Goreng Goreng v Jennaway

FEDERAL COURT OF AUSTRALIA

Goreng Goreng v Jennaway [2007] FCA 2083

ADMINISTRATIVE LAW – Public Service Regulations 1999 (Cth) reg 3.10 – reg 3.10(4) imposes a duty to review a decision to suspend an APS employee under reg 3.10(1)

ADMINISTRATIVE LAW – Right to silence – No right exists to have an administrative process stayed simply by reason of parallel criminal proceedings

TJANARA GORENG GORENG v STEVE JENNAWAY

ACD 51 OF 2007

FLICK J
12 DECEMBER 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 51 OF 2007

BETWEEN:	TJANARA GORENG GORENG Applicant
AND:	STEVE JENNAWAY Respondent

JUDGE:	FLICK J
DATE OF ORDER:	12 DECEMBER 2007
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant to pay the costs of the Respondent.

3.The Respondent to bring in, within 48 hours, consent orders pursuant to s 50 of the Federal Court of Australia Act1976 (Cth):

a)in relation to pages 73–5 and 79–83 of the Affidavit affirmed by Mr Burke and filed on 12 November 2007; and

b)in respect to pages 11, 12 and 15 of the Affidavit of Mr Burke, affirmed on 4 December 2007.

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	ACD 51 OF 2007

BETWEEN:	TJANARA GORENG GORENG Applicant
AND:	STEVE JENNAWAY Respondent

JUDGE:	FLICK J
DATE:	12 DECEMBER 2007
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. The Applicant is an officer of the Commonwealth employed by the then Department of Families, Community Services and Indigenous Affairs.

2. The Application presently before the Court seeks to restrain a review of a decision to suspend the Applicant.

3. At present the Applicant has been suspended with pay. What any future decision may be remains a matter for the future. The present Application is concerned with the “conduct” of the Respondent being engaged in for the purpose of making a decision.

4. The jurisdiction of the Court being invoked is that conferred by s 6 of the Administrative Decisions (Judicial Review) Act1977 (Cth).

   BACKGROUND FACTS

5. On 23 July 2006 the Applicant was suspended from duty. The letter communicating that decision stated in relevant part:

   I made that decision for the following reasons:

   1.  The recent media statements made by a lawyer, Mr. Newhouse, said to be on your behalf. In particular, the statements in relation to the Government’s approach and actions in relation to the Mutitjulu community;

   2.  You failed to disclose an apparent conflict of interest. Mr. Newhouse states that you are a member of the Mutitjulu community but you did not declare that membership before, or when, dealing with the Community on behalf of the Department, including in relation to sensitive discussions and correspondence; and

   3.  There is information which indicates that you have been involved in the inappropriate release and transmission of confidential information to parties not authorised to receive this information. Those actions also involve the inappropriate use…