Harris, R.J. v Moore, B

[1993] FCA 534

JIJDGEENT No. ........ .,...,.... ~ o ~ ~ o o ~ a o ~ ~ D 534- 1 93

TASMANIA DISTRICT REGTSTRY	NO TG 2 of 1993
GENERAL DIVISION
B E T W E E N :

ROSSI JUNE HARRIS

Applicant

A N D :

EEVERI,EY MOORE. DELEGATE OF THE SECRETARY

OF THE DEPARTMENT OF HEALTH. HOUSING AND COMMUNITY

SERVICES AND DEPARTMENT OF HEALTH. HOUSING AND

COMMUNITY SERVICES

COUZT :	NORTHROP J
PLACE :	HOBART
DATE:	2 JUNE  1993 11 A U G 1993

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

EX TEMPORE REASONS FOR JUDGMENT

I realise this is a most important matter for the

applicant MS Harris. It can affect her future professional

activities. However, I have formed a very firm view of what
should be done with respect to the motion and I can see no

the Federal Court under the Administrative Decisions (Judicial

useful purpose in reserving my decision in an attempt to
express in a mare lucid way the reasons why I have come to
that firm decision. Therefore, I propose to give my reasons
now, even though they nay be briefer than otherwise they would
have been. In the process I hope to be able to explain why I

have come to the conclusion I have.

In order to explain the position, one should start with

the fact that on 16 March of 1993 an application was filed in

Harris was the applicant and the respondents were Bev Moore, who was sued as the delegate of the Secretary of the Department of Health, Housing and Community Services, and the Department of Health, Housing and Community Services. The application was brought under s5 of the Judicial Review Act and sought to review the decision of the delegate that the employment of the applicant with the Australian Public Service be terminated with effect from close of business on 3 April 1992. The applicant knew of that termination about that time and the actual day is not important for present purposes.	Review) Act 1977 (the "Judicial Review Act") in which Rossi be reviewed occurred almost 12 months before the commencement of the proceedings in this Court.
The grounds for the application are merely a summary of certain of the paragraphs of subsection 5(1) of the Judicial Review Act. No particulars were given in the application to support those grounds. The grounds specified are as follows
of the Judicial Review Act in relation to each of them: and I shall insert what I think is the appropriate paragraph "1. That a breach of the rules of natural justice have

(sic) occurred in connection with the making of the
decision; (s5(l)(a))

2. That the making of the decision was an improper exercise of the power conferred by the Public Service Act 1922 in pursuance of which the decision was made; (s5(l)(e), but no particulars are given as required by subsection 5(2))

3.    That there was no evidence or other material to justify the making of the decision; s5(l)(h) but no particulars are given as required by subsection, and

4.   That the decision was otherwise contrary to law; (S5(l)(i))"

Section 11 of the Judicial Review Act 1977 contains

provisions for the making of an application for review of a decision under s5 of that Act. It is not necessary to read the whole of that section but the effect of it is that any

application to the Court under s5 for an order of review must
be made within a period of 28 days commencing on the day on
which the decision is made and ending on the 28th day after
that date. In this case, the decision was made on 3 April
1992 and so at the latest the application to review should
have been made by the end of April or early May 1992. It was

not done. It is noted that the requirement of sll is clear

and the policy behind it is obvious, being to ensure that
administrative decisions are not kept in limbo, as it were,
indefinitely, and that any persons seeking to review such a
decision should take speedy action to commence proceedings in

this Court. There is a provision contained in sll which
allows a court to extend the time limit of 28 days.	That is a
discretion conferred on the Court.	It is a discretion which

is unfettered by statute. That means that the statute, the factors to take into account in the exercise of the discretion to grant an extension of time. The solicitors then acting for the applicant were aware of this position and at the same time that the application was issued, a notice of motion was filed in which the applicant sought an extension of time in which to make an application for an order of review of the decision made on 3 April 1992. There was an affidavit sworn by Leanne Topfer, the then solicitor for the applicant, in support of the motion for extension of time.

The matter came on for hearing for directions before this

Court on 19 April 1993. On that occasion the Court gave directions as follows:

"1. The applicant's motion, notice of which is dated 15

March 1993, be heard and determined before the hearing of the application;

2.    The applicant file and serve any further affidavits on which she proposes to rely by 15 April 1993;

3.    The respondents file and serve any answering affidavits by 7 May 1993;

4.    The applicant file and serve any affidavits in reply by 19 May 1993;

5.    The motion be listed for hearing on 1 June 1993 at Hobart at a time to be determined by the Registrar."

By notice dated 27 April 1993, the solicitors who had

been acting for the applicant gave notice that they had ceased

to act and that they had notified the applicant of their

intention to file this notice. As a result, since that date,

27 April 1993, the applicant has appeared in person and has not had the benefit of legal representation. This has made her task more difficult and has made the task of the Court

more difficult, but in this regard I should indicate that the
solicitor appearing for the respondents, Mr T. Davis, has been
very frank and very helpful in referring to the legal
principles to be applied and in canvassing various factors,
not always factors supportive of his clients, which have
assisted the Court in forming its views.

In the course of submissions, reference was made to a
number of authorities which I will mention, Duff v Freiiah

(1982) 62 FLR 280; Lucic V (1982) 45 ALR 411; Hunter

Vallev Develo~ments Ptv Limited v Cohen (1984) 3 FCR 344;

Barrett v Minister for Immiaration Local Government And Ethnic

Affairs (1989) 18 ALD 129; Marrick v Comcare, unreported 12

February 1993 being matter No SG 51 of 1992;	v Crimes
Com~ensation	Tribunal [l9931 1 VR 297 and Younaer v
Re~atriation	Commission Federal Court 10 August 1992 being

matter No VG 263 of 1992. I have had regard to the general principles discussed in those cases. It is helpful to have authorities of that kind as illustrating the views of

different judges as to what is relevant in various cases but
it must be remembered that the discretion conferred by sll of

the Judicial Review Act to extend the time is unfettered and

the courts should not try to fetter that discretion by laying

down principles which are to be treated as if they were

statutes for the purposes of exercising a discretion. In each case it is for the Court to make the findings of fact relevant to the matter before the Court; to consider all those matters; to weigh up all those matters and then make a decision as to

which way the discretion should be exercised. At the same time it is helpful to know what other judges have done but often terminology used can be misleading and in this regard

the use of the word "prejudice" may give rise to doubts and uncertainties. This is illustrated in this case by the way the applicant referred to prejudice in her final submissions

and gave to it a meaning which, in reality, is not the one
used in the authorities. Prejudice, in this regard, refers to
the results flowing from the delay, how are people affected by

the delay, and, having regard to those matters, what weight

should the Court give to the effect on those people. They are

factors which are to be considered and for the sake of
convenience I shall refer to them as prejudice, but the word
"prejudice" by itself does connote certain other aspects which
are not really relevant to cases of this kind. The important
thing to remember is that initially a short period of time is
allowed for a review but the Court can extend that time but it
must do so in the exercise of a judicial discretion, having
regard to all relevant matters. If it takes account of
matters which are not relevant a Full Court can correct the
trial judge. At the same time the Court must consider all

facts put before the Court which are relevant to the issue.

A large number of affidavits with voluminous exhibits

have been filed in this matter but not in accordance with the
directions given by the Court on 19 April.	The Court has

before it what amounts to almost an embarrassing amount of
information. Much of this information, however, in my opinion

is irrelevant to the issue I must decide on the motion for

extension of time. The Court has before it the affidavit of

Leanne Topfer sworn 22 March 1993. There were no further affidavits filed on behalf of the applicant and so the next affidavit is an affidavit of Peter Fisher, the state manager of the Tasmanian office of the Department of Health, Housing,

Local Government and Community Services, being the second respondent, the affidavit being sworn on 7 May 1993. There is an affidavit in reply sworn by the applicant on 19 May 1993. There is a second affidavit by Peter Fisher sworn 28 May 1993 and an affidavit of Lynette Littlejohn, a senior adviser in the Department of Health, Housing, Local Government and Community Services, who is a senior professional officer for the Commonwealth Rehabilitation Services in Tasmania and is a Bachelor of Social Work and a member of the Australian

Association of Social Work. There is an affidavit in reply to

that by the applicant sworn 19 May 1993. There is an
affidavit by Nerida Helen Kinross-Smith sworn 7 May 1993. She
is a psychologist and her affidavit is directed to the effect
on some of the other officers, or at least one other officer
in the relevant part of the service in which the applicant had
previously worked. There is an affidavit in reply by Rosemary
Joan New, a medical practitioner, sworn on 15 May 1993 and
filed on behalf of the applicant and an affidavit of Mac

Hoban, a resident psychologist sworn on 19 May 1993 and filed

on behalf of the applicant.

It is useful at this stage to give a very brief outline

of the relevant facts. On 9 April 1990 the applicant was
appointed as a rehabilitation counsellor class 2, an office
now referred to as a professional officer class 2, in position
number 511 in the north-west regional office of the
Commonwealth Rehabilitation Service situated at Burnie in
Tasmania.

Having regard to the provisions of s47 of the Public

Service Act 1922 her initial appointment was on probation.

Subsection 47(1) is set out:

"47.(1) Subject to subsection (2), the appointment of a

person to the Service as an officer (other than a appointment on probation."

The purpose of such a provision is clear. A person

appointed as an officer after the probation period has
expired, an officer has permanency of employment in the public
service in the sense that thereafter that officer can only be
dismissed in conformity with detailed procedures prescribed in
the Public Service Act, the Public Service Regulations and
other documents. The probation period is a period during
which attention is given to the person who has been appointed
in order to determine whether the appointment is appropriate,
the person appointed is capable of doing the work properly and

the appointment should be continued. In broad outline, unless

within two years that person is either dismissed or confirmed,	the person is deemed to be an officer with permanency with all
that flows from that, at the expiration of the two year period.
Subsection 47(4) of the Public Service Act confers powers on a Secretary. That subsection is set out:

" ( 4 ) The relevant Secretary may, at any time after an

officer (other than an SES officer) is appointed to the confirmed, terminate the appointment."

Subsection 47(5) provides:

" ( 5 ) The relevant Secretary may, at any time after the

end of the period of 6 months after an officer is
appointed to the Service on probation, confirm the
appointment.

Subsection 47(11) is very important to this matter and the relevant parts of that subsection are as follows:

" (11) ... the relevant Secretary may, under

subsection (4) ... terminate an officer's appointment to

the Service on any of the following grounds:

(a) . . .

(b) that he or she considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory;"

In the present case problems arose in relation to the relationship between the applicant, her supervisor and other

officers in the section in which she worked.	This resulted in
the applicant making a complaint under the provisions of the
Sex Discrimination Act 1984.	In due course there was a

hearing in relation to that complaint. That complaint related allegations of sexual discrimination. It appears that both

to allegations of sex discrimination under the Sex
Discrimination Act and in particular under subsection 14(2).
That matter had nothing to do with the dismissal of the
applicant. The inquiry, subsequently undertaken by the Human
Rights and Equal Opportunities Commission constituted by the

considered that the inquiry in some way might have had relevance to the question of the dismissal of the applicant and to her re-employment and this again has added to the confusion. I should also state at this stage that, although there are a large number of affidavits filed in this matter, nobody has sought to cross-examine any of the deponents.	the applicant and her solicitors and possibly also Mr Fisher some of the affidavits and the Court has not had the benefit of being able to question the deponents to try and clear up
those ambiguities. In some respect those ambiguities are of
importance. I mention these matters now because of the question of the confusion between the nature of the inquiry by the Human Rights and Equal Opportunities Commissioner and the termination of the employment of the applicant. But in any event, it appears that there were what might be described as certain adverse reports by the supervisor, there were these conflicts of relationships between the applicant and other officers and a position of virtual stalemate had been reached.

Further, it appears that from some date in about June of

1991 the applicant did not attend her place of employment. It seems that she was on sick leave at least until a date towards the end of September 1991 and, although the applicant

considers that she was possibly entitled to stay on sick leave
after that time, the facts are, as appears from the affidavit
of Mr Fisher, that thereafter she was really absent without
leave. Although that factor of itself was not a ground of
dismissal it may well have been relevant in the grounds upon
which she was dismissed.

In the meantime, a claim had been made by the applicant

to Comcare for workers compensation resulting from work-
related injuries. Comcare had rejected the claim and the
applicant sought review of that decision by the Administrative
Appeals Tribunal. That review is still pending and has not

yet been heard. So towards the end of 1991 there were in

existence the two series of proceedings, the Comcare claim and the AAT review on the one hand and the complaint under the Sex Discrimination Act.

The hearing before the Commission did not start until

sometime later in 1992. In the meantime, a decision was made to dismiss the applicant under subsection 14(1) of the Public

Service Act. By notice dated 3 April 1992 and headed

"Termination of Appointment" and signed by Beverley Moore as a delegate of the Secretary, this termination took effect from 3

April 1992. I read the notice:  PUBLIC SERVICE ACT 1992

TERMINATION OF EMPLOYMENT

Pursuant to Section 47 of the Public Service Act, the terminated with effect from close of business on 3 April
appointment of Rossi June Harris, Professional Officer
Grade 2 (Rehabilitation Counsellor), Department of

1992."

That notice was just within the two year period mentioned in s47 of the Public Service Act. Reasons for that decision

appear in a document attached to the notice and headed
"Termination of Probation - Rossi Harris". Those reasons are

set out:

probation reports and the responses from the probationer,	"Having again examined the information contained in the should not be appointed to the Public Service.
With due regard to Section 47(ii) (sic) of the Public Service Act, the reasons for this are:
(1) The manner of her performance of her duties has not been satisfactory
(2) as she has been on sick leave there have been no further assessment reports which may have provided

new information about her performance.

The decision therefore has, of necessity, to be based on the original reports and comments.

The two years allowed for confirmation of probation under the Act, expire on 8/4/92 and after this date the probationer is automatically appointed as an

officer of the Public Service. Given that her
performance is not satisfactory termination of her

probation must occur before that date.

For the above two reasons I have decided to terminate MS

Harris' probation."

The reasons were signed "Bev Moore" and dated 3 April 1992.

The decision was then conveyed by telephone to the

solicitor for the applicant and a copy was forwarded under
cover of a letter dated 6 April 1992. Therefore, as I said at
the beginning of these reasons, the time within which the
application for review should have been taken was late April
1992 or early May 1992 at the latest.

It seems clear that, even from the very beginning, the applicant's solicitors knew of the existence of the Judicial Review Act, even though the solicitor says she had no

knowledge of the time within which an application should be

made and did not know of the time limitation until much later.

Nevertheless, by a letter dated 2nd April 1992 the solicitor

for the applicant had written to the department in relation to

the proposed termination stating, among other things, an

intention to make a claim under the Judicial Review Act.	The
letter contained the following paragraphs:

"In the circumstances we request you to defer making any
such decision as to our client's appointment or otherwise
to the Public Service until after a finding is made by
the Human Rights and Equal Opportunities Commission.

Would you please let us have your response by return as depending upon your advice and the finding of the Commission we will be making an application for an order for review to the Federal Court pursuant to Section 5 and/or 6 of the Administrative Decisions (Judicial

Review) Act. "

The reference to sections 5 and 6 are appropriate because

section 5 refers to decisions and section 6 refers to conduct.

The letter was written before the decision dismissing the

applicant had been made but in the expectation that such a

decision was likely to be made. The impression one gets from

reading the affidavit of Leanne Topfer is that there was a the decision of the Commission hearing the complaints under
deliberate decision made to defer taking action under the

the Sex Discrimination Act. This is made clear by what is

said in paragraphs 37 and 39 of the affidavit of Leanne

Topfer. In these circumstances, it seems that a deliberate

decision was made not to institute proceedings. Reference is made in the letter to the proceedings before the Human Rights Commission, and the letter seems to assume that that decision could affect the dismissal matter. But as I said earlier,

Act over some six days. The applicant appeared unrepresented and the hearings occurred late March and early April 1992 and straddled the actual decision to dismiss the applicant from her position. The decision by the Commissioner was not given until November 1992 at which time the Commissioner found that there had been no breach of the Sex Discrimination Act but made some comments which can be said to be adverse to some of the officers of the department at Burnie.

that proceeding relates to different matters altogether. The

Thereafter things did not happen very quickly. There

were problems obtaining legal aid but that of itself cannot
affect the decision. Further attempts to obtain legal aid
were made in relation to possible judicial review proceedings.

Eventually legal aid was obtained for the purposes of getting

advice from counsel. Counsel was briefed in January 1993 and

counsel. The brief to counsel, as far as legal aid was concerned, was to obtain the opinion of counsel, "as to the merits of instituting proceedings under the Administrative	it was not until March 1993 that advice was received from paragraph 32 of the affidavit of Leanne Topfer. The advice given on 4 March 1993 and received on 10 March 1993 is stated in paragraph 33 of the affidavit and I quote:
The application then in fact was made on 15 March and filed on	"His opinion (Counsel) concluded that the decision of the employment, was a reviewable decision under the Administrative Decisions (Judicial Review) Act but stated, "the problem is that the applicant is out of time to make application for an order of review of the decision." This was the first time that I became aware that there was a time limit under the Act in which to make an application."
16 March.	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 (c/f what was said by the Full Court in Barrett v Minister of Immiaration, above, particularly at pages 130 to 131).

It is in these circumstances that I do have to consider
the motion for the extension of time. There has been a long

delay, delay which was intentional in the sense that there was an intention not to pursue a claim until after the decision by

the Commission. Even after that decision had been given there

was long delay. In this regard, the absence of knowledge of

importance as it might otherwise have. The importance of the
delay, however, is in what has happened with the Public

the limitation period does not appear to have the same commenced. This is made very clear from the material contained in the affidavits of Mr Fisher and in summary it is as follows. On 21 October 1992 Mr Fisher made a decision to advertise the applicant's previous position for filling on a permanent basis. Up until that time, the actual position had

been occupied on a temporary basis. The position had not been

filled on a permanent basis. On 29 October 1992, the position

was advertised in the Commonwealth Gazette and on 31 October 1992, the position was advertised in the Advocate newspaper. Mr Fisher states that he decided to do this even though the

Human Rights and Equal Opportunity Commission decision had not been given but that he would not fill the position until after that decision had been given, acting, possibly, on the

mistaken belief that that decision could affect the employment
of the applicant and, possibly having regard to what was
contained in the letter of the solicitor for the applicant of
2 April 1992 and set out earlier in these reasons. The
decision of the Commission was given on 2 November 1992. On
21 December 1992, Mr Fisher accepted the recommendation of a
selection advisory committee to promote a member of the

department. The promotion came into effect on 4 February

1993, so the person who was recommended took up the confirmed

position, that is position 511. Therefore, because of the
long delay in instituting the application the position which
had been held by the applicant on a probationary basis had
been filled. That is a very important factor, having regard
to the weight that must be given by the Court to the effect on
other persons arising from the delay.

This applies not only to the person who filled the

position itself, but also to the way in which public

departments operate, the procedures by which positions are limitations of 28 days. That time had expired. He had waited a much longer time before taking action and then was entirely justified in taking steps to fill that position in accordance with the provisions of the Public Service Act.
filled and the fact that there cannot be an indefinite holding
of positions vacant in the case of the possibility of a

judicial review being sought. It must be accepted that Mr

In addition, the evidence given by Mr Fisher,

particularly in paragraphs 24 to 31 of his first affidavit, are important in that it does disclose facts which show the trauma and stress imposed on members of staff working at the

relation to the applicant and what had occurred as a result of the hearings before the Human Rights and Equal Opportunity	section at Burnie and arising from what had occurred in personally, and the affect on the disruption of the affairs
and activities of the section of the department involved.

Similarly, there is evidence, which I accept, of the

psychological or emotional affect on the members of the
service working in the section of the proceedings in the Human
Rights Commission being the evidence in the affidavits of
Lynette Littlejohn and Nerida Helen Kinross-Smith. They are
factors to take into account. These factors to a large
extent, although divorced from the actual dismissal matter, do
have a bearing on the motion as being an effect on other persons.

I am aware of the effect on the applicant herself. In

the solicitor must also affect the position of the applicant
in these proceedings. Having regard to the length of delay,
the reasons for the delay, including the lack of knowledge on
the part of the solicitor (I must accept her evidence that she
did not know of the existence of the time limitation), the
fact that there was a deliberate decision to not prosecute an
application for review, the delay arising from that, the delay
even after the decision by the Commission was given in

reality, and unfortunately, the lack of action on the part of the Department in the meantime, without undue haste, had proceeded to fill the office vacated by the applicant, this is a case where, in all the circumstances and having regard to all the relevant factors to be taken into account, the Court should refuse to grant leave to the applicant to commence the proceedings out of time. Accordingly, the motion is refused.

The orders of the court are as follows:

1.    The motion, notice of which is dated 15 March 1993, is refused with costs;

2.    The application is dismissed with costs.

I certify that this and the preceding seventeen (17) pages are

a true copy of the Ex Tempore Reasons for Judgment of The

Honourable Mr Justice R.M. Northrop.

Associate: !?%C&<-

Date:  1493

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