Hepworth, B. v The Commissioner of the Australian Federal Police

[1992] FCA 506

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTR?GIAN CAPITAL TERRITORY	)
) NO. ACT G 26 of 1992
DISTRICT REGISTRY	1
GENERAL DIVISION

BETWEEN: BRIAN HEPWORTH

Applicant

AND: THE COMMISSIONER OF THE

AUSTRALIAN FEDERAL POLICE

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	17 July 1992
WHERE MADE	Canberra
THE COURT ORDERS THAT:
36 of the Federal Court Rules.

1.    The motion notice of which was given on 15 June 1992 be dismissed.

2.    The application filed on 15 June 1992 be dismissed.

3.   The applicant pay the respondent's costs of the motion and of the application filed on 15 June 1992.

m: Settlement and entry of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	)
) NO. ACT G 26 of 1992
DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: BRIAN HEPWORTH

Applicant

AND: THE COMMISSIONER OF THE

AUSTRALIAN FEDERAL POLICE

Respondent

C O W : Neaves J.

m: 17 July 1992

REASONS FOR JUDGMENT

This is a motlon by Brian Hepworth ("the applicant") for an order, pursuant to s.ll(1) (c) of the Administrative Decisions i Judicial Review) Act 1977 (Cth) ( "the Judicial Review Act"), extending the time within which a proceeding under that Act may be commenced in relation to what have been identified as -

(a)	the decision of the Cornmissloner of the Australian Federal Police ("the respondent") made on 11 September 1989 accepting "a recommendation made by a Review Panel on a grievance submitted by the applicant on 17 February 1989 in relation to the appllcant's salary translation resulting from the Career Structure Review"; and
(b)	the decision of the respondent made on 7 June 1991 that "the appllcant's application for Accelerated Incremental Advancement did not meet the criteria" for such advancement.

The motion, which is opposed by the respondent, is supported by the affidavit of the applicant sworn 1 June 1992. The applicant was subject to cross-examlnatlon.

A new career structure for the Australian Federal Police became effective on 1 January 1989. The ranks in the new structure, namely Constable, Sergeant, Superintendent, Commander and Assistant Commissioner, replaced the previously existing ranks (see regs 3 and 4 of the Australian Federal Police Regulations (Amendment) Regulations, Statutory Rules 1988 No.363). An officer who, immediately prior to 1 January 1989, held a position within the rank of Inspector, Chief Inspector or Superintendent was to be taken, on and after 1 January 1989, to be the holder of a posltion wlthin the rank of Superintendent in the new structure (ibid., reg.31). On 1 December 1988, rates of salary were adjusted to reflect the implementation of the new career structure. There were five salary levels within the new classification of Superintendent. In the implementation of the new structure, provision was made

Chief Inspectors or Superintendents to one or other of those	for the translation of officers who were formerly Inspectors,
five salary levels. The level at which the officer was placed depended on the rank held, and the salary and sklll allowances that were payable to him on a continuing bas~s, on 31 December 1988. An Inspector who, on 31 December 1988, was not receiving a Detective Allowance was translated to the first increment within the classification of Superintendent. An Inspector who, on 31 December 1988, was receiving such an allowance on a continuing basis, was translated to the second increment within that classification.
By agreement between the respondent and the Australian Federal Police Association, a committee styled the Australian Federal Police Review Panel was established. Its function was to consider grievances arising from the translation of members to the new structure and to make recommendations thereon to the respondent. The agreement recognised that the respondent, while obliged to take due cognizance of a recommendation of the Review Panel, was not bound to accept it.
It appears that, on 31 December 1988, the applicant held the rank of Inspector but was not at that date in receipt of a Detective Allowance. Consequently, he was translated to the rank of Superintendent but at the first increment level within that classification. On 17 February 1989, the applicant submitted a grievance on the basis that he should
have been translated to the second increment level within that classification. In July 1989, the Review Panel met to
consider the applicant's grievance and subsequently recommended that it be denied. On 11 September 1989, the respondent accepted that recommendation.
The basis of the applicant's grievance was that, although he was not being paid a Detective Allowance on 31 December 1988, he had previously been in receipt of such allowance on a continuing basis. He had been promoted Detective Inspector in January 1985 and had carried out the duties of the position of Inspector in Charge, Special Crime, until June 1985 when he was posted to Cyprus as the Police Operations L~aison Officer for a period of twelve months. In December 1986, after his return from Cyprus and a period of leave, the applicant took up a position in the Inspectorate, City Branch, in which position, apparently, he was not paid a Detective Allowance.
The applicant claimed that, at an officers' meeting on 1 September 1988, he was informed by Chief Superintendent Mills, then Officer in Charge, ACT Operations, that he, the applicant, would be taking up duties as Detective Superintendent (Crime Commander), Northern Division, Australian Capital Territory and that he would be taking up that position "as soon as possible, but in any event prior to 1 January 1989". An organisational chart was produced at that meeting showing the applicant occupying that position. 1n
Allowance. Because there was delay in the refurbishing of the that position, the applicant would have been paid a Detective
buildings and the transfer of offlce equipment, the applicant's transfer to the new position did not, in fact, take place until 27 February 1989.
After receipt, by letter dated 12 September 1989, of notification of the respondent's decision denying his grievance, the applicant took no further action in relation to that decislon until his solicitors, no doubt on his ~nstructions, wrote to the respondent by letter dated 8 November 1991 requesting, pursuant to s.13 of the Judicial Review Act, in relation to the decision, 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. By letter dated 4 December 1991, that request was denied in view of the period which had elapsed between the date upon which the applicant had received notice in writing of the decision and the date of the request. The applicant was, however, subsequently provided with background material.
The next step taken by the applicant in respect of the decision of 11 September 1989 was the filing in this Court on 15 June 1992 of a substantive application for an order of review under the Judicial Review Act in respect of the decision and notice of the motion at present before the Court.
I turn now to the circumstances in which the second of the decisions which the applicant wishes to have reviewed, namely the decision of 7 June 1991, was made.
It appears that, in accordance with the provisions of the new career structure, the applicant was eliglble to be considered for the incremental advancement of his salary to that of the second increment within the classification of Superintendent with effect from 1 March 1990 and, if that advancement were approved, to the third level wlthin that classification with effect from 1 March 1991.
On 1 January 1990, s.32A of the Australian Federal Police Act 1979 (Cth) came into operation. That section had been inserted in the Act by s.24 of the Australian Federal
p o l i c e 1989 (Cth). Sub-
section (1) of section 32A provides -

"(1) Where a scale of rates of salary applies to a position or positions of member within a particular rank, the Commissioner may advance within that rank, or accelerate the advancement within that rank of, a member occupying that position or one of those positions."

It appears that, at some tlme prior to 23 February 1990, the applicant and a number of other officers holding positions within the rank of Superintendent applied, through the Australian Federal Pollce Association, to have their salaries increased, with effect from 1 March 1990, to the third increment of the rates of salary determined for that

classification. It is not clear from the material before the	Court whether the applications were based on s.32A. It seems
clear, however, that the grounds on which the applicant relied were substantially the same as those relied on in the earlier grievance application. As the applicant says in his affidavit sworn on 1 June 1992 (par.9), incremental upgrading was sought "as a result of the anomaly created by the delay" in his transfer to the position of Detective Superintendent (Crime Commander), Northern Division. On 23 February 1990, the Officer in Charge, Personnel Division, Commander M.J.M. Vincent, wrote to the Assistant Cornmissloner, Personnel and Training, supporting the officers' claims, including the claim by the applicant.
On 22 May 1990, the applicant was informed that his application had been rejected.
It was not until 13 March 1991 that the applicant took any further step in the matter. He then applied to have his salary increased to the third increment level within the Superintendent classification. He had already advanced to the second level within that classification, presumably with effect from 1 March 1990. Although the application is not in evidence, it appears to have been taken to be an application for accelerated incremental advancement pursuant to s.32A of the Australian Federal Police Act. The material before the Court does not make clear from what date the applicant was seeking such accelerated advancement. Substantially the same
grounds as had previously been relled upon were advanced in support of the application. It further appears that, on 29
May 1991, guidelines for the consideration of applications for accelerated incremental advancement were formulated and that, in accordance with those guidelines, the applicant's application was rejected, the applicant being so informed on 11 June 1991. The relevant decision and the basis upon which it was made are set out in a memorandum dated 7 June 1991 from the Deputy Commissioner to the Officer In Charge, Internal Investigation Division.
The applicant consulted a solicitor on 8 August 1991. The applicant has said that thereafter he applied for legal assistance and obtained counsel's advice. No further details are given. However, the obtaining of counsel's advice appears to have led to his solicitors sending the letter dated
8 November 1991 requesting a statement pursuant to s.13 of the
Judicial Review Act.
It follows from what has been said that a very lengthy extension of time is necessary if the applicant is to be able to seek orders of review in respect of the declslons of 11 September 1989 and 7 June 1991. In relation to the former, an extension of the order of 2 years and 8 months is necessary. In relation to the latter, an extension of 1 year is required.
It is now well settled that an applicant who seeks an extension of time within which to bring proceedings under the Judiclal Rev~ew Act must show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" that the extension sought be granted.
In my opinion, the applicant has failed to show an acceptable explanation of the lengthy delay which has occurred
In commencing proceed~ngs in relation to the declslons.
The applicant has given no explanation for the delay between the date when the dec~sion of 11 September 1989 was communicated to him and the date in or about February 1990 when the application through the Australian Federal Police Association for an increase in salary was made. Again, no explanation is offered for the delay between the date upon which the applicant was informed that that application had been rejected, 22 May 1990, and 13 March 1991 when he applied for accelerated incremental advancement pursuant to s.32A of the Australian Federal Police Act. Even after the decision rejecting that application was communicated to him in June 1991, he took no step to obtain legal advice for some two months. Finally, after his request for a statement under s.13 of the Judicial Review Act was refused, some seven months elapsed before legal proceedings were commenced.
It is not claimed that the applicant was unaware of the judicial procedures available to him to have the decisions reviewed. Indeed, having regard to the positions he held,
commencing proceedings under the Judicial Review Act in that could hardly be suggested. Nor can the delay in
respect of the decision of 11 September 1989 be excused, as counsel for the applicant sought to do, on the basis that the applicant was, in the meantime, pursuing an alternative course of action to redress the original grievance, a course of action which might have made recourse to legal proceedings unnecessary. In this regard it is of significance that, having had his grievance that he was improperly translated into the new career structure at the first increment level of the Superintendent classification rather than at the second increment level denied, the applicant did not pursue that goal further but, after a period of delay, pursued an entirely different goal. The grievance was aimed at having the applicant's salary fixed at the second increment level as from 1 January 1989. He no longer sought that result. The approach he adopted was to rely upon the accelerated incremental advancement provision contained in s.32A of the Australian Federal Police Act. This approach accepted that he was properly translated to the first increment level as at 1 January 1989 and that he had advanced to the second increment level on 1 March 1990 but sought to have his salary increased from that level to the third increment level. It was not until the new goal was denied him that the applicant considered a challenge to the decision of 11 September 1989.
The motion for an extension of time within whlch to commence proceedings in respect of the decisions identlf ied in
the application filed on 15 June 1992 is dismissed. That
application is also dismissed. The applicant must pay the respondent's costs of the motlon and of the application flled on 15 June 1992.

I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

g d ~ - a - As ociate

Dated: 17 July 1992

Counsel for the applicant : Mr G. J. Lunney

Solicitors for the applicant : Snedden Hall & Gallop

Counsel for the respondent : Mr C. Erskine

Solicitor for the respondent : Australian Government

Solicitor

Date of hearing	: 10 July 1992
Date of judgment	: 17 July 1992