Fischer, Thomas v Commonwealth of Australia
[1997] FCA 1551
•26 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG640 of 1997
BETWEEN:
THOMAS FISCHER
APPELLANTAND:
COMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGES:
LOCKHART, WHITLAM AND SACKVILLE JJ
DATE:
26 NOVEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
This is an appeal from the judgment of a Judge of the Court, Branson J, given on 11 August 1997, whereby her Honour ordered that: (1) an application made by the appellant, Mr Fischer, for an extension of time within which to lodge an application for review under the Administrative Decisions Judicial Review Act 1977 (the “ADJR Act”) with the Registrar of the Court be dismissed; (2) an application for an order directing the respondent, the Commonwealth of Australia, or alternatively Kenneth Neil Anderson, to furnish to the appellant a statement in writing pursuant to s 13(1) of the ADJR Act be dismissed; (3) the appellant pay the respondent's costs of the proceeding at first instance other than certain costs specifically excluded from her Honour's order.
The application before her Honour for judicial review was lodged on 23 April 1997. The appellant sought judicial review of a decision that his employment by the respondent as an Administrative Service Officer Class 1 (“ASO1”) within the Department of Social Security be terminated. The appellant's engagement as a probationary officer commenced on 8 February 1993 and his employment was terminated on 15 June 1994, purportedly under s 47 of the Public Service Act 1922 (Cth) (the “Public Service Act”). The instrument of termination was signed by Mr Anderson who, at the time, was Personnel Manager for the Sydney Central Area of the Department of Social Security and was sent to the appellant under cover of a letter dated 1 June 1994. Her Honour noted in her reasons for judgment that s 47 applied to officers appointed to the Australian Public Service on probation.
On 6 May 1997, the respondent filed a notice of objection to competency, namely, that the application had not been filed within the time prescribed by s 11 of the ADJR Act and the Court had allowed no further time. On 26 May 1997, the appellant filed a notice of motion giving notice of his intention to move the Court for an extension of time within which to file his application.
Meanwhile, on 7 May 1997, the appellant had filed a notice of motion giving notice of his intention to move the Court for an order, in effect, that the respondent furnish to him a statement in writing setting out the findings on material questions of fact relevant to the termination of his employment and giving the reasons for the decision to terminate his employment under s 13 of the ADJR Act. On 26 June 1997, her Honour heard both of the appellant’s motions.
Her Honour found that the period prescribed by s 11 of the ADJR Act within which the application for review was required to be lodged with the Court could be assumed to have ended twenty-eight days after 3 June 1994 (making allowance for service in the post of the letter of 1 June 1994). Consequently the appellant required an extension of time in which to lodge his application for review and referred to s 11(1)(c) of the ADJR Act.
Her Honour referred to the relevant principles and said that:
“it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. Ordinarily an applicant will be required to show an acceptable explanation for the delay and that it is fair and equitable in the circumstances for an extension of time to be granted.”
She specifically drew attention to the fact that:
“[i]mportant factors to be considered in reaching a conclusion as to whether the justice of the case requires that an extension of time be granted are the merits of the substantial [sic] application, and the opportunities which the applicant has already had to have the decision complained of reviewed.”
She also noted that the application before the Court recited without particulars all except one of the grounds on which s 5 of the ADJR Act authorizes a person aggrieved by a decision to apply to the Court for an order of review. Her Honour summarised the matters relied upon by the appellant as follows:
(a)he was not appointed on probation but was appointed as a permanent officer of the [Australian Public Service];
(b)he was denied natural justice in respect of the termination of his employment;
(c)Mr Anderson should have disqualified himself from making the decision to terminate the [appellant's] employment as he had been ‘concerned during the process of the dismissal’; and
(d)Mr Anderson was not a person authorized by the Public Service Act to make the decision to terminate the applicant's employment.”
Her Honour recited the long curial history of this matter in the Industrial Relations Court of Australia and, more recently, in this Court.
On 8 June 1994, the appellant filed an application in the Industrial Relations Court under s 170EA of the Industrial Relations Act 1988 (Cth) (the “Industrial Relations Act”), which authorizes an employee to lodge with the Commissioner an application for relief in respect of the termination of his or her employment. The appellant relied on s 170DE of the Industrial Relations Act, which, at the relevant time, provided, in essence, that an employer could not terminate an employee's employment unless there was a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service. It further provided that a reason was not valid if, having regard to all of the circumstances of the case, the termination was harsh, unjust, or unreasonable.
The matter was not resolved by conciliation and the Commissioner referred the matter to the Industrial Relations Court. Following a hearing before the Judicial Registrar, the relief sought by the applicant was refused. The Judicial Registrar’s reasons for judgment included this statement:
“...I am of the view that the termination of the employment of the applicant did not contravene the [Industrial Relations] Act and was not unlawful having regard to the spirit and intendment of the Public Service legislation. I am satisfied that the correct procedures were observed when the employment of the [appellant] was terminated.”
The appellant then sought a review of the decision of the Judicial Registrar. Wilcox CJ upheld that decision and in doing so found that:
“[t]he decision of Mr Anderson to terminate Mr Fischer's employment was made for valid reasons, connected with his capacity and conduct.”
His Honour further expressed this view:
“I do not think the termination was harsh, unjust or unreasonable; on the contrary. If people within the Department who had to determine whether Mr Fischer's employment should be continued or terminated are to be criticised at all, the criticism should be that they delayed termination too long, thereby putting unnecessary strain on his immediate supervisors.”
Wilcox CJ also found that there was nothing of substance in the complaint of denial of procedural fairness.
The appellant appealed to the Full Court of the Industrial Relations Court from Wilcox CJ’s decision. That Full Court rejected the submission that the appellant's employment was terminated harshly, unjustly or unreasonably. It also rejected a submission that he had been denied procedural fairness in respect of the termination of his employment.
The appellant then sought special leave to appeal to the High Court of Australia from that decision of the Full Court of the Industrial Relations Court. The application for special leave was refused.
We turn now to the matters on which the appellant seeks to rely, should he obtain an extension of time within which to lodge an application for review. Her Honour, in considering these matters, was, of course, engaging in the exercise to which she had earlier referred in her reasons, namely, an assessment of the merits of the substantive application for review and of the applications already made by the appellant to have the decision complained of reviewed or overturned.
The first ground relied on by the appellant is that he was not appointed to the Australian Public Service on probation, but as a permanent officer. As her Honour noted, Wilcox CJ carefully considered that issue, and concluded that he had been appointed on probation. The Full Court of the Industrial Relations Court agreed with Wilcox CJ on that issue. Her Honour concluded it would be inappropriate to grant the extension of time to allow the appellant to reargue that issue. The point was without merit. Moreover, it was inappropriate to allow the issue to be agitated, when it had already been authoritatively ruled on by the Industrial Relations Court proceedings essentially between the same parties.
Her Honour took the same view of the appellant's complaints that he had been denied natural justice concerning the termination of his appointment and, in particular, that Mr Anderson should have disqualified himself from making the termination decision.
Her Honour then dealt with the contention that Mr Anderson was not a person authorized by the Public Service Act to make the decision to terminate the appellant's appointment. Her Honour said she was not satisfied that there was any merit in this ground. She went on to say that, even if she were so satisfied, she would not regard it as fair and equitable in the circumstances to grant an extension of time to allow the question of Mr Anderson's authority to be now litigated. She noted that over three years had elapsed since the instrument of termination of the appellant's employment had been signed and that the ground relied on by the appellant was a technical one, not going to the substantive merits of his claim that his employment was wrongly terminated.
Her Honour concluded that, having regard to the totality of the circumstances of the case, the justice of the case did not suggest that the appellant should be granted an extension of time within which to lodge his application with the Registrar of this Court for review. Accordingly, she refused the application for extension of time.
Branson J then dealt with the final element in the case before her, which was the appellant's contention that he was entitled to be provided with a statement of reasons pursuant to s 13(1) of the ADJR Act. Her Honour noted that the appellant had requested a statement in writing pursuant to that subsection but that the decision maker had declined to provide it. She said that her decision that the appellant should not be granted an extension of time within which to lodge his application with the Registrar of the Court had the consequence that he was not a “person who was entitled to make an application to the Court” within the meaning of s 13(1). Accordingly, her Honour held that the appellant was not entitled to an order requiring the decision maker to furnish him with a statement in writing pursuant to s 13(1). The application by the appellant for such an order was therefore refused.
The arguments that have been advanced in this appeal by the appellant, who appeared in person, are referred to in his notice of appeal which the Court has also treated, at the appellant's request and without objection by the respondent, as constituting a summary in writing of his reasons for his argument.
Essentially they reiterate arguments that were put before Branson J and which were rejected by her. We have carefully considered the arguments and the reasons advanced by her Honour in relation to them and can discern no error in those reasons, generally speaking, and are content to adopt them. However, we will elaborate on the following issues:
the contention that Mr Anderson was not a person authorized by the Public Service Act to make the decision to terminate the appellant's employment;
the argument concerning the order for costs made by her Honour; and
the arguments advanced before us with respect to the order made by her Honour refusing to make an order requiring the decision maker to furnish the appellant with a statement in writing under s 13(1) of the ADJR Act.
Branson J addressed the question of whether Mr Anderson, who signed the relevant notice of termination of the employment of the appellant, was duly authorized to do so. Her Honour noted that s 47(4) of the Public Service Act authorized the Secretary of the Department in which a probationary officer was employed to terminate that officer's appointment before his or her appointment was confirmed. She said that s 26 of the Public Service Act authorized a Secretary, by writing signed by him or her, to delegate any of his or her powers other than that of delegation itself, under the Public Service Act. Mr Anderson gave evidence before the Judicial Registrar that he held a delegation to terminate probationary appointments pursuant to s 47. The validity of that delegation was not then challenged by the appellant.
The instrument of delegation is dated 6 December 1993 and records, inter alia, a delegation by the Secretary of the Department of Social Security to Personnel Managers of the authority to terminate probationary appointments, pursuant to s 47(4) of the Public Service Act. Her Honour noted that the evidence disclosed that Mr Anderson held the office of Personnel Manager, Area Sydney Central. She therefore found that there was no substance in the argument that Mr Anderson lacked the requisite delegated authority to terminate the appellant's appointment.
The appellant has put an argument, foreshadowed in his notice of appeal, which was not expressly dealt with in her Honour’s reasons for judgment, doubtless because it was somewhat obscurely cast. The appellant’s argument, which we shall outline shortly, rests on the proposition that, in the case of a person appointed on probation to the Australian Public Service, the section of the Public Service Act that governs that matter is s 47. It is not necessary to set out the whole of the section, but certain of the provisions should be referred to.
Section 47(1) provides that, subject to sub-section (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. Sub-section (2) provides that the Commissioner may appoint a person to the Service without probation but, amongst other things, shall not so appoint a person unless the Commissioner is satisfied, after the person has undergone a medical examination approved by the Commissioner, as to the officer's health and physical fitness. The importance of satisfactory medical examinations in this area of the Public Service is a matter to which we will return later.
Sub-section (3) empowers the Commissioner, at any time within the period of six months after an officer is appointed to the service on probation, to confirm that appointment. Sub-section (4) empowers the Secretary, at any time after an officer (other than an SES officer) is appointed to the Service on probation and before the appointment is confirmed, to terminate the appointment. Sub-section (4A) empowers the Commissioner, at any time after an SES officer is appointed to the Service on probation and before the appointment is confirmed, to terminate the appointment. Sub-section (5) empowers the Secretary, at any time after the end of the period of six months after an officer is appointed to the Service on probation, to confirm the appointment.
Sub-section (6) is important. It provides as follows:
“Where, at the end of the period of twelve months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated:
(a)in the case of an officer other than an SES officer - the relevant Secretary must, as soon as practicable, confirm or terminate the appointment; and
(b)in the case of an SES officer whose appointment the relevant Secretary intends to confirm - the relevant Secretary must, as soon as practicable, confirm the appointment; and
(c)in any other case - the relevant Secretary must, as soon as practicable, give written notice to the Commissioner that he or she does not intend to confirm the appointment.”
Sub-section (6A) provides that, as soon as practicable after the Commissioner receives a notice mentioned in s 47(6)(c), the Commissioner must confirm or terminate the appointment. Sub-section (7) provides that, where at the end of the period of two years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall, unless the officer is not an Australian citizen, be deemed to have been confirmed. Sub-section (9) provides that the Commissioner shall not, under subss (3) or (6A), and the Secretary shall not, under subss (5) or (6), confirm the appointment to the Service of an officer unless the Commissioner or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Commissioner, as to the officer's health and physical fitness.
The argument advanced by the appellant is the following. If, at the end of the period of twelve months after he was appointed on probation, that appointment had been neither confirmed nor terminated, the Secretary was obliged, as soon as practicable, to confirm or terminate the appointment. The appellant pointed out that it was not until some sixteen months had passed from the date of his appointment as a probationary officer that his appointment was terminated. He submitted that that period of time, especially the four months that elapsed after the expiration of the statutory period of twelve months, was such that the Secretary could not be said to have acted “as soon as practicable” with s 47(6)(a). In short that there had been unexplained and undue delay.
The appellant argued that, by reason of the delay, there had been no valid exercise of the power of termination conferred by s 47(6)(a), with the consequence that at the end of the period of two years after he had been appointed to the service on probation, s 47(7) operated to deem his appointment to have been confirmed. Alternatively, he argued that, irrespective of s 47(7), a consequence of the failure to terminate his appointment under s 47(6)(a), was that that appointment had never been validly terminated.
The appellant put a further argument based on the construction of s 47(6)(c), namely, that because the termination had not been carried out as soon as practicable within the meaning of s 47(6)(a) he fell within s 47(6)(c) which applies "in any other case".
The appellant’s arguments raise a number of issues. These include whether a failure to comply with s 47(6)(a) produces the consequence that a purported termination of employment is invalid; whether such a failure has the effect of confirming a probationary appointment; and, whether s 47(6) is intended to be a directory or mandatory provision. In this connection, the respondent submitted that the primary power to terminate an appointment is conferred by s 47(4) of the Public Service Act and that non-compliance with s 47(6) does not affect the primary power.
If the appellant’s arguments present a real question for determination, this would be a material matter in relation to the trial Judge’s refusal to exercise her discretion to extend time in favour of the appellant. Similarly, if the appellant’s arguments have substance, there would be a strong case for granting leave to extend time.
In our view, however, the appellant’s submissions encounter a factual difficulty that makes it unnecessary to consider the legal issues we have identified. The foundation of the appellant’s argument is that the termination of his appointment was not made “as soon as practicable” within the meaning of s 47(6)(a) of the Public Service Act.
The appellant informed us that he had not turned his mind in detail to the evidence bearing on whether or not the termination of his employment was made as soon as practicable after the end of the 12 months period of probationary appointment. However, in response to questions from the Bench, he identified the matters upon which he relied to support the conclusion that the termination was not effected as soon as practicable. We have examined this material. We have also examined material to which counsel for the respondent referred and which we have found, both in the appeal papers and in documentary evidence not included in the appeal papers.
As we have said, the appellant's engagement as a probationary officer commenced on 8 February 1993. The letter from Mr Anderson notifying him of the termination of his appointment was dated 1 June 1994. A period of just under sixteen months therefore elapsed between the appellant’s engagement and notification of the decision to terminate his employment.
It is apparent from the evidence that, well before the termination of the appellant's employment, the Department was primarily concerned about two matters. The first was whether the appellant was medically fit. The second was whether or not his work performance and conduct were satisfactory. These, we might add, were issues that were before the Industrial Relations Court, both at first instance and on appeal.
So far as the question of the medical fitness of the appellant was concerned, steps had been taken within the Department to have the appellant medically examined and assessed and considerable attention was devoted to this question, well before the date of termination of his appointment. Indeed, as appears from the letter of 1 June 1994, the appellant’s medical fitness was still an issue at the time of the termination of his appointment. We referred earlier to s 47(9), from which it is clear that the Secretary is unable to confirm the appointment to the Service of a probationary officer, unless the Secretary is satisfied as to the officer's health and physical fitness.
Questions had also been raised about the performance and conduct of the appellant, for example, his self-motivation, enthusiasm and attention to detail. It is clear that these questions concerning the appellant's work performance and conduct were the subject of much consideration within the Department over a substantial period before the date on which his employment was terminated. It was those concerns which provided the basis for the termination of the appellant’s employment.
The documentary evidence seems to us to provide little or no support for the contention that the appellant’s appointment was not terminated “as soon as practicable” within the meaning of s 47(6)(a). In assessing this question, it is necessary to take into account the matters affecting the appellant’s health and performance that the Department was obliged to investigate. In our opinion, the prospects of success of any contention that the termination of the appellant’s appointment was not made as soon as practicable are very low. It follows that the argument put by the appellant does not assist him in relation to the merits of his application for an extension of time in which to bring an application under s 11 of the ADJR Act.
We have not overlooked the appellant’s contention that the relevant Department officers concerned with the question of the termination of his appointment all suffered from a misconception as to the effect of the Public Service Act, in particular s 47, concerning the length of probationary appointments. He said that there was material which supported the conclusion the officers were of the view that the maximum period of probationary appointment was not twelve months, but two years, and that that view must have coloured their approach to the decision-making process. We do not think the documentary evidence supports any such misconception. In any event, even if this misconception were established, it would be of little assistance on the factual question requiring resolution.
The appellant relied upon another submission relevant to the exercise of the discretion of the primary Judge in considering his application for extension of time. He claimed that he was not aware, until the High Court was considering his application for special leave from the judgment of the Full Court of the Industrial Relations Court, of any rights he had or might have to seek judicial review or relief by way of prerogative writ under s 39B of the Judiciary Act 1903 (Cth).
Having regard to the conclusions we have already expressed, it is unnecessary to consider this submission in detail. However, we are not persuaded that there was, as the appellant asserted, any duty on the part of the Commonwealth or any officer of the Commonwealth to inform the appellant of any rights available to him. In any event, the fact is that the appellant was represented by counsel and solicitors before Wilcox CJ and the Full Bench of the Industrial Relations Court. In the absence of evidence to the contrary, it must be assumed that the legal advisers to parties inform them of the options available to them to challenge decisions adversely affecting them, at least where the advisers are engaged for the purpose of challenging such decisions.
Branson J, in holding that the appellant was not entitled to an order requiring the decision maker to furnish him with a statement in writing under s 13(1) of the ADJR Act, appears to have found that the appellant did not answer the description of a person who is entitled to make an application to the Court under s 5, within the meaning of s 13(1) of the ADJR Act. She seems to have taken this view because he was out of time in making his application for review under s 11 of the ADJR Act, and therefore needed an extension of that time to make the application which, of course, she had refused.
We prefer to leave open the question of the correctness of that finding. It is plain that the reason the decision maker declined to provide written reasons under s 13(1) of the ADJR Act was that the application for the reasons was made some three years or so after the appellant’s employment had been terminated. Under s 13(5):
“A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if:
(a)in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request - the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or
(b)in any other case - the request was not made within a reasonable time after the decision was made;
and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished.”
Plainly, the decision to refuse to provide reasons in this case is not susceptible to successful challenge. It would therefore be inappropriate to make an order of the kind sought by the appellant.
The order for costs made by her Honour is also challenged, on three grounds: First, it is said that the construction of s 47, in particular subsection (6) is a matter of general public importance and that should weigh in favour of the appellant in considering the Court's exercise of discretion as to costs. Her Honour considered this point in her second judgment, delivered on 26 September 1997, in which she ordered the appellant to pay the respondent's costs. We discern no error in the approach taken by her Honour.
Secondly, the appellant says that he had a prima facie case against the respondent. We have already rejected this contention.
Thirdly, the appellant points to the financial position of the respondent. The financial position of the respondent was a matter essentially for the primary Judge to consider, and it is a matter which appears to have been taken into account by her. In any event we are not persuaded that her Honour's exercise of discretion on the question of costs miscarried.
Accordingly, the appeal is dismissed.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Court
Associate:
Dated: 26 November 1997
Appellant appeared in person. Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 November 1997 Date of Judgment: 26 November 1997
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