Collins v Department of Finance & Deregulation (No.3)

[2012] FMCA 860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLLINS v DEPARTMENT OF FINANCE & DEREGULATION (No.3) [2012] FMCA 860

ADMINISTRATIVE LAW – Administrative decision – judicial review – applicant seeking act of grace payment – application for extension of time in which to file application – rejection of lodgement of application by Registry – whether rejection correct – whether acceptable reason for delay – whether failure to follow principles outlined in departmental circular – whether a breach of the rules of natural justice.

PRACTICE AND PROCEDURE – Administrative decision – judicial review – application for extension of time in which to file application – consideration of relevant factors.

EVIDENCE – Authenticity and admissibility of departmental circular – no evidence of provenance – inferences from document itself – authenticity not disputed by Commonwealth as model litigant – inference to be drawn from lack of dispute.

Aboriginal Councils and Associations Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6, 11(1), (3), (6) and (7), 17, 42
Evidence Act 1995 (Cth), s.48(1)(f)(ii), 58, 183, Dictionary
Federal Magistrates Court Rules 2001 (Cth), rr.4.02, 4.05, 42.02(2), 42.03(1)(b)(i)
Financial Management and Accountability Act1997 (Cth), s.33, 65
Financial Management and Accountability Regulations 1997 (Cth), reg.29(1)
Freedom of Information Act1982 (Cth)
Judiciary Act 1903 (Cth), s.55ZF

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Securities and Investment Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417
Clement v Minister for Finance and Deregulation [2009] FMCA 43
Collins v Indigenous Business Australia [2008] AATA 505
Collins v Department of Finance and Deregulation [2011] FMCA 240
Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2002] FCA 1018
Craig v South Australia (1995) 184 CLR 163
G & M Nicholas Pty Ltd & Ors v Minister for Finance and Deregulation (2009) 174 FCR 471; [2009] FCA 121
Haining v Drake & Ors (1998) 87 FCR 248
Hamilton & Anor v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 349
Hamilton & Anor v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jarraman Arts Aboriginal Corporation v Tourism Australia [2004] FCA 1536
Jarraman Arts Aboriginal Corporation v Tourism Australia (No. 2) [2005] FCA 30
Jarraman Arts Aboriginal Corporation & Anor v Tourism Australia & Others (No. 3) (2005) 144 FCR 233; [2005] FCA 983
Koppen v Commissioner for Community Relations (1986) 11 FCR 360
Lindsay v Director of Professional Services Review [2011] FCA 262
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
National Australia Bank Ltd v Rusu & Ors (1999) 47 NSWLR 309; [1999] NSWSC 539
Re Minister for Immigration & Multicultural Affairs; Ex pare Lam (2003) 214 CLR 1; [2003] HCA 6
Stead v Government Insurance Commission (1986) 161 CLR 141
Sullivan v Department of Transport (1978) 20 ALR 323
Toomer v Slipper [2001] FCA 981
Transport Workers’ Union v School Bus Contractors Pty Ltd (2011) 246 FLR 430; [2011] FMCA 28

E. Campbell and M. Groves “Time Limitations on Applications for Judicial Review” (2004) 32 Fed L Rev 29

Applicant: SHIRLEY ANNE COLLINS

Respondent: DEPARTMENT OF FINANCE & DEREGULATION

File Number: DNG 10 of 2010

Judgment of: Lucev FM

Hearing date: 21 June 2011

Date of Last Submission: 21 June 2011

Delivered at: Perth (by telephone to Darwin and Canberra)

Delivered on: 21 September 2012

REPRESENTATION

Counsel for the Applicant: Mr J Mathews

Solicitor for the Applicant: Mathews Legal

Counsel for the Respondent: Mr P Vane-Tempest

Solicitors for the Respondent: Blake Dawson

ORDERS

1. That the applicant’s application for an extension of time in which to file her application be granted, and the time for filing of the applicant’s application be extended, under s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), to the time of actual filing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 10 of 2010

SHIRLEY ANNE COLLINS

Applicant

And

DEPARTMENT OF FINANCE & DEREGULATION

Respondent

REASONS FOR JUDGMENT

Extension of time application

1. Before the Court is an interlocutory application by the applicant, Ms Collins, under s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth),[1] for an extension of time in which to lodge the substantive application.[2]

   [1] “ADJR Act”.

   [2] “Extension of Time Application” and “Substantive Application” respectively.

Substantive application

1. The Substantive Application seeks an order for review, seemingly under s.5, but possibly also under s.6 of the ADJR Act, of a decision[3] to reject an application for an act of grace payment to be made under the provisions of s.33 of the Financial Management and Accountability Act 1997 (Cth),[4] in respect of which a Statement of Reasons dated 26 October 2010 was published,[5] by Dr Guy Verney an assistant secretary for Special Claims with the respondent, the Department of Finance and Deregulation.[6] The Substantive Application was lodged by Ms Collins on 14 December 2010. The Department argues that the Substantive Application was lodged out of time, and that it ought to have been lodged 28 days after the Statement of Reasons were furnished to Ms Collins on 27 October 2010, that is by 24 November 2010.[7]

   [3] “Decision”.

   [4] “FM & A Act”.

   [5] “Statement of Reasons”.

   [6] “Department”.

   [7] There is some dispute as to whether the Statement of Reasons were furnished to Ms Collins on 26 or 27 October 2010, but that dispute is not capable of final determination on the basis of the evidence as it presently stands. The Court has therefore taken the date most favourable to Ms Collins.

2. Section 11(1)(c) of the ADJR Act provides that an application for order for review made to this Court:

   … shall be lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

3. Section 11(3)(a) of the ADJR Act provides as follows:

   (3)  The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

   (a)  if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision--the day on which a document setting out the terms of the decision is furnished to the applicant; or …

Factual background and litigation history

1. Before dealing with the Extension of Time Application, it is necessary to set out the rather lengthy factual background and litigation history of the matter, in order to attempt to understand the matters relied upon in support of, and in opposition to, the Extension of Time Application.[8]

   [8] The factual background and earlier litigation history which follows repeats significant parts of what was said by this Court in Collins v Department of Finance and Deregulation [2011] FMCA 240 at paras.7-22 inclusive per Lucev FM (“Collins (No. 1)”).

2. Ms Collins is a prominent Aboriginal elder. Jarraman was incorporated as an aboriginal association on 11 November 1994, under the provisions of the former Aboriginal Councils and Associations Act 1976 (Cth).[9] Jarraman was ultimately deregistered in October 2009. Ms Collins was Jarraman’s chairperson at the relevant times.

   [9] “ACA Act”.

3. In April 1999 there was a proposed Bank of America Down Under tour,[10] to be conducted in the United States. Jarraman agreed to participate in the Tour. Grants were provided in relation to Jarraman’s presentation and promotion of aboriginal arts in the course of it agreeing to participate in the Tour.

   [10] “the Tour”.

4. Jarraman approached the then Aboriginal and Torres Strait Islander Commission,[11] for financial assistance to further Jarraman’s participation in the Tour. Following reports prepared by Auslink and Deloitte, ATSIC provided a loan,[12] with security, to Jarraman, in the sum of $160,000. Security documents were executed. They included a third mortgage on residential property, owned by Ms Collins, and a bill of sale over stock, assets and the business of Jarraman. The ATSIC Loan was apparently one over 12 months, with interest, and the first payment was scheduled for the end of October 1999.

   [11] “ATSIC”.

   [12] “ATSIC Loan”.

5. The involvement of Jarraman in the Tour was limited. It evidently became clear to Jarraman that the Tour was not going to be financially viable for it, and Jarraman withdrew from the Tour early in October 1999 and returned to Australia.

6. There were no repayments made by Jarraman under the ATSIC Loan. In May 2000, ATSIC served on Jarraman notices demanding repayment of the principal and accrued interest under the ATSIC Loan for a sum in excess of $168,000. In August 2000 ATSIC exercised rights of seizure under the bill of sale over Jarraman’s assets. There were also, at or about that time, settlement negotiations involving Tourism Australia, which had been involved in the arrangements with Jarraman for the Tour, and others, but not Jarraman or Ms Collins. Those negotiations, it would appear, included consideration of a compensation package to Jarraman, of up to $100,000. In or about July 2001, it appears that ATSIC made a decision to:

   a)release Ms Collins from the bill of sale over the Jarraman property;

   b)pursue the ATSIC Loan debt; and

   c)retain the registered third mortgage over Ms Collins’ residential property, until such time as she sold that property.

7. Mr Percival seemingly became involved at or about this point in time. Mr Percival completed a report in January 2002, which he submitted to ATSIC, on behalf of Ms Collins. There were then statutory changes to the arrangements with respect to ATSIC, resulting in its functions being taken over by other agencies.

8. There have been a number of proceedings in relation to this issue. In October 2003 ATSIC initiated proceedings against Jarraman and Ms Collins, in the Northern Territory Supreme Court, for payment of moneys due and payable under the ATSIC Loan. It would appear that that resulted in Ms Collins making a decision to sell her house. Ms Collins’ house was sold in February 2004, and a sum of $30,000 was paid to ATSIC, and the remainder of the proceeds of the sale were deposited in a term deposit account in Ms Collins’ name.

9. There have been prior proceedings in the Federal Court in relation to the issues between Ms Collins and Jarraman, and ATSIC (and its successors) and Tourism Australia. In Jarraman Arts Aboriginal Corporation v Tourism Australia[13] the statement of claim in trade practices proceedings brought by Jarraman and Ms Collins was struck out. Leave was granted to file an amended statement of claim. There was also an order that the matter be referred for mediation, and certain directions made with respect to security for costs.[14]

   [13] [2004] FCA 1536 (“Jarraman (No. 1)”).

   [14] Jarraman (No. 1) at paras.40-41 per Mansfield J.

10. In the second case, Jarraman Arts Aboriginal Corporation v Tourism Australia (No. 2),[15] the Federal Court ordered that Jarraman provide ATSIC with security for costs.[16] In this case the Federal Court observed that Jarraman’s and Ms Collins’ “impecuniosity preceded any dealings relating to the [T]our”.[17]

    [15] [2005] FCA 30 (“Jarraman (No. 2)”).

    [16] Jarraman (No. 2) at para.36 per Mansfield J.

    [17] Jarraman (No. 2) at para.24 per Mansfield J.

11. In the third case Jarraman Arts Aboriginal Corporation & Anor v Tourism Australia & Others,[18] the enforceability of agreements reached at a mediation in April 2005 was in issue. The Federal Court:

    a)declared that two agreements reached at mediation were binding and enforceable;[19] and

    b)stated that there was no evidence that the actions of Indigenous Business Australia,[20] which was a successor to ATSIC, were unconscionable. The Federal Court observed that “the evidence simply does not support the contention that IBA’s conduct leading up to the mediation was unconscionable.”[21]

    [18] (2005) 144 FCR 233; [2005] FCA 983 (“Jarraman (No. 3)”).

    [19] Jarraman (No. 3) FCR at 248 per Mansfield J; FCA at para.51 per Mansfield J.

    [20] “IBA”.

    [21] Jarraman (No. 3) FCR at 246 per Mansfield J; FCA at para.44 per Mansfield J.

12. In Jarraman (No. 3) the Federal Court found that:

    At the mediation, Jarraman and Ms Collins were represented by senior and junior counsel, as well as by their solicitor. They had the support of their accountant. There is nothing upon which it could be found that their will was imposed upon in any unfair way leading to the IBA Agreement or the All Parties Agreement.[22]

    [22] Jarraman (No. 3) FCR at 246 per Mansfield J; FCA at para.44 per Mansfield J:

13. The Federal Court ordered costs against Ms Collins and Jarraman payable to other parties in the action including IBA, Tourism Australia and Deloittes.[23] It would appear that the sum of money which Ms Collins had set aside in a term deposit account from the proceeds of the sale of her house, was disbursed to pay, amongst other things, legal costs and other costs arising from the above litigation.

    [23] Jarraman (No. 3) FCR at 248-249 per Mansfield J; FCA at paras.53-54 per Mansfield J.

14. There were then proceedings in Collins v Indigenous Business Australia[24] in the Administrative Appeals Tribunal. Ms Collins was seemingly successful in obtaining access to documents under the Freedom of Information Act1982 (Cth) by reason of that action, but that there was no order for costs made in respect of certain parts of that application.

    [24] [2008] AATA 505.

15. The issues have also been the subject of consideration by the Commonwealth Ombudsman’s office.

16. The Court sets out the above background, not to make any comment upon the merits of the matter, but to indicate that the matters for consideration in the Act of Grace Payment Claim have a long and complex legal and factual history.

17. Ultimately, as a consequence of Mr Percival’s involvement, an application was made to the then Minister for Finance and Deregulation, Mr Tanner, requesting that Ms Collins’ claim for compensation in relation to the matters surrounding the Tour be considered under the act of grace payment provisions of the FM & A Act.[25] The Act of Grace Payment Claim was not granted, and the component claims that were made in respect of it were also not accepted.

    [25] “Act of Grace Payment Claim”.

18. A number of component claims were made by Ms Collins as part of the Act of Grace Payment Claim. They involve difficult and complex legal issues in relation to:

    a)advice given on the ATSIC Loan to Ms Collins,

    b)whether it was appropriate for Ms Collins to have a third mortgage of security for the loan to Jarraman;

    c)whether ATSIC illegally destroyed security held by Ms Collins;

    d)whether there was negligence and breach of statutory obligations by ATSIC officers; and

    e)whether or not ATSIC should have advised Ms Collins that Tourism Australia was considering a settlement of up to $100,000.

19. Various claims of misleading and deceptive conduct were also made by Ms Collins as part of the Act of Grace Payment Claim. It is worthwhile noting claims that:

    a)Ms Collins should not have been held personally liable for the ATSIC Loan by reason of her personal security; and

    b)Ms Collins’ personal security was ultra vires the ACA Act,

    were previously not upheld by the Federal Court.[26] Claims that were made (and seemingly continue to be made) that Ms Collins entered into the mediated settlement agreements under pressure, to put it neutrally, are clearly inconsistent with findings already made by the Federal Court in Jarraman (No. 3), as set out above.[27]

    [26] Jarraman (No. 3) FCR at 245-246 per Mansfield J; FCA at paras.41-42 per Mansfield J.

    [27] See paras.15 and 16 above.

20. The reviewer, Dr Verney, set out all of the above matters, and other matters, in the Statement of Reasons as follows:

    6. Six months prior to the Tour commencement, Mrs Collins was approached to participate. Jarraman agreed that same month and preparations commenced, which included trying to seek funding. Mrs Collins approached ATSIC in relation to a business loan at the end of June 1999, and requested that ATSIC fund professional services from Auslink, who had previously assisted Jarraman, to prepare a business plan for Jarraman. ATSIC agreed. Deloitte received a project plan from Jarraman on 8 August 1999 and a completed application was not provided until 13 August 1999, a month before the commencement of the Tour. ATSIC approved the loan, noting deficiencies in the Jarraman business plan, and it was executed on 30 August 1999, with securities and a Solicitor’s Certificate confirming that Mrs Collins and Jarraman had received legal advice. While Mr Percival claims that neither the solicitor, ATSIC nor AGS remember who prepared the certificate, it was signed by the solicitor and Mrs Collins.

    7. It is recognised that the timeframe of six months, in which Mrs Collins and Jarraman had to organise Jarraman’s participation and funding, was extremely tight. However, a decision was made by Mrs Collins and Jarraman to seek a loan from ATSIC in order to participate in the Tour and the claimed inducement for Jarraman to participate cannot be directed at ATSIC. It is noted ATSIC was not aware of the Tour until approached for funding by Mrs Collins in June 1999 and did not approve the business loan until a month before Jarraman’s departure to attend the Tour. ATSIC made every attempt to assist and consider the business loan application within a limited timeframe. Although Mrs Collins is aggrieved by the financial consequences of participating in the Tour, ATSIC was not a party to the arrangements of the Tour. There is also evidence ATSIC attempted to work with Mrs Collins on the loan repayments as much as possible within its legal obligations, by forgiving interest accrued on the loan and not pursuing the residential property or bankruptcy of Mrs Collins.

    8. The third registered mortgage on Mrs Collins’ residential property was a private business decision, which enabled Jarraman to secure the funding it needed to participate in the Tour. It was reasonable for ATSIC to seek security from Jarraman and/or other interested parties, to protect and mitigate, at least partially, any financial risk and exposure to ATSIC of the loss of public funds. It is standard commercial practice for a lender to require security in exchange for a loan. It was also appropriate for ATSIC to make a business decision to pursue recovery of the loan via the security.

    9. The Court considered Jarraman’s incorporation under the former ACA Act. The Court reviewed the ACA Act’s limited liability provision and Jarraman’s rules and noted that they did limit the liability of Jarraman’s members. However, the Court found that this limit to a member’s liability did not apply when a member had separately undertaken the same liability, such as Mrs Collins had done when she took on the liability and secured the repayment of the ATSIC loan. The Court found that Mrs Collins’ liability existed independently of her membership with Jarraman.

    10. Mrs Collins had a choice not to use her residential property to help secure the loan with ATSIC. She also had legal representation at the time. Had Mrs Collins not attached a third registered mortgage in ATSIC’s favour, then the ATSIC loan may have been denied. This probably would have prevented Jarraman from participating in the Tour, and consequently limited the losses incurred by the parties. However, Mrs Collins elected to give ATSIC the third registered mortgage on her residential property as security. It is unreasonable for Mr Percival and Mrs Collins, as business people, to attribute responsibility against ATSIC for the financial losses incurred by Jarraman and Mrs Collins when their business venture failed in the USA. The Loan Agreement was only executed two weeks prior to departure. ATSIC had no involvement in the Tour or its failure to wield the potential profits forecasted for Jarraman.

    11. While ATSIC had the option to write off the debt, it elected not to knowing it could recover, at least partially, under the loan agreement via its security. ATSIC had the choice to seek recovery of the loan via bankruptcy proceedings, but elected not to, noting it would continue to have an interest in Mrs Collins’ residential property. Mrs Collins sold her property in order to pay legal costs, and was therefore required to pay ATSIC and Westpac according to its registered mortgages. It was the decision of Mrs Collins to sell her property, which was not as a result of ATSIC’s actions. It would be inappropriate for the act of grace mechanism to compensate Mrs Collins for the loss of her house, which had three registered mortgages, when it was a personal decision of Mrs Collins to sell and not due to the actions of the Australian Government.

    12. Mrs Collins and Jarraman pursued the relevant parties through the legal system and via mediation received compensation payments from Deloitte, Auslink and Tourism Australia. However, these payments were insufficient to cover Mrs Collins’ and IBA’s legal costs and the loan. It would not be appropriate for IBA to pay Mrs Collins’ compensation for her losses from the Tour, as Jarraman had already made the decision to participate in the Tour prior to any application with ATSIC. Also, ATSIC and then IBA were entitled and had a legal obligation to recover the public funding provided to Jarraman under the loan agreement. In each of the legal cases filed by Jarraman and Mrs Collins, they made private decisions to pursue each respondent, had legal representation and should have been informed if not already aware of the risks of litigation.

    13. ATSIC did not have a duty of care to Mrs Collins in relation to reporting the deliberations concerning another agency’s legal affairs. It would not have been appropriate for ATSIC to inform Mrs Collins that Tourism Australia was considering a compensation package of up to $100,000 in 2000. That information was provided to ATSIC by its legal representatives AGS and ATSIC was not an advocate for Mrs Collins’ legal claims against other parties. ATSIC had a Loan Agreement with Jarraman, not Tourism Australia. It was for Tourism Australia to negotiate and share any proposed offers of compensation directly with Jarraman and Mrs Collins. In 2003, Mr Percival and Mrs Collins received a copy of the file note advising of Tourism Australia’s $100,000 settlement deliberation in documents received from ATSIC under the FOI Act. Despite having this information in 2003, it is noted that Mrs Collins and Jarraman did not settle with Tourism Australia until the mediation conducted in 2005. Also, the final payment agreed by Tourism Australia in the mediation was within the range of its consideration in 2000. Therefore, it is debateable whether an agreement would have been reached earlier, had Mrs Collins been provided this information prior to 2003.

    14. Via mediation on 12 April 2005, the total settlement amount was $90,000 less the costs of the strike out action to IBA of $25,000. However, after the set off of costs payable by Mrs Collins and Jarraman to Tourism Australia and Deloitte, Mrs Collins was left approximately $10,000. IBA accepted $10,000 in full satisfaction of its costs of $30,000 for specific performance. The decision to not repay according to the Loan Agreement to ATSIC, the legal pursuit of compensation from ATSIC and the costs incurred by Jarraman and Mrs Collins, were due to the actions of Jarraman and Mrs Collins and not the Australian Government.

    15. The claimed destruction of stock has been fully considered and was effectively resolved by the two agreements of the mediation, found by the Court to be binding and enforceable and the Commonwealth Ombudsman decided not to further investigate this issue.

    16. I noted that some of the claims made by Mr Percival relate to allegations of breaches of the APS Code of Conduct by individuals employed by the former ATSIC, ATSIS and IBA. IBA is not subject to the PS Act, but is governed by the Workplace Relations Act 1996 and its successors. These claims should be considered by the relevant agency (or its successor) under the PS Act or appropriate avenue; it is not appropriate to consider these claims under the act of grace mechanism.

    17. On the basis of the available information and for the reasons above, I considered that I was the appropriate delegate to consider Mrs Collins’ claim and I had also personally spoken with both Mr Percival and Mrs Collins. I acknowledge and am sympathetic with Mrs Collins’ disappointment and distress at arriving on the Tour, only to find that anticipated commercial opportunities and sales did not eventuate and there was no option other than to return to Australia. I also note that Mrs Collins’ general heath and other ailments have worsened during the period of her ongoing legal disputes and the loss of her house and business.

    18. However, I consider that it was a private and commercial business decision of Mrs Collins and Jarraman to seek a loan from ATSIC in order to participate in the Tour. ATSIC provided funding assistance for Jarraman to have professional advice to aid the development of the business plan and it has acted appropriately in seeking to recover a business loan which was partially secured. Further, Mrs Collins and Jarraman had legal representation at the time of the execution of the Loan Agreement, with the same legal representative upon their return to Australia from the Tour.

    19. While I note that Mrs Collins has lost her residential property and is currently on the age pension, Mrs Collins sold her house, has pursued and exhausted legal avenues, and agreed via mediation to the settlement and compensation of claims subject to this request. I consider that ATSIC’s actions to attach security and to seek to recover under the loan agreement were reasonable and in accordance with its obligations under relevant legislation. It was not as a result of the actions of ATSIC that the tour was not financially viable for Jarraman and that it failed to make repayments in accordance with the loan agreement. There are no special circumstance leading to a moral obligation on the Australian Government to grant an act of grace payment to Mrs Collins in this instance equivalent to compensation and claimed losses.[28]

    [28] Statement of Reasons, paras.6-19.

Evidence

1. Two documents were sought to be relied upon as evidence in support of the Extension of Time Application. They were:

   a)Department of Finance and Deregulation Finance Circular No. 2009/09 – Discretionary Compensation and Waiver of Debt Mechanism;[29] and

   b)Ms Collins’ affidavit filed on 20 April 2011.[30]

   [29] “Finance Circular”.

   [30] “Ms Collins’ April 2011 Affidavit”.

2. There were objections to the Finance Circular and to Ms Collins’ Affidavit. Those objections are dealt with hereunder.

Finance Circular - objections

1. In the course of oral submissions Counsel for Ms Collins sought to hand up a copy of the Finance Circular whilst making submissions. The tender was objected to:

   a)because Ms Collins had had opportunity to file material in support of the Extension of Time Application, and had not filed the Finance Circular;

   b)because the Department was prejudiced in that there had been no prior notice that the Finance Circular was to be relied upon; and

   c)on the basis of relevance, as it was asserted that there was nothing in the Finance Circular which indicated that the decision-maker and case manager ought to be separate persons, it being a central contention in Ms Collins’ case that Dr Verney was both decision-maker and case manager, contrary to the rules of natural justice.[31] Indeed, the Department indicated that it did not object to the proposition that Dr Verney administered the application and receipted information, and was also the delegate who made the decision in respect of the application and information received in support of it. The Department submitted that there was nothing wrong, as a matter of law, with the matter being dealt with in that way. No reference was made by the parties, despite invitation by the Court, to any relevant provisions of the Evidence Act 1995 (Cth)[32] in their oral submissions concerning the Finance Circular.

   [31] ADJR Act, s.5(1)(a).

   [32] “Evidence Act”.

2. The Finance Circular was marked as “MFI 1”.

3. The first issue which arises is whether or not the Finance Circular can be said to be authentic. Before the admissibility of a document is considered its authenticity must be established.[33]

   [33] National Australia Bank Ltd v Rusu & Ors (1999) 47 NSWLR 309 at 312 per Bryson J; [1999] NSWSC 539 at para.17 per Bryson J; Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 at 349 per Austin J; [2005] NSWSC 417 at para.117 per Austin J (“Rich”); Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2002] FCA 1018 at paras.52-54 per Carr J.

4. Section 58 of the Evidence Act provides as follows:

   (1)  If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

   (2)  Subsection (1) does not limit the matters from which inferences may properly be drawn.

5. In Rich the New South Wales Supreme Court observed that:

   The law responds to these competing concerns in a commonsense way, bearing in mind the distinction between authentication and the weight or probative value of the documents. In Rusu, Bryson J did not deny that inferences may be drawn from the document itself, relevant to the question of authenticity. Apart from s 58(1), there is express statutory authority to do so in s 183, when a question arises about the applicability of a provision of the Evidence Act. But Rusu insists on the need for authenticity to be established, and asserts that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. The other cases do not deny these propositions, in my opinion.[34]

   [34] Rich ALR at 349 per Austin J; NSWSC at para.117 per Austin J.

6. The Finance Circular on its face purports to be an Australian Government document from the Department and directed to agencies subject to the FM & A Act. The nature of the document, and the detail that it contains with respect to discretionary compensation and waiver of debt mechanisms, including consideration of legal, legislative and policy considerations and constraints, would enable the Court to infer from the face of the document that it is authentic. The Court also notes that the author of the document is Dr Verney.[35]

   [35] Finance Circular, page 6.

7. Prior to the completion of the hearing, Counsel for the Department had obtained a copy of what he understood to be the Finance Circular, and had confirmed that it contained the same number of pages and paragraphs and appendices as the copy before the Court.[36] The Court also arranged, as it indicated during the hearing that it would do, for a copy of the Finance Circular as sought to be tendered by Ms Collins, to be provided to the Department’s solicitors, so that any appropriate application could be made if the Finance Circular sought to be relied upon was in fact not the Finance Circular being referred to by Counsel for the Department.[37] There has been no subsequent application with respect to the Finance Circular. Bearing in mind the obligations of the Department to act in accordance with the Commonwealth’s obligation as a model litigant,[38] the Court can reasonably infer that there is no dispute as to the authenticity of the Finance Circular. Finally, the Court observes that the Finance Circular was referred to in the Statement of Reasons as having been applied by Dr Verney.[39]

   [36] The Court was sitting in Darwin, and Counsel for the Department appeared by video-link from Canberra.

   [37] Transcript at page 17.

   [38] Judiciary Act 1903 (Cth), s.55ZF under which the Attorney-General has issued the Legal Services Directions 2005 which contain, at appendix B, directions as to the Commonwealth’s obligation to act as a model litigant.

   [39] Statement of Reasons, para.3(vi).

8. In the above circumstances, and particularly having regard to the nature and content of the Finance Circular and, ultimately, the seeming lack of dispute as to its authenticity, the Court is prepared to accept that the Finance Circular is authentic.

9. Attachment B to the Finance Circular contains provisions related to the determination of an act of grace payment request, including the following:

   11.Prior to preparing a written report for consideration by the Finance Minister, or delegate, in accordance with procedural fairness requirements, Finance will ensure that the applicant has been provided with an opportunity to comment on the material that will be considered by the relevant decision maker (see paragraphs 27-32).

   12.Based on all available information, a Finance official will then prepare a written report and recommendation for consideration by the Finance Minister, or delegate. All information provided by the applicant will be attached to the report. Having considered the report and attached documents, the decision maker will determine the matter on its individual merits.

   Procedural Fairness

   27.Prior to a decision being made, it is important to ensure that the applicant has been afforded procedural fairness. This includes:

   ·    Providing an opportunity for the applicant to present his or her claims/allegations in writing;

   ·    Providing an opportunity for the applicant to comment on all relevant information/material/documents and/or adverse comments that will be considered by the decision maker; and

   ·    That the determination of the application is free from bias.

10. The Finance Circular is plainly relevant to that part of Ms Collins’ claim which appears to assert that a breach of the rules of natural justice occurred in connection with the making of the Decision, because the case manager and decision-maker ought to have been separate persons. That, as the Court pointed out during the hearing, is one possible interpretation of paragraph 12 of Attachment B to the Finance Circular. The Finance Circular is therefore relevant to a ground raised in the Application. The Finance Circular will be marked as Exhibit 1 in the hearing of the Extension of Time Application.

11. The Finance Circular might also be admissible as to its contents under s.48(1)(f)(ii) of the EvidenceAct as a public document, being a document that forms part of the records of the Crown,[40] and one which it is reasonable to infer, under s.183 of the Evidence Act, was printed by authority of the Commonwealth Government.

    [40] Evidence Act, Dictionary – definition of “public document”.

Ms Collins’ Affidavit – objections

1. About half way through the hearing, Counsel for Ms Collins, prompted by the Court’s questions, ultimately sought to rely upon Ms Collins’ April 2011 Affidavit.[41] The Department objected to all but the first and sixth paragraphs of the eight paragraphs of Ms Collins’ Affidavit.

   [41] Transcript at page 18.

2. Paragraph 2 was objected to on the basis of relevance. Paragraph 2 indicates that Ms Collins relies on the supporting evidence of events attached to the affidavit and marked as Exhibits A1 to A8 to the affidavit. As such, paragraph 2 is itself unexceptional.

3. Exhibits A1, A2 and A3 are correspondence (two letters and an email) from the Department’s solicitors to Ms Collins in January and April 2011. The correspondence does not relate to the merits of Ms Collins’ Extension of Time Application, but rather the procedural aspects of that application once lodged, as it had then been. It is therefore irrelevant to the determination of the Extension of Time Application. Consequently, Exhibits A1, A2 and A3 to Ms Collins’ Affidavit will be struck out.

4. Exhibit A4 to Ms Collins’ Affidavit is a letter to the Secretary of the Department dated 12 January 2011 enclosing correspondence “to the NT Court”.[42] There is however, no such correspondence annexed to Exhibit A4 itself. In the absence of that correspondence Exhibit A4 is not relevant, of itself, to the Extension of Time Application. Exhibit A4 will therefore be struck out.

   [42] “12 January 2010 Letter”.

5. Exhibit A5 is a letter dated 20 December 2010 to the legal manager of the Department dealing with issues in relation to the location and costs of the then forthcoming hearing in this Court. As such, it is irrelevant to the determination of the Extension of Time Application. Exhibit A5 to Ms Collins’ April 2011 Affidavit will therefore be struck out.

6. Exhibit A6 is a copy of a letter from Mr Percival, who was then purporting to act in the proceedings for Ms Collins. The letter is dated 13 December 2010 and addressed to the Registrar of this Court in Darwin.[43] It notes that it is “Hand delivered by Mrs. Shirley A Collins” in relation to an

   Appeal Against Department of Finance & Deregulation in Act of grace Adverse Decision made by its representative Dr Guy Verney.

   [43] “13 December 2010 Letter”.

7. The 13 December 2010 Letter reads, in part, as follows:

   As the enclosed copy email evidence shows my client has tried to lodge the Form 56 with Application for fee waiver (excluding statutory $100.00 fee payment) since October 2010 but the documents kept being rejected by Registry counter staff stating – no file number and get a solicitor

   Just last week my client was advised the documents could have been lodged as presented and this turn around is most concerning now in view of the fact the abovementioned respondent can take the stance the Appeal is out of time to be Heard. … The hurdle put before my client by Registry staff should be accepted as unfortunate by all parties and present documents now be accepted for Hearing as the case to be heard is one in the public interest.

   In making the statement about hurdle same should not be taken as objectionable or affronting as Emails reveal the extent of drama suffered by my client to comply with filing of documents within the time frame set down by legislation, but factors beyond her control caused the problem. Regardless, I understand the Court has discretion to accept documents deemed lodged late and all parties (court and respondent), were kept informed in writing of progress to overcome. My client relies on the court registry office statement recently made to Mrs. Collins that the documents can now be lodged by her The position is one where her Appeal process has been unduly put at risk if Respondent ever tried to be pedantic and exert abuse of legal might to attempt to strike out, which the writer believes would be an abuse of legal process and power.

   My client awaits the Registry office advice on acceptance and lodgement of documents so that sealed Court copies can be served on Respondents.

8. The Substantive Application was filed the day after the 13 December 2010 Letter was written.

9. There is no “enclosed copy email evidence” annexed to Exhibit A6 itself. Nor is there any other evidence presently sought to be put before the Court, save for Exhibits A7 and A8, indicating what steps were taken by Ms Collins, or Mr Percival, with respect to the filing of the application, within or without time. That said, the 13 December 2010 Letter, whilst imprecise, is relevant (and relevance is the only objection here) insofar as it relates to attempts to file relevant documents within time, or before the Substantive Application was filed on 14 December 2010. The objection to the admissibility of Exhibit A6, being the 13 December 2010 Letter, is therefore dismissed.

10. Exhibit A7 is a letter dated 24 November 2010 to the Secretary of the Department indicating that an application is being prepared to review the decision made by Dr Verney with respect to the act of grace payment.[44] The 24 November 2010 Letter is relevant to the issue of what steps were taken to inform the Department of the proposed application, and whether the Department therefore had notice of the proposed application either before or shortly after the time for its lodgement. Significantly, the Department does not suggest in its submissions that it did not have notice of the proposed application either before or shortly after the time for its lodgement. Exhibit A7 is therefore relevant. The objection to the admissibility of Exhibit A7, being the 24 November 2010 Letter, is therefore dismissed.

    [44] “24 November 2010 Letter”.

11. Exhibit A8 is an email dated 5 October 2010[45] from Mr Percival to “[email protected]” copied to Ms Collins, and bearing the subject line:

    Shirley A Collins V Indigenous Busisness Australia_Act of Grace Calim[46]

    [45] “5 October 2010 Email”.

    [46] Typed from the original without amendment.

12. The content of the 5 October 2010 Email, addressed to the “Registrar”, is as follows:

    The above action does not have a file number at the Department of Finance Canberra Special Claims

    The reference point at Special Claims is Dr. Guy Verney and the email address is SFC.

    Any further information needed please email query or contact Mrs. Collins if urgent[47]

    [47] Typed from the original without amendment.

13. The 5 October 2010 Email is relevant to the Extension of Time Application as, although it is dated Tuesday, 5 October 2010, which is three weeks prior to notification of the Statement of Reasons to Ms Collins, it evidences an attempt, albeit a wrong and poorly advised attempt, to initiate an application, seemingly in the Federal Court, with respect to the rejection of the Act of Grace Payment Claim. The objection to the admissibility of Exhibit A8, being the 5 October 2010 Email, will therefore be dismissed.

14. In relation to paragraph 2, and the exhibits referred to therein, Exhibits A1 to A5 inclusive have been struck out. It follows that paragraph 2 should be amended by deleting the words “Exhibit A (1 to 8)” and inserting in lieu thereof the words “Exhibits A6, A7 and A8.”

15. In paragraph 3 of Ms Collins’ April 2011 Affidavit, Ms Collins asserts that the Department:

    a)ignored the 24 November 2010 Letter and the 12 January 2011 Letter; and

    b)did not notify her of its legal representative until 28 January 2011.

16. Ms Collins asserts that this denied her “the opportunity to obtain a request for agreement of formal acceptance of my Application for Hearing being lodged on time or any alleged extension of time that may have been required to obtain consent without court determination.”

17. Whether the Department ignored the 24 November 2010 Letter and the 12 January 2011 Letter, and whether it failed to advise who its legal representatives were, are matters irrelevant to whether the Substantive Application was lodged within time. One does not need to know who the other party’s legal representatives are before lodgement. A lack of knowledge in this respect does not prevent an application from being lodged within time, and then being served on the party itself, in the absence of notification from the party as to their legal representatives.

18. Paragraph 3 is wrong in the assertion that it makes. It is irrelevant because the effect that it says that the alleged ignoring and non-notification had is not one which has any relevant legal effect or application in relation to the Extension of Time Application. Paragraph 3 will therefore be struck out.

19. Paragraph 4 asserts that the Department “appears to have been late in notifying their response to my right at law for the Court to hear my Application.”

20. It is not apparent what “right at law” it is that Ms Collins asserts in paragraph 4. Without an extension of time in which to file the Substantive Application there can be no such right. Paragraph 4 provides no reason for Ms Collins to have been late in filing the Substantive Application. There is nothing in paragraph 4 which is relevant to whether the Court ought to grant an extension of time in which to file the Substantive Application, either on its own, or in conjunction with other matters raised by Ms Collins. Paragraph 4 will therefore be struck out.

21. Paragraph 5 of Ms Collins’ Affidavit provides as follows:

    I rely on the judgment in Case No FMCA 28 (2011), Transport Workers’ Union v School Bus Contractors Pty Ltd, where the court granted an extension of time due to oversight on the part of the Applicant. My Application is not based on oversight but on the grounds that the NT Registry office did not accept my original or subsequent Application as correct in format lodged but then subsequently acknowledged to me in December 2010 that the original amended submission could have been lodged.

22. The Court notes the inherent contradiction in paragraph 5 of Ms Collins’ Affidavit. Transport Workers’ Union v School Bus Contractors Pty Ltd[48] involved the grant of an extension of time due to oversight on the part of an applicant’s representative, that is, by the applicant union of which the dismissed employee was a member. Ms Collins says that the Substantive Application is not based on oversight. Ms Collins’ case is not one of representative error: none is apparent or alleged. Rather, Ms Collins’ Extension of Time Application is based upon non-acceptance of the Substantive Application by the Registry, and then a subsequent acknowledgment by the Registry that the Substantive Application could have been lodged earlier.

    [48] [2011] 246 FLR 430; [2011] FMCA 28 (“School Bus Contractors”).

23. The first sentence of paragraph 5, where Ms Collins indicates that she intends to rely upon the judgment of this Court in School Bus Contractors, is a submission and not evidence. In any event, for reasons outlined above, it is not applicable in this instance as Ms Collins does not rely upon a case of representative error. It follows that the first sentence of paragraph 5 will be struck out.

24. The second sentence of paragraph 5 is a factual explanation as to the basis for the application for an extension of time, and is admissible.

25. Paragraph 7 reads as follows:

    The above points with Exhibits attached are the grounds relating to the alleged late lodgement by Respondent of my Applicant to be Heard in review of the adverse Act of Grace Claim decision that was notified by the Respondent by a facsimile late afternoon on 26 September 2010.[49]

    [49] Typed from the original without amendment.

26. Paragraph 7 is not readily comprehensible. There was no late lodgement of anything by the Department, let alone any application to be heard in review of the Decision. The reference to the “above points” and the “Exhibits” is a reference to other factual material relevant to the late filing of the Substantive Application, as is the reference to the Decision. Paragraph 7 is made sensible and factual:

    a)if a full stop is inserted after “lodgement” in line 2;

    b)the words “by Respondent of my Applicant to be Heard in review of” are struck out; and

    c)“the” in line 3 is amended to read “The”.

    Paragraph 7 should be amended accordingly.

1. Paragraph 8 is in the form of a submission. It is argumentative, and makes assertions or conclusions of law. It is not evidence. Paragraph 8 of Ms Collins’ Affidavit will therefore be struck out.

2. To the extent that paragraphs 8(A), (B) and (C) make submissions, the Court will have regard to the substance of those submissions insofar as they are otherwise relevant to the admissible evidence in relation to the Extension of Time Application.

Extension of Time Application – factors for consideration

1. There is no dispute between the parties that in Hunter Valley Developments Pty Ltd v Cohen[50] the Federal Court set out a non-exhaustive list of factors to be taken into account in the “exercise of an open-textured decision”[51] when considering an extension of time application under the ADJR Act. Those factors were as follows:

   a)whether or not there is an acceptable reason for the delay, with the prima facie rule that proceedings commenced outside the prescribed period of 28 days will not be entertained;

   b)any action taken by an applicant to make a respondent aware of the applicant’s dissatisfaction with the decision prior to the substantive application being lodged;

   c)whether or not there would be any prejudice to a respondent occasioned by any delay, noting that an absence of prejudice alone is not enough to justify granting an extension of time;

   d)the merits of the substantive application; and

   e)considerations of fairness as between an applicant and other persons in a like position.[52]

   [50] (1984) 3 FCR 344 (“Hunter Valley Developments”).

   [51] Haining v Drake & Ors (1998) 87 FCR 248 at 251 per Wilcox and Marshall JJ.

   [52] Hunter Valley Developments at 348-349 per Wilcox J, followed in Lindsay v Director of Professional Services Review & Ors [2011] FCA 262 at paras.10-11 per Edmonds J (“Lindsay”). The principles are discussed in some depth in E. Campbell and M. Groves “Time Limitations on Applications for Judicial Review” (2004) 32 Fed L Rev 29 at 43-51.

2. As indicated above, the list is non-exhaustive, and whether particular factors are engaged depends upon the facts of the particular case.[53]

   [53] Lindsay at para.11 per Edmonds J.

Reason for the delay

1. Ms Collins essentially argued that there was an acceptable reason for the delay in lodgement of the Substantive Application by reason of the conduct of the Registry in relation to her attempts to lodge an application prior to 14 December 2010.

2. The Department argued that Ms Collins bears the onus of establishing that there is no acceptable reason for delay and that she had not discharged that onus.

3. Paragraph 6 of Ms Collins’ Affidavit provides as follows:

   The timetable for last day of lodgement of my Application was the 24 November 2010 from original notification starting on 27 September 2010 of Reasons for Decision. I had previously lodged the Application and supporting documents at the NT Registry office in early October 2010. The NT Registry office finally accepted the documents in early December 2010.

4. The reference to notification on 27 September 2010 of “Reasons for Decision” is obviously a reference to notification of the Decision, as the Statement of Reasons was not signed by Dr Verney until 26 October 2010, which advised Ms Collins that her Act of Grace Payment Claim had been rejected, and in respect of which she requested, on 28 September 2010, the provision of a Statement of Reasons.[54]

   [54] Statement of Reasons, Preamble.

5. There is some evidence to support the contention that Ms Collins tried to lodge the Substantive Application earlier. That can be garnered from:

   a)the unchallenged statement at paragraph 6 of Ms Collins’ April 2011 Affidavit;

   b)the 5 October 2010 Email, which was in the terms set out above.[55]

   c)the 13 December 2010 Letter, which is set out above;[56] and

   d)the application, which was lodged on 14 December 2010.

   [55] See paras.48-49 above.

   [56] See para.44 above.

6. No application could have been lodged prior to 27 October 2010. That is the day when time commenced to run for the purposes of lodging the application. The 5 October 2010 Email is premature, although it can be taken as evidence of Ms Collins’s intention or desire to lodge an application.

7. The 13 December 2010 Letter, the terms of which are not challenged, is consistent with paragraph 6 of Ms Collins’ April 2011 Affidavit and the 5 October 2010 Email in indicating that there had been attempts, probably prior to time commencing to run, to file an application in relation to the original rejection of the Act of Grace Payment Claim on or about 27 September 2010, that is before time began to run for the purposes of the application. The 13 December 2010 Letter also indicates that about a week prior to the filing of the application on 14 December 2010 Ms Collins was advised by someone in the Registry “that the documents can now be lodged by her”. It is apparent by reason of the writing of the 13 December 2010 Letter and the filing of the application on 14 December 2010 that Ms Collins has acted relatively promptly after she says it was confirmed that she could have filed “the documents”. Indeed, the 13 December 2010 Letter goes further and asserts that Ms Collins was advised that “the documents” could previously have been accepted for lodgement “as presented”, although it is not apparent as to whether they were again presented after time commenced to run from 27 October 2010.

8. The above circumstances are ones which would significantly favour an extension of time.

9. The 24 November 2010 Letter was a letter dated on the day upon which the Substantive Application was due to be lodged. The terms of the 24 November 2010 Letter are, relevantly, as follows:

   In the above matter notification is made of an Application being prepared to the Federal Magistrates Court to review the Decision and reasons for Decision handed down in the above matter by Dr Verney Special claims

   The purpose of this latter is to place on record with the Department that any intended action taken to oppose the lodgement being out of time will be objected to for the reasons stated in the enclosed letter to Aboriginal Legal Aid.

10. A copy of the letter to Aboriginal Legal Aid is not “enclosed” and is not otherwise in Ms Collins’ April 2011 Affidavit.

11. Read literally, it would appear that the Substantive Application was not ready to be lodged as at 24 November 2010: it was still “being prepared”. Furthermore, it is clear that at that time Ms Collins, and those then representing her, knew that the time for lodgement of the Substantive Application was about to expire and that the Substantive Application would be filed late.

12. The delay in making the application is not an inordinate delay, but nor is it so short as to be of little or no concern. It is not long enough, of itself, to have an impact upon witness memory retention. In any event, witness memory retention is not likely to be of importance in this application which is an application for judicial review, and not a merits review.

13. It is relevant that s.11(6) of the ADJR Act provides that:

    a)an applicant for an order for review is not limited to the grounds set out in the application, but may also rely on grounds not set out; and

    b)the Court may direct that the application be amended to specify that ground.

    Further, the Court may permit the amendment of a document lodged with the Registry, on such terms as it thinks fit, and also in a manner specified by the Court.[57] Whilst these provisions assume an application lodged within time, or for which an extension of time has already been granted, they do indicate that an application need not be in final or perfect form at the time it is lodged.

    [57] ADJR Act, s.11(7).

14. The Court can only operate on the basis of the admitted evidence. In the absence of a contradictor as to what occurred in relation to matters between Ms Collins, her then representative and the Registry, there is sufficient evidence to suggest that Ms Collins:

    a)tried to lodge an application before time began to run; and

    b)may have been trying to lodge an application in the terms filed, or similar terms, at some time prior to the time of actual lodgement on 14 December 2010, and after time commenced to run on 27 October 2010.

15. In those circumstances, the reasons advanced for the delay in filing the Substantive Application are reasonable.

Action taken to dispute the decision

1. Ms Collins submits, and the Department accepts that Ms Collins took steps to notify the Department that she intended to seek review of the Decision.

2. The 24 November 2010 Letter was action taken by Ms Collins to make the Department aware that she was dissatisfied with the Statement of Reasons. As noted above, it was dated on the day which the Substantive Application was due to be lodged. Given, however, the rationale for examining whether or not there is an acceptable reason for any delay, namely that it relates to:

   a)demonstrating that an applicant has not rested on their rights;

   b)any belief by a respondent as to whether the matter was finally concluded;

   c)the need for finality in disputes; and

   d)witness memory retention,[58]

   the timing of the notification demonstrates that Ms Collins was not resting on her rights, and that the Department ought not to have believed that the matter was finally concluded. In relation to finality of disputes it must also be borne in mind that this dispute concerning the Act of Grace Payment Claim is a separate and distinct dispute from the earlier litigation involving Ms Collins and Jarraman, notwithstanding the many overlapping factual matters.

   [58] Hunter Valley Developments at 348-349 per Wilcox J.

3. In the circumstances, there is no issue that Ms Collins took steps to notify the Department that she intended to seek review of the Decision.

Merits of the Substantive Application

Substantive Application

1. As set out above, the Substantive Application by Ms Collins is seemingly made under s.5, and possibly s.6 of the ADJRAct, with respect to the Decision, reflected in the Statement of Reasons, concerning the Act of Grace Payment Claim by Ms Collins. It is sufficient for present purposes to refer to the grounds of review in s.5 of the ADJR Act.

Legislative provisions

1. Insofar as might be relevant s.5 of the ADJR Act provides as follows:

   (1)  A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the … Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

   (a)  that a breach of the rules of natural justice occurred in connection with the making of the decision;

   (b)  that procedures that were required by law to be observed in connection with the making of the decision were not observed;

   (c)  …;

   (d)  …;

   (e)  that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   (f)  that the decision involved an error of law, whether or not the error appears on the record of the decision;

   (g)  …;

   (h)  …;

   (j)  that the decision was otherwise contrary to law.

   (2)  The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

   (a)  taking an irrelevant consideration into account in the exercise of a power;

   (b)  failing to take a relevant consideration into account in the exercise of a power;

   (c)  …;

   (d)  …;

   (e)  an exercise of a personal discretionary power at the direction or behest of another person;

   (f)  an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

   (g)  an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

   (h)  …; and

   (j)  any other exercise of a power in a way that constitutes abuse of the power.

   (3)  ….

2. Section 11(1) of the ADJR Act provides as follows:

   (1)  An application to … the Federal Magistrates Court for an order of review:

   (a)  shall be made in such manner as is prescribed by:

   …; or

   (ii)  in the case of an application to the Federal Magistrates Court--Federal Magistrates Rules; and

   (b)  shall set out the grounds of the application; and

   (c)  shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

3. Section 11(6) and (7) of the ADJR Act provide as follows:

   (6)  The applicant for an order of review is not limited to the grounds set out in the application but, if he or she wishes to rely on a ground not so set out, the court concerned may direct that the application be amended to specify that ground.

   (7)  The Federal Court or the Federal Magistrates Court may, on such terms as it thinks fit, permit a document lodged with a Registry of the court in connection with an application under this Act to be amended and may, if it thinks fit, direct such a document to be amended in a manner specified by the court.

4. Section 33 of the FM & A Act provides as follows:

   (1)  If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability):

   (a)  one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation);

   (b)  periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

   (3)  Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.

Grounds and relief claimed

1. The grounds of the Substantive Application are not well articulated.

2. The ground which says there is a ground “As set out in all the Correspondence.” and then refers to schedules marked A, B and C, is not a ground of review at all. It does not set out a ground or grounds of review, contrary to s.11(1)(b) of the ADJR Act, and in its terms does not accord with any ground of review under ss.5 or 6 of the ADJR Act. To simply invite the Court to look at three schedules, so called, which are in fact three bundles of documents of various kinds, and which fill a lever arch file, is not to articulate a ground of review.[59]

   [59] The three bundles of documents are annexed to what purports to be an affidavit, filed by Ms Collins on 17 January 2011 (“Ms Collins’ January 2011 Affidavit”), but which is in fact not an affidavit because it is not a written sworn statement of evidence, was not sought to be relied upon in any event.

3. There are, however, the following discernible grounds:

   a)there was a breach of the rules of natural justice[60] because:

   i)Dr Verney ought not to have been both decision-maker and case manager; and

   ii)Ms Collins did not have an opportunity to put her case personally in a face to face meeting with Dr Verney prior to the delivery of the Decision; and

   b)there was deceptive and derogatory conduct in the course of Dr Verney’s determination of the Act of Grace Payment Claim by Dr Verney and the Department. The Court has not taken this to be a ground alleging fraud or bad faith, as it is not particularised as such.[61]

   [60] ADJR Act, s.5(1)(a).

   [61] FMC Rules, r.42.02(2).

4. To the above grounds can be added the improper exercise of power ground,[62] by reason of the Decision being against weight of evidence and because it failed to take into account relevant considerations,[63] which might be said to emerge from the submissions constituted by paragraphs 8(B) and (C) of Ms Collins’ April 2011 Affidavit.

   [62] ADJR Act, s.5(1)(e).

   [63] ADJR Act, s.5(2)(g) and (j).

5. The claimed relief is, again, not well articulated in the Substantive Application, but it appears that the following relief is claimed:

   a)a declaration that the Decision is unlawful;

   b)an order setting the Decision aside;

   c)a remittal of the matter to a different decision-maker; and

   d)an order that Ms Collins and her authorised representative be granted a meeting with the new decision-maker to personally discuss the Act of Grace Payment Claim.

Ms Collin’s submissions

1. Ms Collin’s did not file an outline of submissions in advance of the hearing. As indicated above,[64] the Court will  treat paragraph 8(A), (B) and (C) of Ms Collin’s April 2011 Affidavit as submissions, to be considered together with the oral submissions made by her Counsel.

   [64] See para.65 above.

2. Paragraph 8(A) of the Ms Collin’s April 2011 Affidavit essentially asserts that s.33 of the FM & A Act required that Dr Verney not act as both case manager and decision-maker. Although the Substantive Application, as filed, only refers to s.33 of the FM & Act,[65] the scope of this ground was extended in submissions to include a breach of the rules of natural justice based upon the terms of the Financial Circular.

   [65] It in fact refers to the “Act of Grace Legislation”, but it is apparent that what is being referred to is s.33 of the FM & Act.

3. Paragraph 8(B) of Ms Collin’s April 2011 Affidavit asserts that Dr Verney ignored, overlooked, dismissed, discounted or chose not to give proper weight to the evidence, and cites the destruction of Jarraman stock security as one instance where Dr Verney has “apparently” not independently assessed the relevant evidence.

4. Paragraph 8(C) of Ms Collin’s April 2011 Affidavit asserts that Dr Verney ignored, or did not accord sufficient weight to, the December 2002 Percival Report outlining a possible financial resolution of ATSIC’s debt claim against Jarraman and Ms Collins, particularly having regard to the fact that the Percival Report was allegedly made without knowledge of a then without prejudice offer made by the Australian Tourism Commission.

5. It appears that paragraph 8(B) and (C) seeks to raise an improper exercise of power ground, by reason of failure to take into account a relevant consideration.

6. The oral submissions by Counsel for Ms Collins, after referring to the factors in Hunter Valley Developments, followed the outline of paragraph 8(A), (B) and (C) of Ms Collins’ April 2011 Affidavit.

Department’s submissions

1. The Department submits that the Substantive Application is devoid of merit. It says that:

   a)the pleadings are inadequate and do not comply with the Federal Magistrates Court Rules 2001 (Cth);[66]

   [66] “FMC Rules”.

   b)rule 4.02 of the FMC Rules requires that an application must precisely and briefly state the orders sought, and s.11(1)(b) of the ADJR Act requires that the application set out the grounds of an application;

   c)the grounds are confusing, imprecise, and not in accord with the grounds of review available under s.6(1) of the ADJR Act;

   d)the orders sought by Ms Collins are improper, and not in the nature of orders that can be made by the Court under s.17 of the ADJR Act;

   e)rule 4.05 of the FMC Rules requires that the Substantive Application must be accompanied by an affidavit stating the facts relied upon, and Ms Collins’ January 2011 Affidavit does not state the facts relied upon but is in the nature of a series of allegations;

   f)to the extent that the Substantive Application asserts that Dr Verney was prohibited from making the Decision because he had been involved as case manager, a plain reading of s.33 of the FM & A Act shows that this argument is misconceived;

   g)a review of the detailed Statement of Reasons of Dr Verney demonstrates no other legal error in the making of the Decision;

   h)many of the factual matters raised by Ms Collins have previously been considered by the Federal Court in other proceedings and not upheld; and

   i)even if the Substantive Application were allowed to continue in the Court it is without reasonable prospects of success.

Consideration

Application and affidavits

1. It is fair to observe, as the Department does, that the application and Ms Collins affidavits are wrong in form, poorly drafted and do not readily disclose grounds of application, claims for relief and facts. That is conceded by Counsel for the Ms Collins, who submitted that it would be necessary, if the Extension of Time Application were to be granted, to seek leave to file, at least, an amended application.

2. To look too closely at form is to forgo substance. For reasons set out both above and below:

   a)there is admissible evidence in Ms Collins’ April 2011 Affidavit and the Finance Circular; and

   b)there are discernible grounds of review raised in the application, paragraph 8(A), (B) and (C) of Ms Collins’ April 2011 Affidavit, and the oral submissions of Ms Collins Counsel,

   which when taken together with the Statement of Reasons, which is before the Court as part of the Substantive Application,[67] are sufficient to determine the Extension of Time Application, and which preclude the Extension of Time Application being disposed of in a summary fashion as might seem to be suggested by the Department’s submissions.

   [67] FMC Rules, r.42.03(1)(b)(i).

Natural justice – Dr Verney both report-writer and recommendation-maker and decision-maker

1. This ground is expounded in paragraph 8(A) of Ms Collins April 2011 Affidavit as follows:

   The Act of Grace Legislation requires the Decision Maker to be independent under the legislative provisions for authority to act as a delegate of the Minister. The Decision Maker (Dr Guy Verney) acted as Case Manager in claim preparation in submission of merits review and then acted as Decision Maker against the legislation. Accordingly, Dr Verney in acting as Decision Maker under Act of Grace legislation and beforehand as Case manager to prepare my Claim Material, make merit review thereon his decision can only be determined as null and void. His decision is seen under the Rule of law as invalid.

2. The question is whether there was a breach of the rules of natural justice because Dr Verney both investigated and decided upon the Act of Grace Payment Claim.

3. The rules of natural justice apply to the exercise of the broad discretion invested in the Minister under s.33 of the FM & A Act, because that discretion affects an applicant’s rights by determining whether an act of grace payment may be made. However, if the power is exercised lawfully, the resultant decision is incapable of being impugned.[68]

   [68] G & M Nicholas Pty Ltd & Ors v Minister for Finance and Deregulation (2009) 174 FCR 471 at 479 per Cowdroy J; [2009] FCA 121 at paras.46-47 per Cowdroy J.

4. The particular natural justice issue raised by Ms Collins is seemingly based, and was argued upon, the terms of Attachment B to the Finance Circular which requires that:

   a)“ … a Finance official will … prepare a written report and recommendation for consideration by the Finance Minister, or delegate”; and

   b)that having “considered the report and attached documents, the decision maker will determine the matter on its individual merits.”[69]

   [69] Finance Circular, page 26, Attachment B, para.12.

5. The above terms of the Finance Circular require the preparation of a written report by somebody other than the Finance Minister or delegate. This is further confirmed by the following paragraph from the Finance Circular:

   Prior to preparing a written report for consideration by the Finance Minister, or delegate, in accordance with procedural fairness requirements, Finance will ensure that the applicant has been provided with an opportunity to comment on the material that will be considered by the relevant decision maker ….[70]

   [70] Finance Circular, page 26, Attachment B, para.11.

6. In this case the Department conceded at hearing that Dr Verney was both:

   a)report-writer and recommendation-maker; and

   b)decision-maker (as a delegate of the Minister).[71]

   [71] Transcript at page 20.

7. The Finance Circular sets out a clear two step mechanism whereby:

   a)a report is prepared by the Department with a recommendation as to whether an act of grace payment ought to be made; and

   b)the report and recommendation is then considered by the Minister, or delegate.

   It is clear from the terms of the Finance Circular that this two step mechanism involves at least one different person at each step, namely, the report-writer and recommendation-maker at the first step, and the Minister, or the Minister’s delegate, as the decision-maker, at the second step.

8. Attachment B to the Finance Circular also refers to the following:

   a)that the purpose of the circular is “to provide an overview of mechanisms … available to provide discretionary payments in special circumstances” and “to provide guidance to agencies on how … these mechanisms operate”;[72]

   b)that the operative mechanisms are “permissive, that is they enable decision makers to approve payments, but do not oblige them to do so”;[73]

   c)observes that “general principles, rather than prescriptive rules, underlie the mechanisms. These principles aim to achieve consistency and impartiality in evaluating the merits of cases in different circumstances”;[74] and

   d)that it is “a guidance document and is not intended to be exhaustive” but, nevertheless, describing “the principles and processes that underlie decisions to approve or decline applications”.[75]

   [72] Finance Circular, page 1.

   [73] Finance Circular, page 2, para.3.

   [74] Finance Circular, page 2, para.4.

   [75] Finance Circular, page 24, Attachment B, para.2.

9. The Statement of Reasons prepared by Dr Verney says that the “principles” in the Finance Circular “were also applied in relation to this matter.”[76]

   [76] Statement of Reasons, para.3(vi).

10. There is no suggestion of any form of bias on the part of Dr Verney. It is however conceded by the Department that Dr Verney did not act as report and recommendation writer, or decision-maker, but as both.

11. It is clear that the Finance Circular puts in place procedures intended to be applied in the formation of a report and recommendation related to the exercise of the broad discretion under s.33 of the FM & A Act, and that, in particular, the purpose of those procedures seems to be to ensure that a principled and impartial approach is adopted in evaluating applications for an act of grace payment. Part of that approach is to split the report and recommendation role from the decision making role. That did not occur in this case. If this constitutes a breach of the rules of natural justice there can be little doubt that it is “in connection with” the Decision, because the preparation of the report and making of a recommendation relate to the ultimate making of a decision under the act of grace payment mechanisms set out in the Finance Circular.[77]

    [77] Koppen v Commissioner for Community Relations (1986) 11 FCR 360 at 364 per Spender J.

12. Although s.33 of the FM & A Act is itself silent as to the manner in which the Minister may make a decision with respect to an act of grace payment, s.65(2)(a)(ia) of the FM & A Act provides that regulations may be made to provide for the Minister to consider a report from specified persons before authorising a payment under s.33(1) of the FM & A Act. Regulations have been made under the Financial Management and Accountability Regulations 1997 (Cth),[78] which provide that the Minister must obtain a report from an advisory committee, and consider that report, before authorising any payment for a total amount of more than $250,000.[79]

    [78] “FM & A Regulations”.

    [79] FM & A Regulations, reg.29(1).

13. The form and content of reg.29(1) of the FM & A Regulations requiring that the Minister obtain a report from an advisory committee, and consider that report, before authorising any payment for a total of more than $250,000 as an act of grace payment, might arguably lend support to the contention by Ms Collins that there is a separation between the decision-making role and the report and recommendation-making role in relation to act of grace payments. That is certainly arguable. Alternatively, it might be said that it is a matter specifically regulated by delegated legislation, and therefore indicative of the fact that there is otherwise no requirement for a separation between those roles. It suffices for present purposes to observe that the former contention is arguable, and if correct, supports Ms Collins assertion that there was a breach of the rules of natural justice in the making of the Decision in relation to the Act of Grace Payment Claim.

14. It is arguable that there was a denial of procedural fairness in this case because the procedures that Dr Verney said were being applied, namely the principles in the Finance Circular, were not applied because the report-writing and recommendation role was not separated from the decision-maker role. Further, by reason of the Finance Circular, and its reference to the procedure to be adopted in relation to an Act of Grace Payment Claim, an applicant might have a legitimate expectation that that procedure would be followed. The failure to follow a publicly

promised procedure might give rise to a legitimate expectation.[80]

[80] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20-21 per Mason CJ; Re Minister for Immigration & Multicultural Affairs; Ex pare Lam (2003) 214 CLR 1 at 12-13 per Gleeson CJ; [2003] HCA 6 at paras.34 per Gleeson CJ; Hamilton & Anor v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20 at 37 per Beazley J (an appeal against this judgment was successful in Hamilton & Anor v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349, but the appeal did not deal with this issue).

1. The content of a legitimate expectation no doubt depends upon the particular circumstances of each case. There is, however, sufficient in:

   a)the breadth of the discretion involved under s.33 of the FM & A Act;

   b)the nature of the moral obligation which must give rise to the special circumstances so as to entitle an applicant to discretionary relief by way of an act of grace payment; and

   c)the terms of the Finance Circular,

   to arguably establish a legitimate expectation that the principle in the Finance Circular that the decision-making role would be separated from the report-writing and recommendation role would be followed. The failure to do so would then arguably be a breach of the rules of natural justice because a legitimate expectation has been thwarted.

2. Had the procedures set out in the Finance Circular been followed in this matter, and Dr Verney acted as report-writer and recommendation-maker only, and made a recommendation that the Act of Grace Payment Claim be rejected, in all likelihood the Minister, or the Minister’s delegate, would have accepted the recommendation and made a decision accordingly. The Court cannot, however, be sure, that the Minister, or the Minister’s delegate, would have accepted the recommendation. That is so, especially given:

   a)the breadth of the discretion conferred on the decision-maker by s.33 of the FM & A Act, in relation to which it is “impossible to anticipate the situations in which such payments may be warranted”;[81] and

   b)that any payment authorised to be made is not made by reference to a legal entitlement, but a moral obligation arising from the actions of Commonwealth employees or instrumentalities.[82]

   Therefore, the Court cannot say that, had the procedures set out in the Finance Circular been followed, there might not have been a different decision made by the decision-maker, whether the Minister or a delegate – other than Dr Verney, and that therefore a different result might not have ensued.[83]

   [81] Toomer v Slipper [2001] FCA 981 at para.31 per Weinberg J (“Toomer”).

   [82] Clement v Minister for Finance and Deregulation [2009] FMCA 43 at paras.27-31 per Neville FM.

   [83] Stead v Government Insurance Commission (1986) 161 CLR 141 at 147 per Mason, Wilson, Brennan, Deane and Dawson JJ.

3. It therefore follows that a claim that there has been a breach of the rules of natural justice by reason of Dr Verney being both report-writer and recommendation-maker, has sufficient merit to be arguable.

Natural justice – face to face meeting

1. Natural justice requires that a party be given the opportunity to put their case before the decision-maker, and that that decision-maker not make a decision unless a person has been given the opportunity to comment upon any potential adverse findings to be made by the decision-maker.[84] Absent statutorily prescribed procedures, the means by which an administrative decision-maker receives submissions and hears from the parties is a matter for that decision-maker. There may be an oral hearing, there may be written submissions, there may be one of the aforementioned, or both. But in the absence of statutorily prescribed procedures, the means to be adopted are a matter for the discretion of the decision-maker.

   [84] Sullivan v Department of Transport (1978) 20 ALR 323 at 343-344 per Deane J.

2. In this case, save for reg.29(1) of the FM & A Regulations, there appear to be no statutorily prescribed means by which the Minister, or the Minister’s delegate, must determine an Act of Grace Payment Claim. Likewise, the Finance Circular does not prescribe a procedure, and, in particular, does not require that there be a face-to-face meeting. The reference to “comment” in paragraph 27 of the Finance Circular is not sufficient to establish the necessity for an oral hearing. It could equally refer to written comment. Ultimately, whether an oral hearing of the parties by the decision-maker is required is a matter for the decision-maker. Counsel for Ms Collins suggested in oral submissions that an oral hearing by the administrative decision-maker was necessary in this case to determine credibility issues. It is not immediately apparent to the Court that that is so, particularly where it appears that the credibility issues which might be relevant related to matters which have already been determined by the Federal Court. Whether or not, in forming a view as to whether or not there was a moral obligation on the Commonwealth or its employees in relation to the issues in this matter, was solely the matter for Dr Verney to determine. In those circumstances, there was no breach of the rules of natural justice by Dr Verney in not having a face-to-face meeting with Ms Collins or her representative.

Improper exercise of power - weight of evidence/failure to take into account a relevant consideration

1. Paragraphs 8(B) and (C) of Ms Collins’ Affidavit respectively provide as follows:

   Should the Court find that (A) above is not against Act of Grace legislation the second grounds of this Application is that Dr Verney ignored, overlooked, dismissed, discounted or chose not to give proper weighting to the opposing Evidence provided by Applicant in detailed schedules submitted to the Court of the grounds to Hear the Application for Review of his decision.

   The destruction of Jarraman stock security is just one particular event in evidence that Verney apparently has not assessed independently or legally as being validly made by me. He ignored the factual evidence provided by Deloitte Chartered Accountants (April 2000 report) that proved Jarraman had legal title to stock with ATSIC returned by invitation to suppliers who had lost title thereto from trading terms with Jarraman and did so in return of stock to suppliers on legal advice obtained from Australian Government Solicitor.

   The Decision Maker has ignored weighting of evidence provided in the Percival Report December 2002 that outlined a financial resolution of ATSIC debt claimed against Jarraman/Collins (as Guarantor of Jarraman borrowings) that would have provided a settlement to all parties, where the Percival submission for resolution had no knowledge then of the Without Prejudice offer of up to $100,000 advised by Australian Tourist Commission that would have provided further contributed benefit to all parties involved in the Percival proposal for settlement.

2. There are no statutorily prescribed criteria in relation to the assessment of an Act of Grace Payment Claim. In those circumstances, the matters to be taken into account and weight to be given to the evidence as to those matters are generally for the decision-maker, and not the Court, to determine.[85]

   [85] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Toomer at paras.36-37 per Weinberg J.

3. A decision-maker may make a jurisdictional error if relevant material is ignored.[86]

   [86] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30; Craig v South Australia (1995) 184 CLR 163; Toomer at paras.41-45 per Weinberg J.

4. In this case, it is apparent that Dr Verney:

   a)considered the appropriate legislation;[87]

   b)made detailed findings of fact relating to relevant issues in 103 separate sub-paragraphs over 14 pages of the Statement of Reasons;[88] and

   c)made the abovementioned findings of fact on the basis of a consideration of 231 documents or groups of documents referred to in the Statement of Reasons,[89]

   before making the detailed findings which are set out above.[90] In those circumstances an assertion that the Decision, and the Statement of Reasons in support of the Decision, was against the weight of the evidence does not appear to have any merit. Moreover, the specific matters referred to by Ms Collins, namely the destruction of Jarraman’s stock, and the Percival Report and the $100,000 without prejudice offer advised by Tourism Australia, were matters which were specifically considered by Dr Verney in arriving at the Decision.[91]

   [87] Statement of Reasons, para.3.

   [88] Statement of Reasons, para.4.

   [89] Statement of Reasons, para.5.

   [90] See para.24 above setting out the findings at the Statement of Reasons, paras.6-19.

   [91] See for example Statement of Reasons, para.4(l)–(lxiv) where the Jarraman stock, Percival Report and $100,000 offer of settlement are discussed, and para.4(cii)–(ciii) where the Jarraman stock seizures and the $100,000 offer are again referred to. Likewise, when actually determining the issue the claimed destruction of stock was dealt with: Statement of Reasons, para.15, as were the terms of the Percival Report and the $100,000 without prejudice offer: Statement of Reasons, paras.12-14.

5. In the circumstances, the assertion that there was an improper exercise of power by reason of a failure to properly weigh the evidence or to take into account a relevant consideration is not made out.

Deceptive and derogatory conduct

1. The allegation of deceptive and derogatory conduct by Dr Verney was not particularised and not overtly referred to in oral submissions on Ms Collins’ behalf. The allegation is therefore not made out.

Prejudice to the Department

1. Ms Collins did not make specific submissions on this point. The Department submits that:

   a)it will suffer prejudice in the form of having to defend Ms Collins’ application if the Extension of Time Application is successful; and

   b)even if no prejudice were to be suffered by the Department, mere absence of prejudice is not enough to justify a grant of an extension of time.

2. The Court accepts that there will be prejudice to the Department in the in the form of having to defend Ms Collins’ application if the Extension of Time Application is successful. No prejudice arises by reason of the earlier litigation, particularly in the Federal Court and Administrative Appeals Tribunal, because that earlier litigation did not involve the Department.

Considerations of fairness

1. Ms Collins did not make specific submissions on this point. The Department says that it is not aware of any unfairness that would result as between Ms Collins and any other persons in the same position as Ms Collins if the extension of time were granted.

1. It suffices for the Court to observe that if other applicants for an act of grace payment were to have their applications determined in accordance with the principles set out in the Finance Circular, properly applied, with the report-writing and recommendation role separated from the role of decision-maker, then there may be unfairness to Ms Collins if the Extension of Time Application is not granted. That is because it would deny Ms Collins the opportunity to have the Act of Grace Payment Claim considered upon the same basis as other applicants should have had their act of grace payment claims considered. In the absence of evidence (which could probably only have come from the Department) as to how other applicants have been treated, fairness can only be assessed on the basis of how other applicants for an act of grace payment ought to have had their applications determined. On that basis Ms Collins may have been treated unfairly because the Act of Grace Payment Claim was not considered on the basis of the principles in the Finance Circular.

Conclusion and orders

1. The Court has concluded that:

   a)there is an acceptable explanation for the delay in lodging the Substantive Application by reason of what Ms Collins says is the refusal of the Registry to accept an application for lodgement at an earlier time;

   b)Ms Collins has an arguable case that there was a breach of the rules of natural justice by reason of there being no separation between the report-writing and recommendation role and the decision-making role adopted by Dr Verney in this case;

   c)otherwise, there is no arguable case of a breach of the rules of natural justice;

   d)there is prejudice to the Department in having to defend Ms Collins’ application if the Extension of Time Application is successful; and

   e)Ms Collins may have been treated unfairly if other applications for an act of grace payment have been determined in accordance with the principles set out in the Finance Circular, in circumstances where the Act of Grace Payment Claim has not been so determined.

2. In the circumstances, the Court considers that there is sufficient merit in Ms Collins’ argument for an extension of time in which to file the Substantive Application, particularly by reason of the fact that her failure to file the Substantive Application within time may have arisen from apparently erroneous advice from the Registry, and because there may have been a breach of the rules of natural justice by reason of the failure to follow the principles outlined in the Finance Circular in making the Decision. These considerations outweigh any prejudice to the Department, particularly in circumstances where had apparently erroneous advice not been given to Ms Collins, it appears likely that an application would have been filed within time, or, at the very least, sooner that it was lodged.

3. Ms Collin’s for an Extension of Time Application will, therefore, be granted. The time for filing the Substantive Application will be extended, under s.11(1)(c) of the ADJR Act, to the time of actual filing. To facilitate the making of further programming orders, including and up to the listing of the matter for hearing, a further directions hearing will be necessary. The parties are to confer prior to that directions hearing with a view to reaching consent on some, and preferably all, further programming orders.

4. There will be orders accordingly.

5. The Court will hear the parties as to costs and further directions.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  21 September 2012