Jarosek v Department of Immigration
[2006] FMCA 1048
•28 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAROSEK v DEPARTMENT OF IMMIGRATION | [2006] FMCA 1048 |
| ADMINISTRATIVE LAW – Judicial review – extension of time. |
| Administrative Decisions (Judicial Review) Act 1977, s.11 |
| Comcare v A’Hearn (1993) 45 FCR 441 Dranichnikov v MIMA (2003) HCA 26 Ethnic Affairs (1996) 42 ALD 249 Ferrus v Qantas Airways Limited (2006) FCA 812 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kim Hyun Tai v Bolkus (1996) 42 ALD 249 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Mees v Kemp (2004) FCA 366 MIMIA v Jia [2001] HCA 17 Paramasivam v Grant & Anor (2001) FCA 758 Phillips v Australian Girls Choir (2001) FMCA 109 Re Refugee Review Tribunal: Ex Parte Aala [2000] 75 ALJR 52 Roberts v Repatriation Commission (2004) FMCA 926 Webster v Lampard (1993) 177 CLR 598 |
| Applicant: | STEPHEN LASZLO JAROSEK |
| Respondent: | DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | PEG79 of 2005 |
| Judgment of: | Walters FM |
| Hearing date: | 16 September 2005 |
| Date of Last Submission: | 16 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2006 |
REPRESENTATION
| Applicant: | Mr S. L. Jarosek |
| Counsel for the Respondent: | Mr P. R. Macliver |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The Applicant’s application for extension of time to lodge his substantive application under s.11 of the Administrative Decisions (Judicial Review) Act be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG79 of 2005
| STEPHEN LASZLO JAROSEK |
Applicant
And
| DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
Mr Jarosek is, and at all material times has been, employed by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”). Certain complaints were made about his behaviour towards other DIMIA employees (in the work environment) in or about September 2001. The complaints were investigated and dealt with by departmental officers.
Mr Jarosek has raised many objections to the manner in which the complaints were dealt with. He has had much to say and write about the validity of the original complaints, and about alleged breaches of procedural fairness in the manner in which the complaints were handled by his employer.
Mr Jarosek filed an application in this Court on 14 April 2005. In the application, he sought – in effect – a review of a decision that had been made on 11 September 2003. The decision that Mr Jarosek sought to review was a decision of Mr O’Callaghan, who was the assistant secretary of the human resources management branch of DIMIA. Mr O’Callaghan’s decision (“the Decision”) was to accept certain findings and recommendations contained in (or referred to in) a letter dated
21 May 2003 from a delegate of the Merit Protection Commissioner. The delegate’s name was Dr Rush.
Amongst the recommendations accepted by Mr O’Callaghan in the Decision were the following:
a)that Mr Jarosek be provided with appropriate training to improve his performance in the areas of organising, interpersonal, teamwork and communication skills;
b)that the Department consider the value to Mr Jarosek of his undertaking a course in behaviour in accordance with the APS Values and the Code of Conduct; and
c)that the Department discuss with Mr Jarosek the value to him (and the Department) of his participation in some sort of personal insight and awareness training.
Pursuant to s.11 of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”), Mr Jarosek had 28 days from the date upon which he was furnished with Decision to lodge his application for review. In other words, he should have lodged his application for review in this court by no later than 16 October 2003 or thereabouts.
But Mr Jarosek did not lodge his application with this Court until
14 April 2005 – some 18 months out of time.
Mr Jarosek now seeks an extension of time within which to bring his application.
Background facts and information
I accept the following statement of background facts and information, as contained in paragraphs 1 to 20 (inclusive) of the written submissions prepared by Mr Macliver on behalf of the Respondent (“the Respondent’s Submissions”):
Factual and Procedural Background1.Mr Jarosek is employed by the Commonwealth as an APS3 officer in the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”).
2.On 14 April 2005 Mr Jarosek filed in the Federal Magistrates Court of Australia an application under the ADJR Act.
3.By his application Mr Jarosek sought:
“1. To quash the decision by the Head of Agency (Mr Jim O’Callaghan as delegate on behalf of Mr Bill Farmer, Secretary of DIMIA) in having accepted the recommendations of the Merit Protection Commissioner (Dr Martin Rush as delegate).”
4.Mr Jarosek subsequently filed amended applications dated 15 April 2005 and 18 April 2005 in which he also sought compensation and that he be granted an extension of time within which to bring his application.
5.One of Mr Jarosek’s roles as an APS3 officer was to act as a Taskforce Support Officer to DIMIA’s Boat Taskforces responsible for the further interviewing of unlawful non‑citizens arriving by boat. Mr Jarosek was the Taskforce Support Officer on Boat Taskforce 95 at Woomera between 30 July and August 2001, and on Boat Taskforce 102 at Curtin (Derby) from 7 September 2001, and also for Boat Taskforce 108 at Woomera between 19 and 28 September 2001…
6.On 11 September 2001 Mr Jarosek’s supervisor, Mr Michael Cain, received an email from DIMIA officer Ms Diana Castelo complaining about Mr Jarosek’s alleged rude behaviour on 7 September 2001 at Curtin. Another DIMIA officer, Mr David Ohlmus, telephoned Mr Cain on that same day to discuss Mr Jarosek’s behaviour.
7.On 25 and 27 September 2001 the Team Leader of Boat Taskforce 108, Ms Jennie Robinson, made complaints about Mr Jarosek to Mr Cain. Also on 25 September 2001, the Case Managers of Boat Taskforce 102, Mr P Gatto and Mr V Tysoe, informed Mr Cain that Mr Jarosek did not provide the required support to the Taskforce, and that they would not wish to work with him again…
8.During the period 26 September 2001 to 3 October 2001 Mr Cain counselled Mr Jarosek in relation to complaints about his work.
9.On 4 October 2001 Mr Jarosek emailed Mr Cain advising him of concerns that, what he alleged were unfair criticisms levelled against him, may in some way be related to his anti‑feminist views. He requested that any criticisms of him by Ms Robinson be in writing. On the same date he also requested Mr Cain to provide him with an opportunity to respond to the criticisms levelled against him following Boat Taskforce 102…
10.Ms Robinson provided her written complaints about Mr Jarosek to Mr Cain on 5 October 2001. On 8 October 2001 Mr Cain advised Mr Jarosek by email that he was removing him from Boat Taskforce duties. Mr Jarosek responded to Mr Cain that he would provide a response to the criticisms of Ms Robinson, Mr Tysoe and Mr Gatto, but that he did not expect to be returned to Boat Taskforce work as he was not cut out for it. On 18 October 2001 Mr V Tysoe submitted written complaints on behalf of himself and Mr Gatto regarding Mr Jarosek, a copy of which was supplied to him by Mr Cain...
11.Mr Jarosek provided his formal responses to the complaints by Ms Robinson and Mr Tysoe and Mr Gatto on 29 October 2001 and 1 November 2001…
12.On 17 December 2001, Mr Jarosek wrote to Mr T Johnson (who had taken over Mr Cain’s role) and gave his views on the complaints against him and the treatment of them by management. On 24 January 2002 he again wrote to Mr Johnson and informed him that he did not consider that there was anything of substance in the written complaints against him by Ms Robinson and Mr Gatto, and he therefore regarded it as inappropriate that he had been removed from Boat Taskforce duty…
Request for review of action
13.On 5 March 2002 Mr Jarosek submitted two requests for review of action. His first request was in relation to complaints that he had received about his performance. Mr Jarosek claimed that due process in accordance with APS Values and Code of Conduct had not been followed. The second request related to the withdrawal of his job application on account of the negative impact of the complaints on his referee report, which he claimed was submitted without him being given the opportunity to read it…
14.On 20 March 2002 Mr Ian Flack was appointed to investigate a review of actions pursuant to regulation 5.27 of the Public Service Regulations…
15.Mr Ian Flack duly carried out his investigation and provided DIMIA with a Report dated 6 May 2002. In relation to Mr Jarosek’s first request for review of action, Mr Flack concluded that the process followed by Mr Cain was flawed, and he recommended that the Department should arrange for an investigation into, and a determination of, the validity of the complaints against Mr Jarosek in relation to Boat Taskforces 102 and 108. In relation to Mr Jarosek’s second request, Mr Flack found that he had not been denied due process, and he recommended the Department should take no further action in this matter…
16.On 12 June 2002 the Department’s Assistant Secretary Personnel Branch, Mr Jim O’Callaghan, wrote to Mr Jarosek in relation to Mr Flack’s Report and recommendations. In relation to the first complaint, Mr O’Callaghan accepted Mr Flack’s findings that Mr Cain did not follow procedural fairness processes when dealing with the complaints raised against him and in removing him from Boat Taskforce duties. In relation to Mr Flack’s recommendation that the Department investigate the validity of the complaints made against Mr Jarosek, Mr O’Callaghan stated that he partially accepted this recommendation, and although he was not satisfied that there was anything to be gained from a wide ranging review, he considered it important that Mr Jarosek have an opportunity to present his views at the most senior level. Mr O’Callaghan advised that he had written to DIMIA’s State Director, Mr Alvarez, informing him that any comments which Mr Jarosek might wish to make in relation to the validity of the complaints against him should be made directly to Mr Alvarez, and that Mr Alvarez could respond as he saw appropriate. Mr O’Callaghan accepted Mr Flack’s recommendation in relation to the second matter that no further action be taken...
Request to the Merit Protection Commissioner for review of action
17.By an application dated 3 December 2002, Mr Jarosek made an application to the Merit Protection Commissioner for secondary review of reviewable action. The two actions sought to be reviewed were stated to be:
“1) Behavioural/communications issues ‑ The finding in Ian Flack’s report and cover letter by the Assistant Secretary, that I have behaviour or communication issues that require remedy, should be reviewed. If anything … corrected.
“2) Harassment ‑ There was no basis for the complaints made against me during my time on Onshore Protection. These complaints were unfounded, with motivations coming from beyond workplace responsibilities. As such, they constitute a programme of harassment that was unrelated to my workplace performance.”…
18.The secondary review of Mr Jarosek’s nominated actions was conducted by Dr Martin Rush, a delegate of the Merit Protection Commissioner. Dr Rush was assisted in the conduct of his review by a detailed investigation carried out by his nominated investigator, Ms Di Gilbert. Dr Rush provided a draft report to Mr Jarosek on 13 May 2003 and subsequently met with Mr Jarosek on 15 May 2003. Mr Jarosek sent two emails to Dr Rush on 16 and 19 May 2003, the latter indicating that he wished to maintain his complaint in its entirety…
19.Dr Rush considered that Mr Jarosek’s reference in his application for secondary review to views that he has “behavioural or communication issues that require remedy” and to the behaviour of the officers concerned as “harassment”, were alternate ways of expressing Mr Jarosek’s concerns raised in his primary review application. As a consequence, Dr Rush considered that the secondary review would “again revisit the actions that led to the primary review, whilst noting [Mr Jarosek’s] new description of those actions.”…
20.Dr Rush’s final Report dated 21 May 2003 was provided to Mr Jarosek and to DIMIA. In relation to the actions taken by officers relating to Mr Jarosek’s performance and behaviour, Dr Rush concluded that the investigation indicated that the grounds for those officers taking those actions fully supported such action. Dr Rush concluded his report with the following recommendation:
“It is therefore RECOMMENDED that DIMIA further supplement the Delegate’s decision in the original review by providing [Mr Jarosek] with appropriate training to improve his performance in the areas of organising, interpersonal, team work and communication skills, and in behaviour in accordance with the APS Code of Conduct. This programme of training should be implemented in accordance with DIMIA policy, including its PALS process.”…
I also accept the summary of the relevant “statutory framework” contained in paragraphs 22 to 28 (inclusive) of the Respondent’s Submissions. Having regard to the manner in which Mr Jarosek’s application was presented to this Court, however, there is no need for me to reproduce those paragraphs.
It is important to note that Mr Jarosek made it clear that he accepts and has no discomfort with the report by Mr Flack dated 16 May 2002. Mr Jarosek said that there is “nothing wrong with the Flack report”.
Extension of time – relevant principles
It was not in dispute that the appropriate principles to be applied when determining whether or not to extend the time for the making of an application for review pursuant to s.11 of the ADJR Act are those summarised by Wilcox J. in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles are as follows:
(a)Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the Court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time…[1]
(b)Action taken by the applicant, other than by making an application for review under (the ADJR Act), is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of the person who, by non-curial means, has continued to make the decision maker aware that his contests the finality of the decision … and a case where the decision maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the “need for finality in disputes” … but also the “fading from memory” problem …
(c)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension …
(d)However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude …. A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …
(f)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion …
[1] See discussion of this suggested “pre-condition” below.
It should be noted that his Honour’s view to the effect that an acceptable explanation for the delay is to be regarded as a pre-condition to the exercise of discretion in an applicant’s favour is no longer good law. In Comcare v A’Hearn (1993) 45 FCR 441, the Full Court said:[2]
Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition.
[2] At page 444.
The strength or otherwise of any explanation proffered will be a relevant matter to be considered by the Court in determining whether or not to allow an extension of time. Similarly, an applicant’s failure to provide any explanation at all would also be relevant.[3]
[3] See Kim Hyun Tai v Bolkus (1996) 42 ALD 249.
I propose to apply the principles laid down in the Hunter Valley case, as modified by Comcare v A’Hearn.[4]
[4] See, for example, Mees v Kemp (2004) FCA 366, Phillips v Australian Girls Choir (2001) FMCA 109, Roberts v Repatriation Commission (2004) FMCA 926 and Ferrus v Qantas Airways Limited (2006) FCA 812.
I now turn to consider those factors or principles.
Explanation for delay
The issue of delay was first dealt with in one of Mr Jarosek’s affidavits sworn on 15 April 2005. The affidavit is number 5 on the Court file. Annexure 3 to the affidavit is headed “Supporting Statement Requesting Extension of Time”.
In the “Supporting Statement”, Mr Jarosek wrote:
While the denial of natural justice seemed evident in the original report by the investigator, I wanted access to the investigator’s documents in order to establish whether or not there were facts “behind the scenes” that might be interpreted as support for the investigator’s findings. And so I sought access to them though the FOI Act, by lodging an application with the AAT.
Mr Jarosek continued:
As I am not a legal practitioner, the prospect of going to Court in the absence of all the evidence was intimidating. The prospect of the Respondent pulling a rabbit out of the hat and declaring that other documents to which I did not have access support the investigator’s findings concerned me. I had originally prepared my application well within the required time limits and proceeded to make the submission. However, upon going to the Federal Court to tender my application, I changed my mind. I did not feel comfortable lodging the application on these terms and felt that I really must wait until my FOI appeal has run its course. (Emphasis added)
It is clear from the above that Mr Jarosek was aware of his right to apply for review under the ADJR Act, and that he was of the view – at all relevant times – that a breach (or breaches) of the rules of procedural fairness had occurred.
Mr Macliver submitted, and I accept, that “ … this is not a case where the ground of review of denial of natural justice, or any of the other grounds of review raised by (Mr Jarosek), only emerged after (Mr Jarosek) was given access to all of the documents which he had requested (under the FOI Act).”
Mr Jarosek dealt with his explanation for the 18 month delay in filing his application on pages 17 and 18 of his written outline of submissions filed 29 July 2005 (“Mr Jarosek’s Submissions”). Three reasons were provided for the relevant delay:
a)the need to access relevant documents through the FOI Act;
b)the fact that other steps had been taken “to resolve (Mr Jarosek’s) issues”; and
c)the existence of “new evidence”.
Mr Jarosek referred to advice that he had received to the effect that his case was “without merit”. He did so in the course of advancing the first and second of the reasons given in explanation of the delay. I note, however, that the receipt of that advice, and its effect, was not raised by Mr Jarosek in his original explanation for the delay (as contained in his affidavit sworn on 15 April 2005[5]).
[5] Being document 5 on the Court file.
I have read the documents referred to at items 1 and 2 under the heading “My Justification for the Delay” in Mr Jarosek’s Submissions. In my opinion, none of the documents, and nothing in Mr Jarosek’s Submissions, serves to adequately explain the delay of some 18 months. Further, having seen and heard Mr Jarosek in court, and having read the enormous volume of paperwork that he has generated, I am not at all persuaded that Mr Jarosek was intimidated by the prospect of going to Court – whether in the absence of evidence or otherwise.
The fact that Mr Jarosek may have seen fit to take other steps “to resolve (his) issues” is of little relevance. Mr Jarosek was clearly of the view that he had a prima facie case for judicial review when he “… originally prepared (his) application well within the required time limits”. For reasons that are less than clear, he changed his mind “ … upon going to the Federal Court”.
It is clear that the “other steps taken” by Mr Jarosek between September or October 2003 and April 2005 were independent of his claim for relief under the ADJR Act.
Under the heading “New Evidence”, Mr Jarosek wrote that he “stumbled across the phenomenon of workplace mobbing in around November of 2004”. In relation to Mr Jarosek’s argument regarding this factor, I would record the following:
a)The fact that Mr Jarosek may now be able to give certain alleged behaviour “a name and a face” is clearly irrelevant to the merits of his application pursuant to s.11 of the ADJR Act.
b)In any event, Mr Jarosek does not appear to have explained why it took him from November 2004 to April 2005 to absorb the “phenomenon of workplace mobbing” into the overall context of his ADJR Act application.
In my opinion, the delay of approximately 12 months is inadequately explained. The delay itself is inordinate. Mr Jarosek decided (consciously) not to file his application under the ADJR Act within time. That he may have been of the opinion that his case could become easier to argue at some time in the future may help to explain – but does not justify – the delay. The same can be said of the other “reasons” that he relied upon.
Mr Jarosek’s attempted explanation for the delay is unpersuasive. Nevertheless, that fact does not – in itself – lead to a conclusion that his application for an extension of time should automatically be disallowed.
Actions taken by the Applicant
Mr Macliver submitted, and I accept, that Mr Jarosek took no direct steps to make the decision maker (Mr O’Callaghan) and DIMIA aware that the finality of the Decision remained in dispute. That Mr Jarosek sought documents pursuant to the FOI Act does not assist this aspect of his case. After all, there are many reasons why an applicant might seek access to documents under the FOI Act.
Indeed, Mr Jarosek’s request for access to documents under the FOI Act was first made on 5 June 2003, some 3 months before the Decision was communicated to him[6]. Further, none of the documents attached to Mr Jarosek’s many affidavits appear to state that the purpose (or one of the purposes) of the FOI request was to facilitate or aid in a proposed review of the Decision under the ADJR Act.[7]
[6] See annexure 10 to Mr Jarosek’s affidavit sworn 2 June 2005.
[7] See, for example, annexures 11 to 18 to Mr Jarosek’s affidavit sworn 2 June 2005.
I accept, as well, that Mr Jarosek could have advised Mr O’Callaghan or DIMIA that he proposed to seek judicial review of the relevant decision after he had been given the opportunity to inspect the documents to which he had sought access under the FOI Act. He did not take that step.
I accept that Mr Jarosek informed the Merit Protection Commissioner that he had serious concerns regarding “the Gilbert report” and that, in his view, it should be rejected as “flawed”, “biased” and otherwise deficient[8]. But the Merit Protection Commissioner was not the relevant decision maker for the purpose of any attack upon the validity of the Decision under the ADJR Act.
[8] See, for example Mr Jarosek’s letter dated 7 October 2004 to the Merit Protection Commissioner (being annexure 3 to Mr Jarosek’s affidavit sworn 23 June 2005).
Mr Jarosek argued that judicial review should properly be regarded as a last resort, and that it was reasonable for him to establish that his case had merit in circumstances where he had been told by others (including legal representatives) that it was without merit. Even if I accept that the application for inspection of documents under the FOI Act was for the purpose of assisting Mr Jarosek to ascertain whether his proposed application for judicial review might have merit, Mr Jarosek’s apparent failure to make the appropriate decision maker aware that the Decision was contested remains unexplained.
It is clear that this principle or factor focuses on an applicant’s action (or, more accurately, inaction) from the point of view of the decision maker. Irrespective of what might have been in Mr Jarosek’s mind, and irrespective of the things that he may have done in furtherance of an action that he may or may not have eventually concluded had sufficient merit to warrant commencing, the decision maker was not made aware that the finality of the Decision remained in contest.
Prejudice to the Respondent
Under the heading “No Prejudice to the Respondent” in Mr Jarosek’s Submissions, he argued that “ … because DIMIA was aware from the very beginning that I did not accept the recommendations of the Merit Protection Commissioner (and DIMIA’s decision to accept them), they have always been in a position to anticipate appropriate steps and responses”. As I have discussed under the heading “Actions taken by the Applicant” above, however, it appears that Mr Jarosek did not make Mr O’Callaghan and DIMIA aware that he was not prepared to accept the Decision. It does not appear that any of the documents referred to in Mr Jarosek’s Submissions support his contention that DIMIA was aware “from the very beginning” that the Decision was and would remain contested.[9]
[9] Indeed, some documents, such as the email dated 8 March 2005 from Mr Jarosek to Bill Farmer (being the last attachment to Mr Jarosek’s affidavit sworn 28 July 2005), imply that the validity of the Decision is not in dispute.
Under the general heading of “No Prejudice to the Respondent”, Mr Jarosek has also raised certain arguments relating to an alleged “reluctance by DIMIA to comply with lawful decision making with respect to (his) issues” and alleged “systemic problems in DIMIA”. In my opinion, none of the matters raised by Mr Jarosek under these headings are of relevance to this issue.
Mr Jarosek argued – in relation to various events following the filing of his application in this Court in April 2005 – that “ … it would be prejudicial to (DIMIA) if (his) application for judicial review was not heard”. He submitted that “ … bringing to light the systemic problems within DIMIA can only benefit the Respondent, not prejudice it”.
Mr Macliver argued that, having regard to the very substantial delay in the present case (being some 18 months), the Respondent “ … must inevitably suffer prejudice by reason of the memories of those involved having faded over time”. Further, the decision the subject of the present application relates to events which occurred in September or October 2001.
In response, Mr Jarosek argued that “reliance on memory is not so important” and that the issues raised in his application are essentially “questions of law”.
Although it is true that the core of Mr Jarosek’s complaint relates to an alleged denial of procedural fairness, perusal of the vast quantity of documents and prolix submissions (usually attached to affidavits) provided by Mr Jarosek reveals that Mr Jarosek himself seems incapable of drawing distinctions between questions of law (in the strict sense) and the factual matrices surrounding the original complaints made against him in late 2001, the various investigations which followed the making of those complaints, the Flack Review from May 2002, the Merit Protection Commissioner’s report / review from May 2003, and events involving Mr Jarosek which occurred well after the making of the Decision. Mr Jarosek’s documents reveal a scattergun approach to the current proceedings, and an unwillingness or inability to focus clearly on issues that are likely to be of relevance to the determination of the substantive application for judicial review. The disorganised nature of Mr Jarosek’s case, and his obvious unwillingness to discard arguments or grievances that have no relevance to the current proceedings, lead me to conclude that Mr Macliver’s submission to the effect that the Respondent is likely to suffer prejudice if the extension of time sought by Mr Jarosek is granted has considerable merit.
At the very least, the granting of the extension sought by Mr Jarosek will result in various departmental officers spending a great many hours trying to make sense of (let alone attempting to respond to) Mr Jarosek’s chaotic submissions. Put shortly, I have no doubt that those hours could be better spent in the public interest.
Further to the above, I note that the orders sought by Mr Jarosek in his (re-amended) application filed 18 April 2005 are as follows:
(1)To quash the decision by the head of the agency (Mr Jim O’Callaghan as delegate on behalf of Mr Bill Farmer, Secretary of DIMIA) in having accepted the recommendations of the Merit Protection Commissioner (Dr Martin Rush as delegate).
(2)To be compensated as appropriate on account of defective administration – I was denied a promotion to the APS 4 level, ostensibly on the basis of the recommendations of the Merit Protection Commissioner (MPC).
(3)To be granted an extension of time, on account of: (a) new evidence – access through FOI and AAT to investigate documents; (b) new evidence – information on mobbing; (c) DIMIA continues to use MPC recommendations, to justify decisions against me.
It is immediately apparent from the breadth of the above claimed relief that the issues for determination (should an extension of time be granted) are likely to be beyond simple (or even complex) questions of law. For the reasons that I have already expressed, it is my view that the Respondent will indeed suffer prejudice if the extension of time sought by Mr Jarosek were to be granted.
Mere Absence of Prejudice
Clearly, the court is not obliged to grant an extension of time simply because the Respondent would suffer no prejudice as a result. My discussion in relation to the previous principle or consideration, however, reveals that I am of the view that the Respondent will inevitably suffer prejudice if the extension is granted.
As is made clear in paragraph 21(d) of the Hunter Valley case, however, even if I am wrong in concluding that the Respondent will suffer prejudice by reason of the extension being granted, that fact alone is not sufficient to warrant the granting of an extension of time.
Merits of the Substantive Application
Notwithstanding (or perhaps because of) the large volume of material presented by Mr Jarosek, it is extremely difficult to identify the core elements of the grounds relied upon in support of his application for review of the Decision. Some guidance is provided by Mr Jarosek in his Submissions, under the heading “The Questions Involved in the Case”. The relevant questions (from Mr Jarosek’s point of view) appear to be as follows:
a)issues of procedural fairness relating to the Decision (see the heading “The Decision by the Head of DIMIA”);
b)an allegation of apprehended bias (see under the heading “Investigation Conducted by Merit Protection Commissioner – Apprehended Bias”);
c)issues relating to procedural fairness (relevantly, the right to be heard) in relation to the Merit Protection Commissioner’s report (see under the heading “Investigation Conducted by Merit Protection Commissioner – the Right to be Heard (Procedural Fairness)”); and
d)issues relating to excessive authority and/or harassment (see under the heading “Exceeding Authority to Investigate”.
The Decision was conveyed to Mr Jarosek in a letter from Mr O’Callaghan dated 11 September 2003. The letter is brief, and contains the following:
I am writing to inform you that Mr Martin Rush, delegate of the Merit Protection Commissioner, has completed his review on your secondary review application dated 3 December 2002 and received in the WA office of the Commission on 6 January 2003.
I have considered Mr Rush’s report and am satisfied (that) a thorough investigation has been undertaken through revisiting “the actions that lead to the primary review” and accept his findings and recommendations.
I understand that Mr Rush has sent you a copy of his report and that Mr Jose Alvarez, WA State Director, has provided feed-back to you on the department’s response.
A chronology of some of the events leading up to Mr O’Callaghan’s letter is relevant:
3 December, 2002
Mr Jarosek lodges “Appeal for Secondary Review” with Merit Protection Commissioner. The request is lengthy and detailed.[10]
13 May, 2003
Merit Protection Commissioner provides draft report (prepared by Ms D. Gilbert) to Mr Jarosek by email.[11]
15 May, 2003
Mr Jarosek meets with Dr Rush (delegate of the Merit Protection Commissioner). Mr Jarosek has clearly received Ms Gilbert’s draft report by this time.[12]
16 May, 2003
Mr Jarosek forwards email to Dr Rush.[13]
19 May, 2003
Mr Jarosek sends further email to Dr Rush.[14]
20 May, 2003
Mr Jarosek meets with Ms Gilbert in relation to the review and “(his) allegations”. According to Mr Jarosek “ … during this meeting (he) promised to follow up with a brief email on some minor detail, which (he recalls) doing on either on the same day or very soon afterwards”.[15]
21 May, 2003
Dr Rush provides concluded report to Mr Jarosek noting that he is “ … sorry the report and letter will not satisfy you at this time, given the content of the last two emails”.[16]
27 May, 2003
Mr Jarosek forwards very detailed response to Rush / Gilbert report[17].
11 September, 2003
Mr Jarosek receives formal notification from Mr O’Callaghan of DIMIA’s decision to accept the Merit Protection Commissioner’s findings and recommendations. According to Mr Jarosek, he only received the letter from Mr O’Callaghan “ … after considerable delay and prompting from (Mr Jarosek)”[18]
[10] See pages 14 to 26 of the affidavit of Peter John Corbould sworn 16 June 2005.
[11] See annexure 4 to Mr Jarosek’s affidavit sworn 18 April 2005 – being the letter from the Merit Protection Commissioner to Mr Jarosek dated 21 May 2003.
[12] See Mr Jarosek’s chronology on page 21 of his Outline of Submissions and the letter from Dr Rush to Mr Jarosek dated 21 May 2003.
[13] See Dr Rush’s letter to Mr Jarosek dated 21 May 2003.
[14] See Dr Rush’s letter to Mr Jarosek dated 21 May 2003.
[15] See page 5 of Mr Jarosek’s Outline of Submissions and page 39 of Mr Corbould’s affidavit sworn 16 June 2005.
[16] See Mr Jarosek’s chronology on page 21 of his Outline of Submissions and the letter from Dr Rush to Mr Jarosek dated 21 May 2003.
[17] See pages 32-43 of Mr Corbould’s affidavit sworn 16 June 2005
[18] See pages 6 and 21 of Mr Jarosek’s Outline of Submissions and annexure 1 to Mr Jarosek’s affidavit sworn 18 April 2005.
Mr Macliver argued, and I accept, that the above chronology reveals that Mr Jarosek “ … had every opportunity to raise additional matters either with Dr Rush and/or Mr O’Callaghan before Mr O’Callaghan made his decision”.
There is no evidence that any of the submissions or material provided by Mr Jarosek were ignored by any of Ms Gilbert, Dr Rush or Mr O’Callaghan.
I have read the documents provided to the court by Mr Jarosek (and those provided by the Respondent) carefully. In particular, I have read Mr Jarosek’s Submissions, his response to the report from the Office of the Merit Protection Commissioner (dated 27 May, 2003) and the 14 page document headed “Judicial Review” attached to Mr Jarosek’s affidavit sworn 14 April, 2005. In my opinion, there is little merit in Mr Jarosek’s substantive application for review under the ADJR Act. That is not to say that his claims are unarguable or “almost incontestably bad”.[19] But, if the matter were to go to trial in the ordinary way, then Mr Jarosek’s application would certainly fail.[20]
[19] See, for example, McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 at 415-7
[20] See, for example, Paramasivam v Grant & Anor (2001) FCA 758, applying Webster v Lampard (1993) 177 CLR 598.
To the extent that Mr Jarosek may have argued that there was a denial of procedural fairness resulting from Mr O’Callaghan’s perceived failure or refusal to deal with the matters contained in Mr Jarosek’s response to the Rush / Gilbert report dated 27 May 2003, I am not persuaded by such a submission. Whilst a failure to respond to “a substantial, clearly articulated argument relying upon established facts” is likely to amount to a breach of the rules of natural justice,[21] I am not persuaded that Mr Jarosek’s response dated 27 May 2003 amounted to a “substantial, clearly articulated argument relying on established facts”. The response certainly contained argument, but it did not rely upon “established facts”. Nor, it is fair to say, was it “clearly articulated”.
[21] See Dranichnikov v MIMA (2003) HCA 26 at 24
Indeed, having regard to the lengthy and detailed submissions crafted by Mr Jarosek at various times since the events of late 2001, and to Mr Jarosek’s apparent determination to “argue the toss” over the findings and recommendations in the Rush / Gilbert report, Mr O’Callaghan’s actions in phrasing his decision to accept the findings and recommendations contained in the Rush / Gilbert report as briefly, and in as confined terms, as possible was readily understandable.
Even if I am wrong in concluding that Mr Jarosek’s substantive application has little merit, the fact of the matter is that this consideration is but one of a number of considerations that the Court must take into account in determining whether or not to allow the extension of time sought by Mr Jarosek.
Additional grounds of review
This subject is dealt with in paragraphs 41 to 45 inclusive of the Respondent’s Submissions. It relates to grounds contained in Mr Jarosek’s affidavit sworn 9 May 2005.
To the extent that it is possible to understand Mr Jarosek’s submissions in relation to these grounds (as contained in his affidavit), I find that they are without merit. I accept and adopt the Respondent’s Submissions as contained in paragraphs 41 to 45 of the Outline. I would add that Mr Jarosek did not seek to respond (or did not seek to respond in any detail) to these paragraphs of Mr Macliver’s submissions when the matter was heard before me.
Reasons for the Decision
I accept Mr Macliver’s submission to the effect that Mr O’Callaghan’s letter dated 11 September 2003 did indeed set out the reasons for the Decision. Mr O’Callaghan indicated that he had considered the Rush / Gilbert report, and was satisfied that a thorough investigation had been undertaken. He accepted the findings and recommendations contained within the report, and in Dr Rush’s supporting letter.
I have already commented that, given Mr Jarosek’s approach to the matter to that date, it was both understandable and appropriate for Mr O’Callaghan to adopt the approach that he did.
I do not accept that Mr O’Callaghan’s acceptance of the Rush / Gilbert report and recommendations was “ … logically inconsistent with (Mr O’Callaghan’s) prior acceptance of Ian Flack’s recommendations in the primary review”. Nor do I accept (for reasons set out above) that Mr Jarosek was not provided with an opportunity “ … to respond to any allegations or findings at any stage of the secondary review”.
Apprehended bias
Contained within the duty of procedural fairness is the requirement that there be an absence of the actuality or the appearance of disqualifying bias.[22] In Re Refugee Review Tribunal: Ex Parte H [2001] 179 ALR 425, the High Court said (ignoring footnotes):[23]
27.The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28.Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
29.Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
30.Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
31.Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[22] See Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 at 367 and Refugee Review Tribunal: Ex Parte Aala [2000] 75 ALJR 52.
[23] See pp 434 – 5.
In a section headed “Establishing Bias: Facts, Apprehensions, Risks and Perspectives”,[24] the authors of Judicial Review of Administrative Action[25] wrote (at page 605):
In most cases the test is premised on assumptions. Irrespective whether bias is alleged before or after a decision, the question is normally decided considering whether the alleged source of bias “could” or “might have” might affect (sic) a decision-maker’s objectivity, rather than whether it “will” or “actually did”. Webb v R [1994] 181 CLR 41 and Ebner v Official Trustee [2000] 205 CLR 337 established for Australia that the test is to be framed not in terms of proving (in diminishing severity) actual bias, or a “real danger”, “substantial likelihood”, “real likelihood” or “probability” of bias, but in terms of proving a “reasonable apprehension” of bias. The question is “one of possibility” (real and not remote), not probability.
This reasonable apprehension is one which belongs to a party to the impugned proceedings, or to the general public. Either way, the person entertaining the apprehension must be acting reasonably and is taken to have a considerable level of information about the relevant circumstances, but no knowledge of the personal characteristics of the decision-maker. Completely unfair or irrational apprehensions do not count. The hypothetical person is objective and reasonable, and will give the issue some thought rather than make a snap judgment.
[24] Being Section 12 of Chapter 9: The Rule Against Bias.
[25] Judicial Review of Administrative Action by Aronson, Dyer and Groves, 3rd edition [2004].
It is clear from the decision of the High Court in MIMIA v Jia [2001] HCA 17, that a party asserting actual bias on the part of a decision-maker bears a heavy onus. Such an assertion or allegation must be “distinctly made and clearly proved”.[26] Bias in the form of pre-judgment occurs where the decision-maker’s mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[27] Put another way, the question is whether the decision-maker’s mind is open to persuasion.
[26] Per Gleeson CJ and Gummo J at [69] and Kirby J at [127].
[27] Per Gleeson CJ and Gummo J at [71] – [72].
In my opinion, there is nothing in the material relied upon by Mr Jarosek (including, in particular, the submission headed “Apprehension of Bias” attached to his affidavit filed 16 May 2005) which would give rise to an objective possibility of the type of bias (or apprehended bias) described by the High Court in Re: Refugee Tribunal: Ex parte H. I am of the view that a hypothetical fair-minded lay person (who is properly informed as to the nature of the proceedings, the matters in issue and all other aspects of the conduct which is said to give rise to an apprehension of bias) could not reasonably apprehend that Dr Rush or Ms Gilbert might not have bought an impartial mind to the resolution of the question which they were required to determine. At the end of the day, of course, their task was to investigate matters and to prepare an appropriate report. The substantive decision (and the decision which forms the subject of the current proceedings) is that of Mr O’Callaghan. Mr Jarosek does not allege bias (or apprehended bias) on his part.
The intermingling of personnel in the manner complained of by Mr Jarosek cannot – in itself – give rise to an apprehension of bias such as to amount to an infringement of the duty of procedural fairness. The reality is that there was neither the actuality nor the appearance of disqualifying bias. I make no comment upon the subject of apprehended bias as it might apply to decisions made or behaviour of departmental or other officers in relation to jobs for which Mr Jarosek may have applied. But the attribution of the relevant objective possibility cannot (in my opinion) operate in reverse. In other words, simply because certain officers were involved in job selection processes which affected Mr Jarosek, it does not automatically follow that disqualifying bias adheres to those officers in the context of the performance of an entirely different task associated with Mr Jarosek’s employment. Indeed, Mr Jarosek has presented no evidence of facts, circumstances or conduct relating to the officers’ performance of their duties in the job selection process which might have caused them to bring something other than an impartial mind to bear upon the resolution of the questions and issues which ultimately formed the subject of the Rush / Gilbert report (or which might give rise to a reasonable apprehension that that might be the case).
Other persons in a like position
According to Wilcox J. in Hunter Valley “ … considerations of fairness as between (an applicant) and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion”. Neither party suggested that this fact or consideration is relevant in the present case.
The public interest
In concluding the Respondent’s submissions, Mr Macliver wrote:
53.In Hunter Valley, his Honour Wilcox J referred to the public interest, and the contrast between those matters which affected only the immediate parties, and other cases where wider considerations are involved (at 349). In particular, his Honour stated:
“… in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay.” (at 350)
54.The present case involves matters of personnel management. The actions in respect of which the applicant sought review and then secondary review occurred in September and October 2001. The delay in bringing this application is approximately 18 months….
I agree with and adopt Mr Macliver’s submission as set out above. In all the circumstances, I am of the view that public interest considerations support the refusal of Mr Jarosek’s application for an extension of time.
Conclusion – Extension of Time
As set out above, I am of the view that the delay in this matter was inordinate, and there was no adequate explanation for it. I am not satisfied that any of the relevant factors or considerations favour a determination to the effect that an extension of time should be granted. Even if Mr Jarosek’s substantive application had been found to have some prima facie merit, I am satisfied that the other considerations outweigh that factor, and that the extension of time that has been sought should not be granted.
I propose to order that Mr Jarosek’s application for an extension of time be dismissed with costs. In that regard, I confirm that I have read Mr Jarosek’s “addendum” to his Submissions (dealing with the “awarding of costs”), but that I am not persuaded that the ordinary rule should not apply in the circumstances of this case. Mr Jarosek has been wholly unsuccessful in his application for an extension of time, and the majority of significant factors relevant to the Court’s discretion in that regard clearly did not favour the outcome that he sought.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of FM Walters.
Deputy Associate: Jacqueline Brodie-Hanns
Date: 28 July 2006
5
11
1