FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNCAN v CHIEF EXECUTIVE OFFICER CENTRELINK | [2008] FMCA 810 |
| ADMINISTRATIVE LAW – Appeal against decision of Administrative Appeals Tribunal – appeal on question of law – whether grounds of appeal raise question or questions of law – whether appeal grounds made out. |
| Administrative Appeals Tribunal Act, 1975 (Cth) ss.33, 43AA(1), 44(1), 44AA(1) Federal Court Rules, O 53 r.2 Freedom of Information Act, 1982 (Cth) ss.48 49, 50(1), (2), (3), 55(1), (2), (6), 54(1)(g) and 61(1) Merit Protection Agency (Australian Government Employees) Act 1984 (Cth), s.47 Public Service Act 1992 (Cth) Public Service Regulations (Cth) rr.75, 76, 82, 83, 84 |
| Applicant: | IAN DUNCAN |
| Respondent: | CHIEF EXECUTIVE OFFICER, CENTRELINK |
| File Number: | PEG 146 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 1 November 2007 |
| Delivered at: | Perth |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Applicant: | In person (by written submissions) |
| Solicitors for the Respondent: | Australian Government Solicitor (by written submissions) |
ORDERS
That the appeal be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2007
| IAN DUNCAN |
Applicant
And
| CHIEF EXECUTIVE OFFICER, CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Appeal
The applicant, Mr Duncan, has appealed a decision of the Administrative Appeals Tribunal constituted by Senior Member
Mr S Penglis given on 15 December 2006 in which the Tribunal affirmed the reviewable decision in W2002/409[1]. The Appeal was filed under s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).[2] The Appeal is the latest in a long line of litigation involving
Mr Duncan and Centrelink.[3]
[1] “Appeal”.
[2] “AAT Act”.
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Details
- Case
- [2008] FMCA 810
- Decision Date
CaseChat Overview and Summary
In the matter of Duncan v Chief Executive Officer Centrelink, the appellant, Mr Duncan, challenged a decision by the Administrative Appeals Tribunal (AAT) concerning the determination of a grievance under Regulation 83 of the Public Service Regulations. The Tribunal had upheld the decision of the respondent, Centrelink, that the grievance was determined in accordance with the regulation. The crux of the appeal was whether the AAT correctly justified the respondent's decision that the grievance was determined in accordance with Regulation 83, and whether this decision was 'incorrect' or'misleading'.
The primary legal issue before the court was to determine whether the AAT erred in its assessment of the respondent's justification for the decision regarding the grievance. The court needed to consider whether the AAT's conclusion that the grievance was determined in accordance with Regulation 83 was legally sound, given the AAT's earlier findings. Specifically, the court examined whether the AAT erred in finding that the respondent's decision was justified, despite the AAT's earlier determination that the grievance did not conform to the requirements of Regulation 83.
The court held that the AAT did not make an unequivocal finding that there was no grievance pursuant to Regulation 83. Instead, the AAT relied on an earlier finding that there was a grievance, and further found that there was a grievance under Regulation 83 despite Mr Duncan's intention. The court found that the AAT's conclusion was supported by the evidence before it, and that there was no error of law. The court also noted that even if the question was one of mixed law and fact, the AAT's decision was reasonable and adequately justified. Consequently, the appeal was dismissed.
The court made no orders regarding the costs of the appeal.
The primary legal issue before the court was to determine whether the AAT erred in its assessment of the respondent's justification for the decision regarding the grievance. The court needed to consider whether the AAT's conclusion that the grievance was determined in accordance with Regulation 83 was legally sound, given the AAT's earlier findings. Specifically, the court examined whether the AAT erred in finding that the respondent's decision was justified, despite the AAT's earlier determination that the grievance did not conform to the requirements of Regulation 83.
The court held that the AAT did not make an unequivocal finding that there was no grievance pursuant to Regulation 83. Instead, the AAT relied on an earlier finding that there was a grievance, and further found that there was a grievance under Regulation 83 despite Mr Duncan's intention. The court found that the AAT's conclusion was supported by the evidence before it, and that there was no error of law. The court also noted that even if the question was one of mixed law and fact, the AAT's decision was reasonable and adequately justified. Consequently, the appeal was dismissed.
The court made no orders regarding the costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Question 3 is as follows:3.Was Mr Guthrie’s decision that “the grievance was … determined in accordance with Regulation 83” was not ‘incorrect’ or ‘misleading’ justified by the respondent at the Tribunal?The grounds in support of question 3 as set out in the Appeal are as follows:At para 27 the Tribunal relies on the fact that in W2000/79, Senior Member Hotop determined that the applicant had not lodged a grievance within the meaning of Regulation 82. At para 43 Senior Member Penglis unequivocally makes the finding that “it was not … a ‘grievance’ pursuant to regulation 83.” This was not an unreasonable finding given the applicant’s comprehensive evidence that there was no compliance with any of the subsections of Regulation 83 whatsoever, and the fact that Centrelink offered absolutely no evidence of the existence of any grievance “in accordance with Regulation 83.”Logically if the Tribunal accepted that there was no grievance “within the meaning of regulation 82,” and established on the evidence before it that “it was not … a ‘grievance’ pursuant to regulation 83” then no grievance whatsoever existed that could subsequently be investigated or determined in accordance with Regulation 83.” Yet at para 50 the Tribunal concludes “However, I am satisfied that the respondent has established on the evidence that the acceptance, investigation and determination of the “grievance” was “in accordance with regulation 83”. Clearly, the facts determined by the Tribunal contradict it’s decision. Thee was an error of law in that no reasonable person could draw that conclusion given it’s finding of fact that “it was not … a ‘grievance’ pursuant to regulation 83”. This “question of law” is not a question of law at all. It is rather a query as to whether the decision reached by the FOI Review Officer was justified by the respondent at the Tribunal. At best that is a mixed question of law and fact, and therefore not a question of law.[68] At worst, it is simply an application for a review of the merits and not a question of law at all. Even if it is a question of law, no error of law has been identified and there was ample evidence before the AAT to justify its view that there was nothing incorrect or misleading in the FOI Review Officer’s decision that the grievance was determined in accordance with reg.83.[68] Birdseye at 326. Mr Duncan’s submissions proceed on an erroneous assumption, namely, that the AAT made an unequivocal finding that there was not a grievance pursuant to reg.83 of the Public Service Regulations[69] and that therefore no grievance existed.[69] Mr Duncan’s submissions at para.37 citing AAT Decision at para.43, AP 182. The AAT did not make such an unequivocal finding. Rather, it relied upon the earlier finding that there was a grievance, and made a further finding that there was a grievance under reg.83 notwithstanding that Mr Duncan did not, and did not intend, what he wrote to constitute a grievance.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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