Herlihy, Joan Margaret v Minister for Foreign Affairs

[1984] FCA 390

Applicant

.	AND:	MINISTER FOR FOREIGN
AFFAIRS SI ORS

Respondents

EXTEMPORE REASONS FOR JUDGEMENT

CORAM :	WILCOX J,
DATE :	16 NOVEMBER 1984
PLACE :	SYDNEX

There is before the Court an application made under the Administrative Decisions (Judicial Review) Act 1977 whereby the

applicant seeks a review of certain decisions made by the

respondents in relation to her employment at the International

Training Institute at Moaman. conducted by the Australian

Development Assistance Bureau.

The applicant was appointed to the position of lecturer

grade 2 at the Institute for a fixed term. namely, from 30 March

1981 to 30 March 1983: but, according to the letter of

appointment, this was subject to the provisions of 3.82 of the

Public Service Act, which section deals with temporary employees.

It appears that late in the year 1982 contentions arose -

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between various members of the staff at the Institute resulting

.in some incident involving the applicant and Mrs June Wittaker,

who is another member of the staff. It is not necessary, for the

purposes of the present decision. to go into the merits of the

dispute or to attempt to determine who was at fault. However. as

a result of what happened, and possibly as a result of other

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matters as well, a view seems to have been formed by the Principal of the college, Mr L R Heron, the fifth respondent, that it would be in the interests of the Institute if Dr H rlihy did not continue at the Institute after the expiration of her

current term.

.

At that time there were advertisements seekinu

applications for a position - or perhaps more than one position -

at the college which Dr Herlihy was interested in obtaining and

she made application. The evidence indicates that as a result

of the view taken by Mr Heron, her application was not

considered. Subsequently it was decided that Dr Herlihy would

leave the college at the end of the year 1982. There is some

dispute as to the circumstances of that decision a d, in

particular, whether this was the result of a v luntary

resisnation or whether in effect she was forced to leave.

Dr Herlihy complained of the way in which she had been

treated and a number of letters was sent by her to M r Heron and

to other people in authority in relation to the Institute. On at

3.

least three occasions, namely, by letters dated 7 December, 10 -

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December and 28 December 1982, she requested reasons. under s.'13

'of the Administrative Decisions (Judicial Review) Act, for the

various decisions which had been made affecting her. There was a

response in relation to the letter of 10 December from Hr B J

Teasey, Chief Officer of the Department of Foreign Affairs, who

is the sixth respondent. His letter, dated 19 January 1983.

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referred to s.13 in terms indicating his acceptance that the

applicant was entitled to reasons under that section in respect

of her request of 10 December. The letter referred firstly to

the evidence on which he had made his finding - that is, his

finding as announced to Dr Herlihy in a letter of 6 December 1982

that her services should be terminated with effect from 31 .

December 1982 - by saying that the finding was based on the reports of three named persons. Those reports were not made available to Dr Herlihy so that in substance she was told nothing about the evidence upon which the finding was reached. Mr Teasey stated that, as to findings, he considered whether or not the situation of the Institute was such that in effect the running of the Institute was in jeopardy, and he conveyed his opinion, based on the three reports. that the applicant's continued employment

at the Institute had created very strained relationships between

staff members. which affected the work of the Institute. He said

that his reason for his decision was that in a small tightly-knit

organisation like the Institute it was undesirable to have on the

staff a member whose attitude invests the concern and antauonism

that existed at the Institute immediately prior to his decision.

4 .

I emphasise that at this stage I have given no

consideration to the validity of Mr Teasey's conclusion. I have

not seen the material which would enable me to form any view on

that question. No doubt it is correct that in a small

organisation such as the Institute differences between staff can affect the workings of the organisation. However, it seems to me

that the letter does not comply with 3.13 in that it does not -

disclose the,decision-maker's findings on material questions of

fact, referring to the evidence or other material on which those

findings were based. All that was indicated by the letter was

the ultimate conclusion and the factual matter which gave rise to

that conclusion is left undisclosed. No doubt Dr Herlihy would

herself accept that there is a problem if there are strained .

relationships. but I think she was entitled to be told why it was

said that strained relationships were matters tor which she was

responsible and why it was said that the deqree of strain was

such that her immediate termination of employment was necessary.

Subsequently there was a departmental inquiry into the

matter by Mr Osborne, who reported on 3 June 1983 to MC Smith,

the First Secretary, Management Foreign Service Division, of the

Department of Foreign Affairs. Mr Osborne's report contained

findings which were in part favourable to Dr Herlihy. He

expressed the view that she had been unfairly dealt with and

recommended that she should be paid her salary up to the end of

March - that is the remainder of her two year term.

5.

Dr Herlihy has subsequently obtained other employment

and is now employed in the Ombudsman's office in Canberra s a

'senior investigative officer. Notwithstanding that, she

iontinues to feel aggrieved at her treatment at he Institute,

taking the view that this has preludiced her reputation and her

future career as well as having caused her various financial

losses which she would wish to recover.

The Application before the Court seeks inter alia

damages and thus raises a question which does not yet appear to

have been judicially resolved as to whether damages are

recoverable under the Administrative Decisions (Judicial Review)

m.

The matter was put in for hearing today on a limlted

basis. The respondents have taken the view that the application was filed out of time. The applicant did not concede this but

contended that if the application vas out of time then the Court

should exercise its discretion under s.ll(l)(c) of the Act to

extend time. I have in the first instance heard argument on the question of whether the Application is within time. The relevant

decisions in relation to the applicant's departure from the

Institute were made late in 1982 and early in 1983. However,

during a later period of 1983 there were variocrc decisions made

by the respondents in effect reaffirming the earlier decisions.

I see considerable difficulty with the arqunent that those later

decisions were decisions under an enactment so as to attract

I

6 .

review but. for reasons which I will indicate, it is not

necessary to determine that matter.

It does appear to be quite clear that the initial

decisions in December 1982 were decisions under an enactment and

that within the requisite period of 28 days various requests were

made for reasons under s.13. It seems also to be clear that at least until the sending of a letter dated 19 December 1983 there

had not been a compliance with 8.13. It is arguable that the

letter of 19 December was a sufficient compliance but it is not

necessary to determine that matter because the Application was

filed within the requisite period of 28 days' f roa the receipt of the letter of 19 De'cember. It seems to me that once the view is tormed that there was a proper application €or 9.13 reasons

within 28 days of any of the relevant decisions and that no

document complying with s.13 was furnished - or alternatively, an

appropriate notice under s.13(3), an order under s.l3(4A) nr a

notification under s.l3A(3) or s.14(3) was made - until a period

which is less than 28 days from the filing of the application,

then it follows that the application is within time.

It has been contended on behalf of the respondents that s.ll(J)(b)(iii) applies to a case where a 3.13 request has been made but not complied with so as to make the time for the

applicatlon 28 clays from the making of the decision. I do not think that this is the correct construction of that provision. It seems to me that s.11(3) attempts to deal with a number of

7.

alternative contingencies. It may be that the decision itself -

sets out findings on material questions of fact and refers to-the

'evidence and other material on which the findings were based and gives the reasons €or decision - that is, it does all that would

be required under s.13. In that event time runs from the date of

the furnishing of the document setting out the decision because

all the necessary information is then made available. That -

situation is.covered by s.l1(3)(a).

Paragraph (b) then goes on to consider the case to which paragraph (a) does not apply; that is the information is not

furnished as part of the decision. Sub-paragraph (1) deals with

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a case where a statement in writinq setting out the findings,

referring to the evidence or other material and giving the

reasons is furnished, otherwise than in pursuance of a request

under s.13(1). In other words, there could be a sufficient

disclosure of the material which would be requirable under s.13

without there being a formal request. In that event time runs

f r m the day when that statment 19 f l lrnis t ,*d .

Sub-paragraph (ii) deals with a case where there is a

formal request and it makes time to run from the day on which the

statement I s furnished or, alternatively, the date on which the

applicant is notified in accordance with s.13(3) of the

respondent's opinion that the applicant is not entitled to make

a

request or, thirdly, the day on which the court makes an order

under s.l3(4A) declaring that the applicant was not entitled to

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make the request or, finally, the day on which the applicant is

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informed in accordance with S. 13A( 3) or S . 14( 3 ) that a statement

'will not be furnished because of the particular matters which

would be required to be disclosed. This means that time €or

making the application €or review runs from the day of completion

of the S. 13 process.

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Subyparagraph (ill) applies to any other case, that is a

case in relation to which there has been no request for 3.13

reasons. It would make nonsense of the structure of the section

if the decision-maker could refrain from supplying the reasons

under 3 . 1 3 and then use his own default to cause the application

€or review to become out of time. .

In the present case there were a series of applications under s.13 and it is accepted that those applications were

properly made. There was not a satisfaction with the

requirements of 3.13, at least prior to 19 December 1983, and I

think it follows that time did not run against the applicant at

least until that day. That is enough for her purposes because,

calculating from 19 December, her application is within time.

I have therefore come to the conclusion that the

application is within time and, consequently, there is no need to

consider whether this is a proper case for the exercise of a

discretion to extend time pursuant to s.ll(l)(c).

l

9.

I add that Ur Shore has drawn my attention to s.11(4)

which deals with a situation where no period is prescribed for

'the making of applications for orders of review in relation to a

particular decision or, alternatively, in respect of an

application by a particular person for an order of review in

relation to a particular decision. I think it is sufficient for

ne to say that I do not regard this subsection as applying to the

present case: The decisions in the present case are decisions in

relation to which a period is prescribed by subs ( 3 ) . The

question whether the Application is within time is, therefore, to

be determined solely by the terms of that subsection. I hold

that it is within time and I will proceed with the making of

directions for further and better particulars and for the full

statement of the reasons for the various decisions, so as to

ensure that the issues are crystallised before the hearing.

I certify that this and the e'+ +(g>

preceding pages are a true copy of the

Reasnns €or Juduement herein of his Honour

Hr Justice Wilcox.

Associate