Dunstan v Farr

Case [1999] FCA 1551

FEDERAL COURT OF AUSTRALIA

Dunstan v Farr [1999] FCA 1551

ADMINISTRATIVE LAW – review of decisions made by delegates of Commissioner of Taxation – decisions to cease payment of salary to applicant pursuant to Public Service Act 1922 (Cth) pending trial of applicant on criminal charges – whether decisions amenable to review pursuant to Administrative Decisions (Judicial Review) Act 1977 (Cth).

Public Service Act 1922 (Cth) ss 63B, 63C, 63R

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, 341-2 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 applied
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 referred to

COLIN GEORGE DUNSTAN v GREGORY FARR and MICHAEL MONAGHAN
AG 58 of 1999

WEINBERG J
12 NOVEMBER
CANBERRA


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

AG 58 OF 1999

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

GREGORY FARR
First Respondent

MICHAEL MONAGHAN
Second Respondent

JUDGE:

WEINBERG J

DATE OF ORDER:

12 NOVEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay fifty per cent of the respondents’ costs of this application.

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

AG 58 OF 1999

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

GREGORY FARR
First Respondent

MICHAEL MONAGHAN
Second Respondent

JUDGE:

WEINBERG J

DATE:

12 NOVEMBER 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. By application filed on 27 July 1999 the applicant, Colin George Dunstan, seeks review of a decision taken by the first respondent, Gregory Farr, as delegate of the Commissioner of Taxation.  By that decision, which is said to have been made on 21 June 1999, Mr Farr refused the applicant a continuation of payment of his salary, as from 1 April 1999.

  2. The applicant also seeks review of a decision taken by the second respondent, Michael Monaghan, also a delegate of the Commissioner of Taxation.  By that decision, said to have been made on 7 July 1999, Mr Monaghan suspended the applicant from duty, and invited him to submit any matters which he might wish to have taken into account regarding payment of his salary on the ground of hardship resulting from his suspension. 

    Background to the present application

  3. The present application is but the latest in a series of disputes between the applicant and his employer, the Australian Taxation Office (“the ATO”). 

  4. The applicant was born on 27 September 1955.  He is a university graduate, and commenced working in the Commonwealth Public Service in 1982.  He resides in the Australian Capital Territory. 

  5. The applicant harbours longstanding grievances relating to his employment, principally against officers of the ATO and the Human Rights and Equal Opportunity Commission.  His grievances stem from his belief that those officers have failed throughout to deal properly with complaints of sexual harassment made by the applicant against a female fellow employee of the ATO.  These complaints go…

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AGLC
Dunstan v Farr [1999] FCA 1551
Case
[1999] FCA 1551
Decision Date

CaseChat Overview and Summary

The case of Dunstan v Farr involves the applicant, Dunstan, seeking review of decisions made by two respondents, Farr and Monaghan, who are delegates of the Commissioner of Taxation. The primary dispute pertains to the applicant's suspension from duty by Monaghan on 7 July 1999, and an invitation for Dunstan to submit matters for consideration regarding his salary payment due to hardship from the suspension. This case is part of a series of ongoing disputes between Dunstan and his employer, the Australian Taxation Office (ATO), primarily concerning complaints of sexual harassment and subsequent allegations of misconduct against Dunstan.

The legal issues before the court included whether the decision made by Farr on 21 June 1999 was a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court had to determine if the provisional view expressed by Farr in his letter of 21 June 1999 constituted a substantive decision that could be reviewed, or if it was merely a step in the reasoning process leading to a final decision made later. Additionally, the court examined whether the decision by Monaghan on 7 July 1999, which suspended Dunstan and invited him to submit matters for consideration regarding his salary, could be subject to judicial review. The reasoning involved interpreting the scope of reviewable decisions under the ADJR Act, considering both statutory provisions and relevant case law.

The court concluded that the decision by Farr on 21 June 1999 was not a reviewable decision as it was a provisional view rather than a final determination. The final decision was made on 5 August 1999, and the provisional view did not meet the criteria for a reviewable decision under the ADJR Act. Additionally, the decision by Monaghan was also found not to be subject to judicial review as it did not entail a decision required by or authorised by a statute that was final or determinative. The court emphasised that the concept of conduct in the statutory scheme pertains to procedural aspects rather than substantive decisions made during the deliberative process.

The final orders of the court were to dismiss the application and for the applicant to pay fifty per cent of the respondents' costs of the application. This decision underscores the importance of distinguishing between preliminary views and final substantive decisions in determining the scope of judicial review under the ADJR Act.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay fifty per cent of the respondents’ costs of this application.

Background

Background to the litigation

The applicant also seeks review of a decision taken by the second respondent, Michael Monaghan, also a delegate of the Commissioner of Taxation. By that decision, said to have been made on 7 July 1999, Mr Monaghan suspended the applicant from duty, and invited him to submit any matters which he might wish to have taken into account regarding payment of his salary on the ground of hardship resulting from his suspension. Background to the present application The present application is but the latest in a series of disputes between the applicant and his employer, the Australian Taxation Office (“the ATO”). The applicant was born on 27 September 1955. He is a university graduate, and commenced working in the Commonwealth Public Service in 1982. He resides in the Australian Capital Territory. The applicant harbours longstanding grievances relating to his employment, principally against officers of the ATO and the Human Rights and Equal Opportunity Commission. His grievances stem from his belief that those officers have failed throughout to deal properly with complaints of sexual harassment made by the applicant against a female fellow employee of the ATO. These complaints go back many years. The applicant’s dissatisfaction with the manner in which his complaints have been treated has led him previously to institute proceedings in this Court, in 1997, to seek redress. He contends that he has been victimised by having been charged with misconduct under the Public Service Act 1922 (Cth) (“the Act”) as a result of having initiated those earlier proceedings. After the applicant was charged with misconduct, his salary was stopped. This occurred in November 1997. The applicant claimed that both he and his dependants were suffering hardship as a result of the decision to stop his salary, and a delegate of the Commissioner of Taxation, Ms Barbara Benson, determined in 1998 that he had demonstrated hardship pursuant to the relevant provisions of the Act. Ms Benson directed that he receive payment of part salary in an amount of $50,000 per annum commencing in June 1998, and continuing thereafter. That amount was subsequently increased to $60,000 per annum. The applicant continued to be paid his salary at that rate throughout the latter part of 1998, and until 1 April 1999. On 4 December 1998 the applicant was arrested and charged with a number of offences after the reported explosion of what was said to be a letter bomb device at Fyshwick Mail Exchange, and the discovery of a number of other similar letters addressed to persons apparently connected to his past grievances. The addressees of those letters included a number of the applicant’s fellow employees at the ATO. The applicant was in custody until 19 March 1999 when he was granted bail, on strict conditions, by Higgins J in the Supreme Court of the Australian Capital Territory. The Director of Public Prosecutions for the Australian Capital Territory sought review of this decision. On 9 April 1999, the Full Court of the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Crispin JJ) ordered that the applicant’s bail be revoked.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J
Mr Monaghan then observed that the Public Service and Merit Protection Commission (“PSMPC”) Disciplinary Handbook provided that the seriousness of the charges confronting an officer ought not to be taken into account in determining whether hardship payments ought to be made. Finally, Mr Monaghan stated that he had taken into account the impact upon public servants, and the perception of the community, of making payments to the applicant from public funds in circumstances where the applicant had admitted sending through the post to public officers items which, in the circumstances, “could have caused them alarm”. Mr Monaghan concluded, nonetheless, that the dependants of an officer suspended pursuant to s 63B of the Act should not be made to suffer undue hardship prior to any determination of guilt on the part of the suspended officer.Conclusions It seems clear that the applicant faces an immediate obstacle in seeking to have the decisions identified in his application of 27 July 1999 subjected to judicial review. The “decision” taken by the first respondent on 21 June 1999 is not a “decision” of a kind which is amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). For a determination to be a reviewable decision it will generally, though not always, entail a decision required by or authorised by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ. The provisional view expressed by Mr Farr in his letter of 21 June 1999 may be regarded as a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision, that ultimate decision not having been taken until 5 August 1999. That ultimate decision self evidently is not the subject of the application for review which was filed on 27 July 1999. Nor can the “decision” taken on 21 June 1999 be regarded as “conduct engaged in for the purpose of making” a decision to which the ADJR Act applies. In Australian Broadcasting Tribunal v Bond (supra) Mason CJ observed at 341-2:“The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that “decision” connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of “conduct” in the statutory scheme of things becomes reasonably clear. In its setting in s. 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. … It would be strange indeed if “conduct” were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.”

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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