Dunstan v Orr

Case [2008] FCA 31

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2008] FCA 31

ADMINISTRATIVE LAW – Application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) – where applicant former employee of Commonwealth Public Service – where first respondent delegate of Secretary under s 63B Public Service Act 1922 (Cth) (“PSA Act”) – where first respondent suspended applicant from duty pursuant to s 63B PSA Act – where third respondent authorised officer under s 61(2) PSA Act – where first respondent suspended applicant after being informed by third respondent that third respondent of opinion that applicant may have failed to fulfil duty as officer – where second respondent authorised officer under s 61(2) PSA Act – where second respondent charged applicant with failing to fulfil duty as officer pursuant to s 61(2) PSA Act – whether third respondent made a decision to which ADJR Act applies – whether first respondent made a decision to which ADJR Act applies – whether second respondent made a decision to which ADJR Act applies

Held:   forming and conveying of opinion to first respondent not final or operative and determinative – third respondent did not make decision to which ADJR Act applies – suspension of applicant had immediate impact on applicant – legislation imposes limited natural justice requirements upon decision to suspend – suspension can operate to terminate officer’s salary – first respondent made decision to which ADJR Act applies – unnecessary to decide whether second respondent made decision to which ADJR Act applies

ADMINISTRATIVE LAW – Application for judicial review under ADJR Act – where applicant suspended after meeting where matters of concern raised – where applicant not given prior notice of matters to be raised – where notice not given because of security concerns – whether breach of rules of natural justice – whether failure to comply with s 63B(1C) PSA Act – whether improper exercise of power – whether error shown in decision of first respondent

Held: to extent that notice was not given of matters of concern failure to give notice authorised by s 63B(1C)(b) PSA Act – no breach of rules of procedural fairness – no failure to comply with s 63B(1C) PSA Act – factual basis of allegation of improper exercise of power not made out on evidence – no error shown in decision of first respondent

ADMINISTRATIVE LAW – Application for judicial review under ADJR Act – where second respondent charged applicant pursuant to s 61(2) PSA Act – whether breach of rules of natural justice – whether failure to comply with statutory requirement that decision be made “as soon as practicable” – whether failure to take into account relevant considerations – whether irrelevant considerations taken into account – whether error shown in decision of second respondent

Held:   PSA Act addresses natural justice requirements at each stage of disciplinary process – second respondent not obliged to afford natural justice beyond that prescribed by PSA Act – no breach of rules of natural justice…

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AGLC
Dunstan v Orr [2008] FCA 31
Case
[2008] FCA 31
Decision Date

CaseChat Overview and Summary

The matter of Dunstan v Orr was heard before a court, where the applicant sought to introduce new claims at a late stage in the trial. The respondents opposed the amendments, arguing that it would necessitate recalling witnesses and potentially calling new ones, leading to an adjournment and a new set of procedural orders. The applicant claimed the amendments arose from late discovery of material by the respondents, though this was not substantiated. Consequently, the court declined to allow the amendments and denied leave to amend. The court also did not need to address other grounds put forward by the respondents, such as the timeliness of the new claims and their legal viability.

The legal issues before the court were primarily centred on whether the applicant's proposed amendments to the claims should be allowed at such a late stage of the trial. Secondary issues included whether the new claims were statute-barred and whether they had any legal basis. The court considered the applicant's evidence, which was largely irrelevant and speculative, and found it unconvincing. The court also accepted the evidence of the respondents, who opposed the amendments on the grounds of procedural fairness, potential need for witness recall, and the timing of the application.

The court reasoned that the applicant had not demonstrated that the application to amend was necessary due to late discovery of material, nor that it could not have been made earlier. The court held that allowing the amendments would have caused undue delay and inconvenience. The court also noted that the applicant's evidence was fraught with irrelevancies and speculative assertions. Given these considerations, the court concluded that it was not appropriate to permit the amendments. The court found no breach of natural justice or unreasonable delay in the decision-making process, and thus upheld the decisions in question.

The court dismissed the application in its entirety. The orders made were straightforward: the application was to be dismissed, and no further amendments were to be allowed. This decision underscores the importance of timely and relevant amendments in litigation and the court's reluctance to allow changes that could unduly prolong proceedings.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

The applicant sought to put forward new and quite different claims at a very late stage of the trial. It was clear, at least from the respondents’ point of view, that it was likely that if the amendments were allowed, witnesses would have to be recalled and new witnesses may need to have been called. If the amendments were allowed, the trial would have had to be adjourned and it was likely that another pre-trial set of procedural orders would need to have been made. The applicant asserted, but did not establish to my satisfaction, that his application to amend had come forward only because of late discovery or disclosure of material by the respondents. He certainly did not establish that the application to amend could not have been made well before the commencement of the trial. In the circumstances, I did not think that it was appropriate to allow the amendments and I refused leave to amend. In those circumstances I did not need to consider some of the other grounds advanced (but not developed) by the respondents in opposing the application for leave to amend. Those grounds included an assertion that the proposed new causes of action were out of time and statute-barred and that some of the proposed new claims were unarguable as a matter of law.The facts The applicant gave evidence. The bulk of his evidence-in-chief was given by way of affidavit and he was cross-examined by counsel for the respondents. He was in 1997 and remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others. He tended to focus on matters which were not directly relevant to the issues in the proceeding. He is convinced that there was a conspiracy against him led by the third respondent. A good deal of his evidence was irrelevant to the issues raised in this proceeding and other “evidence” in his affidavits was in reality submissions about why I should find that the third respondent was motivated by improper considerations. I approach the applicant’s evidence with considerable caution and I accept the evidence of the respondents where there is a conflict. For reasons I will give, I reject the applicant’s evidence that he was given an access privilege to the ATO computer system in May 1997. Further, some of the evidence he gave directed to establishing possible innocent explanations for certain system violations was confusing, but even if accepted, did not rise anywhere near a level sufficient to establish an error of the type identified in s 5 of the ADJR Act. In reaching these conclusions I have had regard to all the evidence in the case including the documentary evidence and I have borne in mind that before me the applicant was not legally represented. The applicant called Ms Erin Holland as a witness. She is a Commonwealth public servant who is employed in the ATO. She appeared under subpoena. She was an honest and straightforward witness and I accept her evidence. However, for reasons I will give, her evidence does not assist me in resolving the issues in the proceeding

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J
All grounds of challenge to the second decision fail.The third decision The first ground of challenge to the third decision is that a breach of the rules of natural justice occurred in connection with the making of the decision. For the reasons I have already given, ([97]-[99] above) the rules of natural justice did not apply in relation to the third decision. If the rules of natural justice did apply in relation to the third decision, nevertheless, there was no breach of those rules. The applicant first alleges that there was unreasonable delay in making the decision. It is convenient to consider this particular with the second ground of challenge which is that the procedures that were required by law to be observed in connection with the making of the decision were not observed in that the decision was not made “as soon as practicable” as required by s 61(2) of PSA. As I have already said (at [55]), at about the time the second respondent made his decision to charge the applicant and in fact charged him, he prepared a report which set out the course of events and details of his decision. It is in similar terms to the statement of his reasons set out in the letter from the AGS dated 28 July 1998 (see [56] above). There was a draft of the report as early as 11 July 1997, and other than the date and the second respondent’s name, the draft report and the report are in the same terms. The applicant submitted that in those circumstances the second respondent had been guilty of unreasonable delay and had failed to decide to charge, or to charge, or both, “as soon as practicable” after forming the opinion required by s 61(2). The second respondent gave evidence, which I accept, that he was very busy in July and August 1997 and that he was required to travel overseas in order to carry out a research project. He was overseas from late August to late September 1997. On the facts, I do not think there has been unreasonable delay in making a decision. Nor is the related submission that the decision was not made as soon as practicable as required by s 61(2) of the PSA made out. It has not been established on the evidence that the second respondent formed his opinion at one point in time and decided to charge and did charge the applicant at a different and later point in time. Even if that fact had been established, I am not satisfied that the decision to charge and in fact the charging of the applicant were not done “as soon as practicable” after the relevant opinion was formed. I might add that even if I had found that the second respondent had not made the decision “as soon as practicable” after he formed the opinion required by s 61(2), it would not necessarily follow, in circumstances in which the second respondent did go on to make a decision, that that constituted a reviewable ground within s 5(1) of the ADJR Act. I doubt whether it could be said that the ground that the procedures required by law to be observed in connection with the making of the decision were not observed (that is, s 5(1)(b)) was engaged, and, even if it were, that it would be an appropriate case for an order under s 16(1)(a) quashing the decision to charge. It seems to me that in a case where a decision is not made “as soon as practicable” within s 61(2) there is a good deal to be said for the proposition that the only remedy for an aggrieved party is an order for review in respect of a failure to make a decision under s 7 of the ADJR Act.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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