Dan, M.J. v The Director of the Merit Protection and Review Agency

[1993] FCA 28

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOU	TH WALES DISTRICT REGISTRY	) No. NG 543 of 1992
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GENERAL DIVISION 1

BETWEEN:  W C O L M JOHN DAN

Applicant

AFFAIRS AND TRADE

Respondents

Whitlam J.

REASONS FOR JUDGMENT

(EX TEMPORE)

On 5 February 1993 the applicant commenc

Review Agency ("the Director"), the Merit Protection and	proceedings against the Director of the Merit Protectio Disciplinary Appeal Committee ("the Convenor"). The proceedings relate to the dates fixed for hearing of appeals by the applicant to a Disciplinary Appeal Committee ("the Committee") under section 63P of the Public Act 1922. The dates so fixed are 10 and 11 February 1993.
The application came before the Court for directions yesterday. Miss Wilkins of Counsel appeared for the Director
to submit to any order save as to costs, and she also informed the Court that, whilst she had no instructions to appear for the Convenor, the Convenor had informed her instructing solicitor that she too would submit on the same basis. WC Catterns of Queen's Counsel appeared for the applicant and Mr Katz of Counsel appeared for the Secretary, Department of Foreign Affairs and Trade ( "the Secretary" ) . By consent, the Agency was removed as a respondent and the Secretary was added as a respondent. Miss Wilkins was excused from further attendance.
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I ,C ..- . Although the application did not, in terms, claim

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? + * . S grant of relief in terms of paragraph 3 of the orders sought,

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- . v .	that the hearing of the appeals by the Committee be

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, , * deferred until the determination of other proceedings pending

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;in.' th'is Court. This relief was opposed by the Secretary.

Evidence on affidavit by the applicant was read and both

parties tendered documents. The applicant is a former Australian Ambassador. In	1991 he had three charges of misconduct laid against him under
section 63L of the Public Service Act relating to his periods of service as an ambassador. In respect of all three charges there were findings by the inquiry officer that the applicant had committed misconduct. On 5 May 1992 the applicant appealed against those findings to the Committee under section
63P of the Public Service Act. The appeals were out of time,

and the applicant also applied to the Director for an extension of time for appealing. The Director refused to extend the time and the applicant successfully sought judicial review of that decision (No. NG 534 of 1992, Morling J., 21 and 28 August 1992).

Accordingly, the Director proceeded to reconsider the decision. The applicant made further submissions to the Director, and on 21 September 1992 his solicitors alerted the Director to a "doubt as the whether Ambassadors are subject to the Public Service Act disciplinary provisions" and foreshadowed a submission to the effect that the proceedings against the applicant were void. This submission was duly made in extensive written submissions from senior counsel on behalf of the applicant dated 2 and 16 October 1992 which were lodged with the Director. On 29 October 1992 the Director extended the time for the appeals and notified the applicant that she was arranging for the establishment of the Committee.

It is important to note that at this stage the applicant had taken no action to challenge the validity of the three charges which are the subject of the appeals to the Committee. Indeed, even in these proceedings he has not yet done so. Mr Catterns allows that it may be necessary to seek to amend the application so that those charges can be directly impugned if any interlocutory relief in respect of the hearing of the appeals is to be sustained.

I should go back a step at this stage to note that on 17 March 1992 a further seven charges of misconduct had been laid against the applicant under section 63L of the Public Service Act. I am informed that an inquiry has not yet been held into these charges and that their validity has been directly challenged in proceedings commenced on 18 September 1992 (NG 689 of 1992) on the ground (inter alia) that the applicant is not an "unattached officer" within the meaning of section 63L. Mr Catterns says the Committee should await the result of those proceedings before it starts to hear the appeals in respect of the three findings of misconduct.

On 16 November 1992 Agency staff wrote to the applicant's solicitors notifying the hearing dates of 10 and 11 February 1993 for the applicant's appeals before the Committee. On 26 November 1992 the applicant's solicitors wrote to the Director requesting that the appeals be deferred until matter number NG 689 of 1992 was determined. By letter dated 22 December 1992 the Agency staff confirmed the hearing

dates as fixed would stand.

I am informed that on 1 December 1992 proceedings number NG 689 of 1992 were given a hearing date of 20 April 1993. The applicant's solicitor evidently had a telephone conversation with the solicitor for the Secretary on 22 January 1993 in which he said the applicant would be applying to stay the appeals. On 27 January 1993 the applicant's solicitor wrote to the Agency's associate director informing

him of the hearing date on 20 April 1993 for the proceedings pending in this Court and requesting a deferral of the hearing of the applicant's appeals. On 29 January the applicant's

solicitor spoke to the Convenor when she confirmed that the hearing of the appeals would proceed on 10 and 11 February 1993 and that the Committee would consider any jurisdictional argument. The Agency's associate director wrote to confirm this conversation on 1 February 1993. The applicant then swore his affidavit on 3 February 1993 and commenced these proceedings on 5 February 1993.

Mr Catterns relies essentially on the submission that there is good argument that the disciplinary provisions of the Public Service Act do not apply to ambassadors since they are appointed to their office by the Executive Council and that the Committee is acting unreasonably in setting its mind against an adjournment until this Court has resolved this question. Mr Catterns has very attractively expounded the submissions on the Public Service Act contained in the

do not think that the material before me shows that the	submissions filed with the Director last October. However, I
Committee, or indeed for that matter the Convenor, has made up its mind on this issue. It seems to me that the applicant will have the opportunity to make any submissions as to procedure to the Committee. The Committee might adjourn. It might deal with the jurisdictional point as a preliminary issue. There are a number of options open to it. I can certainly discern no closed mind either in the hearsay account of the telephone conversation with the Convenor on 29 January 1993 or the letter dated 1 February 1993 from the Agency's associate director. This application appears to me to be
quite premature. Indeed, as Mr Katz points out, regulation 13
of the Merit Protection (Australian Government Employees) Regulations obliges the Convenor, after taking into account the matters mentioned in paragraphs (c) and (d), to fix the hearing dates. Once that is done, the Committee is master af its own procedure subject to the Merit Protection (Australia Government Employees) Act 1984 (see, for example, section 20) and the Regulation.
I am by no means convinced that the argument in relation to what Mr Katz describes as the "immunity" of ambassadors is so strong that it would be pointless not to intervene at this stage ahead of the Committee considering any procedural submissions by the applicant. Indeed, it seems to me that the definition of "unattached officer" in S. 63J(l)(a)
diplomat holding an appointment as ambassador. Further, as Mr of the Public Service Act is perfectly apt to cover a career
Katz submits, S. 63L(7) permits a person such as an ambassador employed under the Public Service Act to be dealt with also by the exercise of prerogative power.
The application for interlocutory relief is refused. There seems little point in not dismissing the application entirely as it presently stands, but I shall hear the parties on that. The applicant must pay the Secretary's costs of the hearing of the application for interlocutory relief.

I certify that this and the preceding six (6) pages are a true copy of the Ex tempore Reasons for Judgement herein

of His Honour Mr Justice A.P. Whitlam.

Counsel for the appellant:  D.K. Catterns QC

instructed by Hart & Co.

Counsel for the 1st & 2nd respondents: E.A. Wilkins

instructed by Australian Government
Solicitor

Counsel for the 3rd respondent:  L.S. Katz

instructed by Australian Government
Solicitor

Date of hearing:	8 February 1993
Date judgment delivered:	9 February 1993.