

BETWEEN : EARNEST MAX McLEOD CHAPMAN

Applicant

AND : .__ JOHN DANIEL REILLY

Respondent

CORAM: Neaves J.

DATED : 9 December 1983

REASONS FOR JUDGMENT

This is an application by Earnest Max McLeod

Chapman ("the applicant") under paragraph 11 (1) ( c ) of

the Administrative Decisions (Judicial Review) Act 1977

("the Act") for an extension of the time within which

to make an application under section 5 f that Act for

an order of review in respect of a decision said to have

been made by John Daniel Reilly, an Assistant Comissioner

of the Australian Federal Police ("the respondent"), on

13 July 1983.

1.

The appl icant a l leges that he was employed

in the New South Wales Police Force from February 1968

until 15 July 1983, being the date on which h i s resigna-

t ion took ef fec t . H e fur ther a l leges that on 2 May 1983

he applied for a posi t ion as a constable in the Austral ian

Federal Police and tha t on o r about 27 June 1983 he

received a le t ter bearing that date signed by Inspector

M . J . M . Vincent which, so f a r as material for present

purposes, read -

"I r e f e r t o your appl icat ion for employment

with the Australian Federal Police, as a Constable

in the General Policing Component, and I am

pleased to advise that the application has	been
successful , and accordingly, you are offered

appointment a t tha t rank .

"If you wish t o accept this offer of

employment you should sign the attached 'Acceptance

of Offer' document and re turn it t o m e within seven

( 7 ) days. Before signing the document please read

it carefu l ly so that you.understand the terms under

which you are being offered	employment with the
Australian Federal Police.

"Should you not wish t o accept this offer

please not i fy M r Vincent as soon as poss ib le in

wr i t i ng or by telephoning the Recruiting Office,

[phone].

"You should report t o the Officer-in-Charge,

Australian Federal Police Recruiting Unit,

Havelock House, Northbourne Avenue, Turner, ACT

a t 8 .00 a m on Monday, 18 July 1983."

The applicant says that he signed the form of

acceptance enclosed with that letter and forwarded i t t o

the recru i t ing of f ice of the Australian Federal Police. Subsequently, on 12 J u l y 1983, he was interviewed by

the respondent and on 13 July 1983 he received a l e t t e r

2.

bearing that date signed	by	the respondent	reading	as
follows -

"I r e f e r t o a let ter dated 27 June 1983

from Inspector VINCENT of fe r ing you appointment

as a Constable with the Australian Federal

Pol ice . Your reply of acceptance, in paragraph

three,.acknowledgedthat the offer was conditional

upon the satisfactory completion of other matters

and tha t the d isc losure of new information could

l ead to annulment of your appointment.

"As t he r e su l t of information which has

come t o my at tent ion, including that provided

by you during our meeting of 12th July, I have

decided, because of matters not d i sc losed in

your or ig ina l appl ica t ion or a t your subsequent

in te rv iew wi th the recru i t ing of f icer , tha t the

offer of appointment to the Austral ian Federal

Police previously made t o you is withdrawn.

Accordingly, you w i l l no t be required t o

repor t t o t he Of f i ce r i n Charge, Recruiting

Branch on	Monday 18 July 1983 as previously
arranged. "

The decis ion which the applicant seeks to have

reviewed i s t h a t embodied i n t h e l e t t e r d a t e d 13 Ju ly 1983.

Immediately upon rece iv ing the le t te r da ted

13 Ju ly 1983 the applicant sought legal advice. H e was

advised to commence proceedings in the Supreme Court of

the Austral ian C a p i t a l Territory. Proceedings were very

shor t ly the rea f t e r commenced i n t h a t Court against the

Commissioner of the Australian Federal Police alleging -

(a)	t h a t by an o r a l agreement made on 1 7 June
1983 the Commissioner agreed to employ the
appl icant as a constable in the Austral ian

Federal Police;

3 .

in the a l t e rna t ive , t ha t by a wr i t t en

agreement made on 28 June 1983 the

Commissioner	appointed the applicant to
t h a t o f f i c e ;	and

t h a t by the same wr i t ten agreement the

Commissioner agreed to appoint him t o

t h a t o f f ice.

The ac t ion was brought on for hearing expedi-

t ious ly . It was heard on 15, 16 and 26 September 1983

and judgment was given on 7 October 1983. The act ion was

dismissed. Further argument ook p l ace in the Supreme

Court on 15 October 1983 but, again, the applicant was

unsuccessful. I was informed t h a t no appeal has been

in s t i t u t ed aga ins t t he judgment of that Court .

The applicant then took further legal advice.

As a r e s u l t an appl icat ion for an order of review under

the Act was f i l e d i n t h i s Court on 1 November 1983.

It i s common ground t h a t had the appl icat ion

been f i l e d on or before 1 0 August 1983 no extension of

time would have been necessary (sub-paragraph 11 (3) (b) (iii)

of the A c t ) . An extension of something less than 3 months

i s , therefore, sought.

For the applicant i t w a s submitted that, had

the appl icat ion been f i led wi th in the prescr ibed t i m e , the

4 .

?

Court would, in the exerc ise of i t s d iscre t ion , have

stayed proceedings thereon while the applicant pursued

the a l t e rna t ive remedy that he was seeking in the Supreme

Court proceedings. It was further submitted that the

appl icant had provided a	satisfactory explanation for such
delay as had occurred in	commencing the proceedings in

t h i s Court and tha t t he re w a s no subs tan t ia l p re judice to

the respondent by reason of that de l ay .

The appl icat ion was opposed on a number of

grounds. It was said that the respondent w a s not aware

until the appl icat ion was f i l e d on l November 1983 t h a t

proceedings under the Administrative Decisions (Judicial

Review) A c t 1977 were contemplated. I t was a l so sa id

tha t the appl icant had not sa t i s fac tor i ly expla ined why

he could not have taken the formal step of commencing the

proceedings within the prescribed period even i f t h e

appl icant intended that the proceedings in the Supreme

Court should have p r i o r i t y . It was further submitted that

t he Court should take into account the public interest i n

t h e f i n a l i t y of l i t i g a t i o n and tha t the de lay in commencing

the proceedings had been due so le ly t o the appl icant ' s

desire to pursue an al ternat ive remedy. An argument w a s a l so

put that the issues of substance that would a r i s e on the

appl icat ion for an order of review had already been decided

adverse ly to the appl icant in the Supreme Court proceedings

and t h a t , by h i s app l i ca t ion to th i s Cour t , t he app l i can t

5 .

was seeking a review of the findings made by the Supreme

Court. In consequence, it was said, this Court should

refuse to exercise its discretion in the applicant's favour.

Finally, it was submitted that there was no basis upon

which the Court could grant the declaration sought by the

applicant that he should have been and should be appointed

to the Australian Federal Police.

On the hearing of an application for the extension

of the time within which to bring proceedings under the Act,

the merits or otherwise of the substantive application may

properly be taken into account as a consideration relevant

to the exercise by the Court of its discretion: Lucic v.

Nolan (1982) 45 A.L.R. 411 at p. 4 1 7 . Counsel for the

applicant accepted that proposition but contended that,

unless it could be shown that the application had o merit

whatsoever, the Court should not rely on any doubt it

might have as to the ultimate outcome of the proceedings

as a ground for refusing the extension of time. He further

submitted that even if it were correct to say, as the

respondent did, that some of the matters which the applicant

sought to raise in the proceedings in this Court had been

the subject of consideration by the Supreme Court, it was

demonstrable that the proceedings in that Court did not

cover the whole of the ground on which the applicant sought

to base his claim to relief under section 5 f the Adminis-

trative Decisions (Judicial Review) Act 1977. There were,

6 .

he contended, a number of legal points and a number of

factual matters with which the Supreme Court was not concerned but which are open to be argued before this

Court should the application for extension	of time be
granted.

As at present advised there would seem to be

a number of difficulties standing in the way of the

applicant establishing that he is entitled to the relief

sought in the application filed on 1 November 1983. Some

of those matters were adverted to during the hearing of

this application. However, because of the nature of the

present application they were not fully argued and I do

not propose to express any views on them. It is sufficient

for present purposes to say that the substantive application

appears to raise some matters which were not, and could

not be, in issue in the proceedings in the Supreme Court.

Notwithstanding the matters relied upon by the

respondent, I am of opinion that the applicant has discharged

the onus resting upon him to satisfy the Court that the

extension of time sought should be granted. He has, in

my view, provided an acceptable explanation of the delay

and it is fair and equitable in the circumstances to accede

to his request.

7.

I, therefore, order that the time within which

to bring proceedings under the Act for an order of review

in respect of the decision of the respondent embodied in

the letter dated 13 J u l y 1983 be extended up to and includ-

ing 1 November 1983.

I certify that this and the

preceding seven (7) pages are

a true copy of the Reasons for

Judgment herein of the; Honourable

Mr. Justice Neaves.

DATED: 9 December 1983

. c3 -

Associate

8.