Fischer, Thomas v Commonwealth of Australia
[1997] FCA 744
•11 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1977 (Cth) - application for extension of time within which to bring proceedings - application for reasons for decision.
Public Service Act 1922 (Cth), ss 26, 47
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11, 13
Industrial Relations Act 1988 (Cth), ss 170DE, 170EA
Tredex Australia Pty Ltd v Button (1986) 68 ALR 635, applied
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, applied
Kim Hyan Tai v Bolkus (1996) 42 ALD 249, cited
Comcare v A’Hearn (1993) 45 FCR 441, cited
THOMAS FISCHER v COMMONWEALTH OF AUSTRALIA
NG 299 of 1997
BRANSON J
SYDNEY
11 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 299 of 1997 ) GENERAL DIVISION )
BETWEEN: THOMAS FISCHER
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE: BRANSON J PLACE: SYDNEY DATED: 11 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for an extension of time within which to lodge the application herein with the Registrar of the Court be dismissed.
The application for an order directing the respondent, or alternatively Kenneth Neil Anderson, to furnish to the applicant a statement in writing pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 299 of 1997 ) GENERAL DIVISION )
BETWEEN: THOMAS FISCHER
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE: BRANSON J PLACE: SYDNEY DATED: 11 AUGUST 1997
REASONS FOR JUDGMENT
BACKGROUND
By an application lodged with the Registry of the Court on 23 April 1997 the applicant seeks 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 applicant’s employment was terminated on 15 June 1994 purportedly under s 47 of the Public Service Act 1922 (Cth) (“the Public Service Act”). Section 47 has application to officers appointed to the Australian Public Service (“APS”) on probation.
On 6 May 1997 the respondent filed a notice of objection to competency. The objection taken was that the application had not been filed within the time prescribed by s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and the Court had allowed no further time. On 26 May 1997 the applicant 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 applicant 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 (s 13 of the ADJR Act). Such notice of motion also foreshadowed other applications which are not of present relevance.
On 26 June 1997 I heard the applicant’s motions for an extension of time within which to lodge his application and for an order that the respondent provide him with reasons for the decision to terminate his employment.
TIME
The applicant contended that s 11 of the ADJR Act does not prescribe a period for the making of an application for an order of review in relation to the decision to terminate his employment. On that basis he argued that he does not require an extension of time, although he acknowledged that the Court would have a discretion to refuse to entertain the application if it were of the opinion that the application was not made within a reasonable time after the decision was made.
Section 11 of the ADJR Act provides, so far as is here relevant, as follows:
“11. (1) An application to the Court for an order of review:
(a)shall be made in such manner as is prescribed by Rules of Court;
(b)shall set out the grounds of the application; and
(c)shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
(2)Any other application to the Court under this Act shall be made as prescribed by the Rules of Court.
(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b)in a case to which paragraph (a) does not apply:
(i)if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished;
(ii)if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished; or
(iii)in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant.
(4)Where:
(a)no period is prescribed for the making of applications for orders of review in relation to a particular decision; or
(b)no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision;
the Court may:
(c)in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or
(d)in a case to which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to;
if the Court is of the opinion that the application was not made within a reasonable time after the decision was made.”
By letter dated 1 June 1994 the applicant was advised by Kenneth Neil Anderson (“Mr Anderson”), Personnel Manager, Area Sydney Central of the Department of Social Security, that his probationary employment with the Department was to be terminated. He was provided, under cover of the letter, with a formal instrument of termination of his employment signed by Mr Anderson as delegate of the Secretary. The applicant nonetheless contends that his application is not made, to use the words of s 11(1)(c) of the ADJR Act, “in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant”. If the application is made in relation to such a decision, the application is required to be lodged within a period commencing on the day on which the decision was made and ending on the twenty-eighth day after the day on which the document setting out the terms of the decision was furnished to the applicant (s 11(3)(b)(iii) of the ADJR Act).
The applicant contended that he had not been provided with “a document setting out the terms of the decision” within the meaning of s 11(3)(b)(iii) of the ADJR Act. He argued that such a document would have to “show the findings of material questions of fact, refers to the evidence or materials on which those findings were based and give the reason for those decisions”. That is, the applicant argued that a document of the class referred to in s 11(3)(b)(iii) of the ADJR Act had to be a document which provides the same information as the document setting out the terms of the decision referred to in s 11(3)(a) of the ADJR Act. If this argument were to be accepted, s 11(3)(b)(iii) would be an unnecessary provision; it would add nothing to s 11(3)(a). An argument to similar effect was rejected by Neaves J in Tredex Australia Pty Ltd v Button (1986) 68 ALR 635. At 641 his Honour said:
“The statute, in s 11, draws a clear distinction between the making of a decision and the recording of its terms on the one hand and the furnishing of reasons for the decision on the other. The section clearly contemplates that in some cases the document recording the terms of the decision will also record the reasons for it, but nothing could be plainer than that the section also contemplates there will be other cases in which that will not be so.”
I agree.
I find that the period prescribed by s 11 of the ADJR Act within which the application in this case was required to be lodged with the Registrar of the Court ended on the twenty-eighth day after the day on which the instrument of termination of the applicant’s employment was furnished to the applicant. Having regard to the ordinary course of the postal service, this period may be assumed to have ended twenty-eight days after 3 June 1994.
The applicant thus requires an extension of time within which to lodge his application with the Registrar of the Court (s 11(1)(c) of the ADJR Act).
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349, Wilcox J distilled from earlier decisions of the Court certain principles to guide, although not govern, the exercise of the Court’s discretion to grant an extension of time pursuant to s 11 of the ADJR Act. In broad terms, the principles distilled by his Honour involve the recognition 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. Such principles have received wide acceptance, although, as Hill J pointed out in Kim Hyan Tai v Bolkus (1996) 42 ALD 249 at 252, since the Full Court decision in Comcare v A’Hearn (1993) 45 FCR 441, it is to be accepted that the justice of a particular situation might require an extension of time even when the applicant fails to give an explanation for the delay.
Important 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 application, and the opportunities which the applicant has already had to have the decision complained of reviewed.
The application recites, without particulars, all except one of the grounds on which s 5 of the ADJR Act authorises a person aggrieved by a decision to which that Act applies to apply to the Court for an order for review. The matters relied upon by the applicant as he presented his case to me were as follows:
(a)he was not appointed on probation but was appointed as a permanent officer of the APS;
(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 applicant’s employment as he had been “concerned during the process of the dismissal”; and
(d)Mr Anderson was not a person authorised by the Public Service Act to make the decision to terminate the applicant’s employment.
On 8 June 1994 the applicant filed an application in the Industrial Relations Court of Australia under s 170EA of the Industrial Relations Act 1988 (Cth) (“the Industrial Relations Act”) which authorises an employee to lodge with the Commissioner for Conciliation an application for relief in respect of the termination of his or her employment. He placed reliance on s 170DE of the Industrial Relations Act, which, at the relevant time, provided as follows:
“170DE(1) An employer must not terminate an employee’s employment unless there is 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.
(2)A reason is not valid if, having regard to all of the circumstances of the case, including the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.”
Sections 170DE and 170EA of the Industrial Relations Act are found in Div 3 of Pt VIA of that Act.
The matter was not resolved by conciliation, and the Commissioner referred the matter to the Industrial Relations Court of Australia. Following a hearing before Judicial Registrar Tomlinson, the relief sought by the applicant was refused. The Judicial Registrar concluded her reasons for judgment as follows:
“... 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 applicant was terminated.”
The applicant sought a review of the decision of the Judicial Registrar.
Wilcox CJ upheld the decision of the Judicial Registrar. In doing so he found that:
“The decision of Mr Anderson to terminate Mr Fischer’s employment was made for valid reasons, connected with his capacity and conduct.”
He further expressed the view:
“I do not think the termination was harsh, unjust or unreasonable; on the contrary. If the 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.”
As to submissions put to him that the applicant had been denied procedural fairness, Wilcox CJ concluded:
“There is nothing in the complaint of denial of procedural fairness.”
The applicant appealed to the Full Court of the Industrial Relations Court of Australia from the decision of Wilcox CJ. The Full Court rejected the submission that the appellant’s employment was terminated harshly, unjustly or unreasonably. The Full Court also rejected a submission that the applicant had been denied procedural fairness in respect of the termination of his employment.
The applicant has been refused leave to appeal to the High Court against the decision of the Full Court of the Industrial Relations Court of Australia.
It is against this background that I turn to consider the matters which the applicant seeks to agitate in this Court should he obtain an extension of time within which to seek an order of review.
The first such ground is that the applicant was not appointed to the APS on probation but as a permanent officer. Wilcox CJ gave careful consideration to the issue of whether the applicant had been appointed to the APS on probation. He concluded, with respect, plainly correctly, that he had been. As his Honour pointed out, s 47 of the Public Service Act, in the circumstances of the applicant’s appointment, mandated a probationary appointment. The Full Court of the Industrial Relations Court of Australia agreed with Wilcox CJ on this issue. Leave to appeal to the High Court has been refused. In my view it would be inappropriate to grant the applicant an extension of time to allow him to reargue this issue before this Court. Not only is the issue without merit, it would be inappropriate to allow it to be reargued when it has been authoritatively ruled on by the Industrial Relations Court of Australia in proceedings between essentially the same parties.
I take the same view of the applicant’s complaints that he was denied natural justice in respect of the termination of his appointment and, in particular, that Mr Anderson should have disqualified himself from making the termination decision. The issue of natural justice, or procedural fairness, was central to the applicant’s case before the Industrial Relations Court of Australia. At every level that Court concluded that he had been accorded procedural fairness in respect of the termination of his employment. The High Court has refused leave to appeal from the decision of the Full Court of the Industrial Relations Court of Australia. It would not be appropriate to allow the applicant an extension of time to reargue these issues before this Court.
The applicant’s contention that Mr Anderson was not a person authorised by the Public Service Act to make the decision to terminate the applicant’s appointment was not argued before the Industrial Relations Court of Australia. Section 47(4) of the Public Service Act authorises the Secretary of the Department in which a probationary officer is employed to terminate that officer’s appointment before his or her appointment is confirmed. Section 26 of the Public Service Act authorises a Secretary, either generally or as otherwise provided by an instrument of delegation, by writing signed by him or her, to delegate any of his or her powers, other than the power of delegation, 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 of the Public Service Act. The validity of the delegation itself was not then challenged by the applicant, although its relevance in the circumstances of his case apparently was. An instrument of delegation was received in evidence by the Judicial Registrar. It is dated 6 December 1993 and records, amongst other delegations, 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. The evidence discloses that Mr Anderson held the office of Personnel Manager, Area Sydney Central.
I am not satisfied that there is merit in the ground of review that Mr Anderson was not a person authorised by the Public Service Act to make the decision to terminate the applicant’s employment. Even if I were so satisfied, I 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. It is over three years since the instrument of termination of the applicant’s employment was signed. The instrument of delegation relied on by Mr Anderson in signing that instrument may be assumed to have been relied on on numerous other occasions. The interests of many persons may thereby have been affected. Moreover, so far as the applicant’s complaints against the respondent are concerned, this ground is a technical one and not one which goes to the substantive merits of this claim that his employment was wrongly terminated.
Having regard to the totality of the circumstances of this case, I do not consider that the justice of the case indicates that the applicant should be granted an extension of time within which to lodge his application with the Registrar of the Court. The application for an extension of time will be refused.
REASONS FOR DECISION
Section 13(1) of the ADJR Act provides as follows
“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given in writing to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”
The applicant has requested a statement in writing pursuant to the above provision, but the decision-maker has declined to provide it. My decision that the applicant should not be granted an extension of time within which to lodge his application with the Registrar of the Court has the consequence that he is not a “person who is entitled to make an application to the Court” within the meaning of the above provision.
The applicant is not entitled to an order requiring the decision-maker to furnish him with a statement in writing pursuant to s 13(1) of the ADJR Act. The application for such an order is refused.
I certify that this and the preceding seven
(7) pages are a true copy of the Reasons for
Judgment of the Honourable Justice Branson.
Associate:
Date:
The applicant appeared in person.
Counsel for the respondent: Mr G.T. Johnson
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 26 June 1997
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