Harris, R.J. v Moore, B

[1993] FCA 818

Fib 93

JUDGMENT No. ........ ........ .. 1 ........ ....

CATCHWORDS

Practice and procedure - appeal - leave - whether judgment final or interlocutory - refusal of extension of time to make application for judicial review - whether time extended for making application for leave to appeal - whether judgment

attended with sufficient doubt to warrant it being

reconsidered - whether substantial injustice to applicant if order allowed to stand - delay caused by illness and error of

applicant's solicitor.

Federal Court of Australia Act 1976 S. 24.

Administrative Decisions (Judicial Review) Act 1977

Federal Court Rules 0. 52 r. 10; 0. 52 r. 15.

Barrett v. Minister for Immigration, Local Government & Ethnic

Affairs (1989) 18 A.L.D. 129.
Hall v. Nominal Defendant (1966) 117 C.L.R. 423.
Carr v. Finance Corporation of Australia Ltd. (1981) 147
C.L.R. 246.

Court. Not yet reported.

Niemann v. Electronic Industries Ltd. [l9781 V.R. 431.

Decor Corporation Pty. Ltd. v. Dart Industries Inc. (1991) 33

F.C.R. 397.

Sharp v. Deputy Commissioner of Taxation (1988) 88 A.T.C.

4184.

Gordon M. Jenkins & Associates Pty. Ltd. v. Coleman (1989) 87

A.L.R. 477
Comcare V. A'Hearn (12th October 1993) Full Court, Federal

ROSSI JUNE HARRIS V. BEVERLEY MOORE, DELEGATE OF THE SECRETARY OF THE DEPARTMENT OF HEALTH HOUSING AND COMMUNITY SERVICES AND

DEPARTMENT OF HEALTH HOUSING AND COMMUNITY SERVICES

NO. TG 10 OF 1993

JUDGE :	GRAY J.
PLACE :	HOBART
DATE :	29TH OCTOBER 1993

IN THE FEDERAL COURT OF AUSTRALIA	) )
TASMANIA DISTRICT REGISTRY	) No. TG 10 of 1993
)
GENERAL DIVISION	1

ROSSI JUNE HARRIS

Applicant

- and -

BEVERLEY MOORE, DELEGATE OF THE SECRETARY OF THE

DEPARTMENT OF HEALTH HOUSING AND COMMUNITY SERVICES AND DEPARTMENT OF HEALTH HOUSING

AND COMMUNITY SERVICES

Respondents

JUDGE :	Gray J
PLACE	: Hobart
DATE :	29th October 1993

EX TEMPORE REASONS FOR JUDGMENT

The applicant in this proceeding desires to appeal from a judgment and order of a single judge of this Court, pronounced and made on 2nd June 1993. On that day, the learned judge dismissed a motion, notice of which was filed on 15th March 1993, and an application purportedly filed under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), both with costs. The gist of the application before his Honour was an application to extend the

time fixed by the Judicial Revlew Act for bringing a proceeding under that Act in respect of a decision dismissing the applicant from her employment with the Department of Health, Housing and Community Services.

On 23rd August 1993, the applicant filed in this matter what was described as an application for extension of time to file and serve notice of appeal. In its terms, the application sought an extension of time in which to file and serve a notice of appeal from the judgment given on 2nd June 1993 and suggested that an extension of time was required because a notice of appeal was not filed and served within the time limited by 0. 52 r. 15. Order 52 r. 15(l)(a) of the Federal Court Rules provides that a notice of appeal shall be filed and served within twenty-one days after the date when the judgment appealed from was pronounced, the date when leave to appeal was granted or any later date fixed for that purpose by the court appealed from. Thus the application for extension of time treated the judgment and order of 2nd June

1993 as if it were final.

In truth, it is necessary to accept that that judgment and order were interlocutory. I am bound so to hold because of what the Full Court said in Barrett v Minister for Immigration, Local Government and Ethnic Affairs, (1989) 18 A.L.D. 129, at p. 130 and also by the authorities which were there cited, they being Hall v Nominal Defendant (1966) 117 C.L.R. 423 and Carr v Finance Corporation of Australia Ltd.,

(1981) 147 C.L.R. 246. The reasoning in those authorities may be summarised by saylng that, although the effect of the refusal of an extension of time in practical terms was to prevent the applicant from ever proceeding with her claim for judicial review, the decision in law is nonetheless to be categorised as interlocutory and not as final. Leave to appeal from it is therefore required, by virtue of S. 24(l)(a)

of the Federal Court of Australia Act 1976.

An additional complication, of which the applicant's legal advisers appear to have been unaware until today, was that under 0. 52 r. 10, the applicant had the option of making her application for leave to appeal to the learned judge at the time when he pronounced his judgment orally, or on notice filed and served within seven days from the pronouncement of the interlocutory judgment. Accordingly, it became necessary for counsel for the applicant to apply for leave to amend the application filed on 23rd August. In the absence of opposition from counsel for the respondents, leave was granted

to amend the application so that it constituted an application	for the fixing of a time pursuant to 0. 52 r. 10(l)(b) at a
date which would enable the granting of leave to appeal, and in addition an application for leave to appeal itself.
In dealing with a matter of this nature, it is ordinarily necessary to examine the delay which has occurred between the time when action ought to have been taken and the time when it has been taken, to see if there is an explanation for that delay. In the present case, the delay falls into three perlods. The first began on 2nd June, when the judgment was delivered and the order made, and ran until the end of July or early August. The second period then began; it ended on 23rd August, when the application was filed. Because of the circumstances that I have outlined in relation to 0. 52 r.
10, a third period must be regarded as having run from 23rd
August until today.
The evidence suggests that the first period of delay was very largely due to a medical condition suffered by the applicant. There is uncontradicted evidence, both from the applicant and from her treating medical practitioner, that she was suffering from depression, indeed severe depression, and stress disorder, which manifested themselves in symptoms including headaches, urinary frequency, mood swings,
difficulty in concentrating, poor memory, depression, insomnia, nightmares and weepiness. The opinion of the applicant's medical practitioner, Dr New, is that, from early
June until early August, by which time the applicant had been granted legal aid and her condition appeared to have improved,
the severe depression and other symptoms from which she was suffering had a number of effects. They were an inability to make judgments and to perceive realistically the consequences of events, an inability to concentrate, reduced level of functioning with consequent difficulty in commencing and completing even the most basic chores around her home, extremely debilitat~ng depression and d~stress and panic attacks.
In the opinion of Dr New, during that period the applicant would not have been capable of preparing a court document or of appearing in court unrepresented. Indeed, the doctor advances the view that when the applicant appeared on 2nd June unrepresented, she was not in a fit medical condition to conduct the proceedings on her own behalf.
During that period, on 18th June, the applicant telephoned the registry of this Court and then became aware of two things. One was that there was a period in which a notice of appeal was required to be lodged. The second was that there was a fee of $500 attached to the lodging of that appeal. At that stage, of course, the period within which she was required to apply for leave to appeal had already expired, so that she would have been too late even had she attempted to lodge a notice of appeal at that stage.
In the course of July, on the 19th, the applicant made an attempt to obtain legal aid by writing to the Legal Aid Commission. She says that during this time, with the help of friends, she did attempt to clarify the conditions of a proposed grant of legal aid. The issue of legal aid was resolved in her favour on 30th July and, as will appear later, she gave instructions by letter dated 4th August to investigate the question of appeal.
It is my assessment that the delay whlch occurred in thls first period was the result of the applicant's medical condition. She is not to be blamed for not having acted as she might have acted, if she had been fully capable of acting or well advised as to how to act. On the uncontradlcted evidence, her medical condition was severe enough effectively to prevent her from acting. It is also worth noting that it was not until 5th August that the edited reasons of the learned judge became available to the parties.
The second period of delay could be said to have begun on 30th July. This period involved matters being largely in the hands of solicitors attached to the Legal Aid Commission. The solicitor given primary responsibility for the applicant's file at that time was a Mr. Brown. On 30th July, Mr. Brown had a telephone conversation with the applicant, in which he told her that legal aid would be provided to her and explained the grant of aid. She then told him about the decision of 2nd June and her desire to appeal.
decision. He told her that he was going on leave for two He advised her that she was well out of time to appeal the
weeks and requested her to write to him to clarify what proceedings were outstanding and to tell him if any proceedings needed urgent attention. He then left for a holiday in the Northern Territory on 2nd August.
As I have said, on 4th August the applicant did write a letter to legal aid. That letter was apparently placed on her file in the office of the Legal Aid Commission, where it was seen by another solicitor, Mr. Neasey, on 6th August. Mr. Neasey did not immediately take any action with respect to the file, but he considered it on 11th August and decided to take no action until Mr. Brown returned from leave on 16th August. When Mr. Brown did so return, he looked at the file and on the 16th or 17th August, he formally accepted instructions to act. On 18th August, he advised the Australian Government Solicitor by telephone that he was likely to attempt to file a notice of appeal out of time. As I have said, on 23rd August the application was filed.
The period since that date, which I have categorised as the third period, occurred largely because, after the filing of the application and the fixing of its return date, the parties were waiting for it to come on for hearing. It has to be said that, both before 23rd August and thereafter, the solicitors acting on behalf of the applicant overlooked the provisions of 0. 52 r. 10. It does not appear that the
days, for the making of an application for leave to appeal, need to apply for the fixing of a time greater than seven came to the attention of her legal advisers until it was raised by senior counsel for the respondents today.
It might therefore be said that there are two major reasons for the applicant's delay in applying. The first was her medical condition and her consequent incapacity to make adequate decisions or execute proper acts on her own behalf. The second reason is the failure of the legal aid solicitors to act promptly and correctly on her behalf. It is now well accepted that a court in a case such as this does not necessarily make the client suffer prejudice by the consequences of the solicitor's conduct. Authority for that proposition is to be found in the recent judgment of the Full Court of the Federal Court of Australia in Corncare v A'Hearn, (12th October 1993, not yet reported).
In deciding the issues that are before me, it is necessary for me to go to the reasons for judgment which were given on 2nd June. They are primarily relevant, of course, on the question of leave to appeal, which I can only consider after I have resolved the question of fixing a time for notice of application for that leave and if I resolve that question in favour of the applicant. Counsel for the respondents did invite me to look at the reasons on the question of the extension of time, if I can shortly put it that way, on the basis that it would be futile for me to grant an extension of

time because I would not grant leave to appeal.	I therefore
look at the reasons in terms of both issues.

In viewing the reasons for judgment, I apply the principles which were laid down by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd. 119781 V.R. 431, as approved and perhaps qualified by the Full Court of this Court in Decor Corporation Pty. Ltd. v Dart Industries Inc. (1991) 33 F.C.R. 397. The principles are summarised in the former case in the judgment of McInerney J at p. 433, where his Honour said:

"It follows that we ought to address ourselves to the questions whether the order of McGarvie J is attended with sufficient doubt to warrant its being reconsidered on appeal and secondly whether substantial injustice will be caused to the applicant if the order of McGarvie J is allowed to stand. In relation to both these matters it must be borne in mind that the order appealed from is an order made in the exercise of a judicial discretion."

In the Decor Corporation case, at p. 399, the Full Court quoted with approval a passage from the judgment of Burchett J in Sharp v Deputy Commissioner of Taxation (1988) 88 A.T.C. 4,184 at p. 4,186. There, Burchett J said:

"In my opinion the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately a discretion must be exercised on what may be a fine balancing of considerations."

In the Decor case, the Full Court also said at pp. "In our opinion the principles discussed in Niemann and in other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations and the court should not regard its hands as tied in any case beyond this; that by S. 24(1A) the legislator has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice - concerning which the High Court has given, see Adam P. Brown Male Fashions Pty Lzmzted v Phillzp Morrzs Incorporated (1981) 148 C.L.R. 170 at p. 177, a strong warning that a "tight reign" should be kept on appeals - and an interlocutory decision determining a substantive right - where leave wlll more readily be

granted.

"

On the view which I take of it, this case is to be treated as belonging to the latter category. That is to say, it is not a common interlocutory decision on a point of practice, but rather is one in which in substance the applicant's rights are to be determined. It must be recognised that, if she fails in this application, the applicant will, for all practical purposes and probably for all legal purposes, have no possibility of raising her claim under the Judicial Review Act, with respect to the decision to dismiss her from the Australian Public Service. I note that, in Gordon M. Jenkins & Associates Pty. Ltd. v Coleman (1989) 87 A.L.R. 477, at p. 478, a Full Court of this Court appeared to regard it as a sufficient ground that the practical effect of the findings on which leave to appeal was sought was final.

A number of instances were urged by counsel for the applicant as disclosing error in, or at least as raising doubt as to the correctness of, the reasons for judgment delivered
on 2nd June.	I deal with only three of them.

In the first place, at pp. 13, 14 and 18 of those reasons the learned judge appears to have fallen into the error of visiting on the applicant the consequences of her solicitor's failure to act. At p. 13 his Honour refers to an affidavit of the applicant's then solicitor and to the fact that a deliberate decision was made to defer taking action under the Judlcial Review Act in relation to the dismissal, until after a decision of a Human Rights and Equal Opportunities Commission inquiry into some complaints made by the applicant under the Sex Discrimination Act 1984. His Honour was critical of the confusion of the Human Rights and Equal Opportunities Commission proceedings with the question of dismissal and appears, as I have said, to fix the applicant entirely with the consequences of the error of the solicitor in failing to make an application within time.

At p. 15 of his reasons for judgment his Honour

said:  -

"I should state at the very beginning that on the

material before me I am not in a position to form or express any opinion as to the merits of the claim for judicial review or to form any view at all upon the question of the correctness of the dismissal. Accordingly I can take no account of any of those matters. This is not a case where it is appropriate to do so. Compare what was said by the Full Court in Barrett v Minister of Immigration above, particularly at pp. 130 to 131."

This passage raises doubt as to whether his Honour was	refusing to examine the applicant's case to see whether it was
capable of success. It is arguable that, if the applicant had put forward a case which had some prospect of success, that was a matter proper to be placed into the scales on her side, and that by turning his back on the issue altogether, his Honour was failing to do that. It may have been true, as counsel for the respondents urged, that his Honour had a mass of conflicting affidavit material, without the benefit of cross-examination of any of the deponents, and was not able to come to a conclusion as to where the truth lay. In my view, that would be of no importance. His Honour might well have looked at the applicant's material and asked himself whether it disclosed a case which was worthwhile pursuing. If it did, then it may be arguable that the applicant was entitled to have that factor counted in her favour.
The third aspect that I look at is that at p. 17, where his Honour, having been critical of the applicant's then solicitor for confusing the Human Rights and Equal Opportunities Commission inquiry with the question of dismissal and judicial review of dismissal, stated that he was prepared to accept as a factor weighing against the applicant the physical or emotional effect of the proceedings in the Human Rights Commission upon the members of the public service working in the section. It does not appear to be clear from his Honour's reasons why he saw those effects as amounting to
prejudice which he was entitled to count in the balance against the applicant. I must therefore regard it as arguable
that his Honour erred in that respect.
The arguable errors which are detectable in his Honour's reasons are sufficient in my mind to raise doubt which warrants leave to appeal being granted. If leave were not granted, as I have said, the applicant would effectively lose forever any opportunity to have her complaint about her dismissal ventilated under the Judiclal Review Act. If it occurred, that result would occur in part because of her ill health and in part because of the failure of some members of the legal profession to act properly on her behalf. That combination amounts, in my view to substantial injustice if the judgment were to be allowed to stand. In the circumstances, therefore, I am of the view that, if the application can be properly brought under 0. 52 r. 10, leave to appeal ought to be granted.
With respect to the question of time, one further factor remains to be considered. It is that the respondents have filed no affidavit material whatsoever. There is nothing in the applicant's material, and indeed no submission, to suggest that any prejudice would flow to the respondents from the delay between early June and the present time.
Accordingly, it seems to me proper that I should fix a time pursuant to 0. 52 r. 10(2) (b) for the filing and
service of notice of the application for leave to appeal. I should fix that time so as to permit that application to be
made today and I should also grant leave to appeal from the judgment and order on 2nd June 1993. The orders of the Court therefore will be as follows:

(1) the time for filing of notice Of application for leave to appeal from the judgment delivered and order made on 2nd June 1993 in matter number TG 2 of 1993 be fixed at today;

(2) leave be granted to Rossi June Harris to appeal from

the judgment delivered and order made on 2nd June
1993 in matter number TG 2 of 1993.

(3) the applicant pay the respondent's costs of the

application taxed on the basis that appearance only
by one counsel was justified.

(4) the amended application filed this day stand as the

applicant's notice of intention to apply for leave
to appeal.

Solicitors for the applicant:	Legal Aid (Hobart)
Counsel for the applicant:	Mr. Porter
Solicitors for the respondent:	Australian Government Solicitor
Counsel for the respondent:	Mr. Tracey Q.C. with Mr.
Davis  .
Date of Hearing:	29th October 1993
Date of Judgment:	29th October 1993

I certify that this and the preceding (14) fourteen pages are a true copy of the reasons for judgment of his Honour Justice Gray.

Associate:

Date:	f5 - 11 -C( 3
JUDGES CHAMBERS, FEDERAL COURT OF AUSTRALIA. 450 LITTLE BOURKE STREET,

Js AUSTRALIA

-A>>>>15<f(<:<CC MELBOURNE. 3000

16 November 1993

MS Elizabeth Harrison
Library Services
Principal Registry
Federal Court of Australia
Level 19
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Madam

I now enclose the following Reasons for Judgment together with its disk to enable you to update the Computerised Legal Information Retrieval System:-

1.    R. J. Harris v. Beverley Moore, Delegate of the Secretary of the Department of Health Housing and Community Services and Department of Health Housing and Community Services.

No. TG 10 of 1993

I look forward to the return of the disk on completion.

Yours faithfully

CAROL DAVIES
Secretary to Gray J.