Kumar v Merit Protection Commissioner
[2013] FCCA 650
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MERIT PROTECTION COMMISSIONER & ANOR | [2013] FCCA 650 |
| Catchwords: ADMINISTRATIVE LAW – Extension of time application – internal departmental review – procedural fairness – generality of claims – discussion of what is “conduct” and “decision” – decisions made under the Workplace Relations Act not ‘reviewable’ under the ADJR Act – decisions of an ‘executive or administrative’ kind not made under an ‘enactment’ also not reviewable under the ADJR Act. |
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3(1)-(5), 5, 6, 11, 13, 16, Schedule 1
Public Service Act 1999 (Cth), ss.20, 23(4)(e), 23(5), 57(1)
Workplace Relations Act 1996 (Cth), s.328
Regulations:
Public Service Regulations 1999 (Cth)
| Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian National University v Lewins (1996) 68 FCR 87 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Comcare v A’Hearn (1993) 45 FCR 441 Director-General of Social Services v Chaney (1980) 31 ALR 571 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Edelsten v Health Insurance Commission & ors (1990) 27 FCR 56 Fischer v Commonwealth of Australia (1997) 54 ALD 673 Griffith University v Tang (2005) 221 CLR 99 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Hudson v Australian Telecommunications Corporation (1990) 27 FCR 97 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Northern Territory of Australia v O'Connor & Anor [2003] NTSC 56 O’Halloran v Wood (2003) 75 ALD 446 Perpetual Trustee Co. Ltd v Smith (2010) 186 FCR 566; (2010) 273 ALR 469 |
| Applicant: | MAHEND KUMAR |
| First Respondent: | MERIT PROTECTION COMMISSIONER |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
| File Number: | CAG 11 of 2011 |
| Judgment of: | Judge Neville |
| Hearing dates: | 3 & 4 October 2012 |
| Date of Last Submission: | 31 October 2012 |
| Delivered at: | Canberra |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Self-Represented |
| Solicitor/Advocate for the Second Respondent: | Mr P Vermeesch |
| Solicitors for the Second Respondent: | Australian Government Solicitor, Canberra |
ORDERS
The second further Amended Application (“the Amended Application”) filed on 16th March 2012, and all antecedent applications, be dismissed.
Within 14 days of the date of these orders, the parties are to file written submissions (not exceeding 3 pages) in relation to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 11 of 2011
| MAHEND KUMAR |
Applicant
And
| MERIT PROTECTION COMMISSIONER |
First Respondent
| DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By reference primarily to the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) this is a case by which the Applicant seeks to challenge certain ‘conduct’ and a number of ‘decisions’ by the First and Second Respondents.
The Applicant (Mr Kumar) has been an employee of the Department of Immigration and Citizenship (“the Department”) since 2001. He is qualified in, amongst other things, accountancy. He contends that he has been employed by the Department as an Assistant Director, Finance Policy. That position was ranked or graded for remuneration and other purposes as an Executive Level 1 (“EL 1”). At various times since commencing employment with the Department, Mr Kumar says (which evidence was not challenged at trial) that he has worked at higher levels, such as an EL 2, when, in December 2003, he was selected to act as the Director, Corporate Treasury. He contends that he worked in this position and at this [pay] level from December 2003 until March 2005. He also says that during this period he was “rated” as “fully effective.”[1]
[1] See Mr Kumar’s Second Affidavit, filed 27th March 2012, pars.3-4 and what he describes as ‘annexure 2’ to his bundle of documents. Although those documents are not properly identified (other than by page number), I take Mr Kumar to refer to pages 9-13 of his documents.
Following a lengthy, internal process of review/assessment of his ‘under-performance’, Mr Kumar was demoted in the grade or rank of his employment, from an ‘Executive Level 1’ (EL 1) to an Australian Public Service Level 6 (‘APS 6’). This demotion has occurred, Mr Kumar contends, due to certain conduct and decisions which are tainted, for example and in general terms, (by either or both the Department in its internal procedures and or by the First Respondent) by bias, and or because he was denied procedural fairness, and or because he was not properly advised by the Department.
Indeed, throughout his affidavit and oral evidence Mr Kumar maintained that he had no real choice other than to pursue merits review, and only when that process was concluded could or would he consider seeking judicial review. He maintained that his constant advice from a range of lawyers, and his union representative, was (a) to continue with his merits review process, and (b) that judicial review, as an alternative to merits review under the Public Service Act 1999 and otherwise, was never canvassed with him.[2]
[2] Among many places, see his oral evidence at Transcript (3rd October 2012) pp.26-28 & 32-39. It is as well to note here that Mr Kumar’s oral evidence, in my view, was of quite limited scope and utility in the determination of the issues before the Court, particularly in the light of the large amount of documentary evidence available. Accordingly, his oral evidence is treated only briefly.
The Department opposed all relief sought by the Applicant and says, among other things, that (a) a number of the decisions (and the conduct) complained of are not amenable to review under the ADJR Act (or otherwise), (b) the Application for Review, in so far as it relates to a number of decisions (or conduct) is, to a significant degree, out of time, and (c) the Applicant has not made out any specific ground in relation to any relevant decision or conduct, and which (it says) is amenable to review under the ADJR Act.
While the action of some members of the Department may reasonably be called into question in terms of prudential judgment, but which does not otherwise attract any legal consequence, for the reasons that follow, the Applicant has not made out his entitlement to the relief sought. For the reasons that follow, the Application must be dismissed. I will hear the parties on, and determine the issue of, costs by the provision of written submissions (of no more than 3 pages) within 14 days of the date of these orders.
These reasons proceed as follows: (a) background and decisional history; (b) orders sought and grounds in support; (c) chronology; (d) statutory provisions; (e) evidence relied upon; (f) submissions and discussion; and (g) other matters.
A. Background and ‘Decisional History’
By way of brief summary, the original Application was filed on 23rd March 2011. An Amended Application for an order for review was filed on 2nd August 2011. A [further] Amended Application for an order of Review was filed on 19th October 2011. Finally, [a second further] Amended Application for an order of Review was filed on 16th March 2012.[3] The detailed orders sought by the Applicant are set out later in these reasons.
[3] For the purposes of these reasons, unless otherwise required, any and all references to “the Amended Application” will be taken to be a reference to the final, further Amended Application of Mr Kumar, filed on 16th March 2012.
The First Respondent, the Merit Protection Commissioner, neither consented to nor opposed any of the orders sought by the Applicant, but otherwise did not participate in the proceedings.
Again in summary form, the Second Respondent (“the Department”) opposed the Applicant’s orders sought on the following grounds: (a) all but one of the conduct and/or decisions challenged were not “decisions” or “conduct” for the purposes of the ADJR Act, and/or (b) the decisions complained of were not “decisions” or “conduct” that conformed with the High Court’s decision in Australian Broadcasting Commission v Bond [4] because all but one of them were simply [intermediate] steps that were taken prior, and ultimately led, to a final decision being made to demote the Applicant.
[4] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The Department further opposed the orders sought by the Applicant on the grounds that most of the conduct and decisions challenged are all out of time to a very significant degree (e.g. in some instances by more than three years). The Department also resisted the Applicant’s explanation for delay (and therefore the need for the Applicant to seek leave of the Court to challenge the conduct and decisions out of time) because, although the Applicant contends that he was not properly advised by the Department about rights of review, the Second Respondent says that:
a)the Applicant was properly and appropriately advised of his rights of review and the importance to obtain independent legal advice (the corollary of which is that the Department cannot provide detailed advice (legal or otherwise) to a person in the Applicant’s position),
b)annexed to the affidavit of Ms Karen Labrum (filed 10 February 2012)[5] is significant correspondence between both the First and Second Respondents (separately) with the Applicant, and the Applicant’s responses,
c)in that correspondence, the Department contends that it is plain that Mr Kumar acknowledges the advice from each of the Respondents of the need to obtain independent legal advice, and confirms that, at different times, he was been legally represented (from which, in accordance with the Full Court decision in Fischer v Commonwealth of Australia, the Court may infer that he has received proper legal advice),[6] as well as having the support from, and submissions made by, the Community and Public Sector Union (“CPSU”) on his behalf.
d)the Department also says that the matters set out in paragraphs 6 – 10 of the Amended Application for an Order for Review, are decisions made under a Collective Agreement,[7] which makes them decisions under an instrument under the Workplace Relations Act 1996 (Cth), by virtue of which they come within the terms of Schedule 1 of the ADJR Act and are, therefore, not amenable to review.[8]
[5] Ms Labrum deposes that she is the Principal Advisor Review in the Ethics Group of the Australian Public Service Commission (APSC), where she works on behalf of the Merit Protection Commissioner (MPC), the First Respondent.
[6] Fischer v Commonwealth of Australia (1997) 54 ALD 673 at 680: “In the absence of evidence to the contrary, it must be assumed that the legal advisers to parties inform them of the options available to them to challenge decisions adversely affecting them, at least where the advisers are engaged for the purpose of challenging such decisions.” I note in more detail later in these reasons that Mr Kumar confirmed, on more than one occasion, that he consulted his lawyers specifically in relation to the process of review in which he was engaged. He referred to their advice, following which he wrote to Mr Ramsey of the MPS, as “expert.” See the Department’s Bundle of Documents, p.207 – Mr Kumar’s email to Ms Rowles, dated 15th January 2010.
[7] The relevant agreement is the Department of Immigration and Citizenship Collective Agreement 2007-2010. A copy of that agreement is in the Department’s bundle of documents, p.5. Contrary to the Applicant’s submission that it is an instrument under the Public Service Act 1999, I accept the Department’s submission and the arguments in support (see pars.2-6 of its submissions filed 27th March 2012) that the agreement is an instrument made under s.328 of the Workplace Relations Act 1996.
[8] Schedule 1 to the ADJR Act is entitled “Classes of decisions that are not decisions to which this Act applies.” Among the legislation there listed is the Workplace Relations Act 1996.
The Department also says that the only decision that is amenable to judicial review is that of Ms Savic dated 7 July 2011. And in relation to that decision, the Department says that no grounds have been identified by the Applicant that would entitle the Court to review it. The Department also says that the decision of 7th July superseded the decisions referred to in paragraphs 11 and 13 of the Amended Application.[9]
[9] The Applicant formally conceded in written submissions, filed on 16th March 2012 that the decision referred to in paragraph 14 of the amended application superseded the decision referred to in paragraph 11, and that “the relevant decision is at paragraph 14 and is the relevant and operative decision.”
As it happened, early in the trial the Applicant confirmed that he would not pursue relief in relation to grounds 1-10 of the Amended Application, and would only press for relief in relation to the matters set out in paragraphs 11-14.[10] This late-announced course meant that the Department’s objections to competency were otiose.
[10] See Transcript (3rd October 2012) p.8.
Notwithstanding the Applicant’s position just outlined, because some of the earlier conduct and or decisions were preparatory or intermediate for later decisions, it is apposite to consider those earlier grounds.
B. Orders Sought & Grounds of Relief
The Applicant’s [Further] Amended Application for an Order for Review, filed 16 March 2012, and the grounds upon which his relief is sought, are in the following terms:[11]
[11] In his amended application Mr Kumar refers to a review conducted by Mr Hodges, and challenges its process and findings. However, while he makes no formal application for review of it, nonetheless he seeks orders that his “decision” be set aside. But there is no relevant “decision” from Mr Hodges. Likewise, in the mass of documents and affidavits, there is reference to a review conducted by Mr Napier in 2008. As with Mr Hodges, formally, Mr Kumar seeks no review of anything said or done by Mr Napier. In these circumstances, I do not propose to consider either of the reviews conducted by Mr Hodges or Mr Napier. See also the Department’s similar observations regarding no relief sought in relation to the Hodge’s review: Transcript (3rd October 2012) pp.11 & 13.
Application for review of conduct related to the making of decisions of:
1. Ms Rebecca Gorlick of the Second Respondent (the Department of Immigration and Citizenship referred to as “DIAC”) of 15 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Gorlick’s conduct No 1) under section 6 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act);
2. Mr Michael Fileman of the Second Respondent of 16 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Fileman conduct No 1") under section 6 the ADJR Act;
3. Ms Rebecca Gorlick of the Second Respondent of 9 May 2008 that the applicant’s performance has been unsatisfactory and requires further development (the Gorlick’s conduct No 2) under section 6 of the ADJR Act;
4. Mr Michael Fileman of the Second Respondent (DIAC) of 16 May 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Fileman conduct No 2) under section 6 of the ADJR Act; and
5. Delegate Mr Craig Farrell of the Second Respondent (DIAC) of 25 June 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Farrell conduct No 1) under section 5 of the ADJR Act.
Application for review of decisions of:
6. Ms Rebecca Gorlick of the Second Respondent of 15 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Gorlick decision No 1) under section 5 of the ADJR Act;
7. Mr Michael Fileman of the Second Respondent of 16 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Fileman decision No 1) under section 5 the ADJR Act;
8. Ms Rebecca Gorlick of the Second Respondent of 9 May 2008 that the applicant’s performance has been unsatisfactory and requires further development (the Gorlick decision No 1) under section 5 of the ADJR Act;
9. Mr Michael Fileman of the Second Respondent of 16 May 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Fileman decision No 2) under section 5 of the ADJR Act;
10. Delegate Mr Craig Farrell of the Second Respondent (DIAC) of 25 June 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Farrell decision No 1) under section 5 of the ADJR Act;
11. Delegate Mr Craig Farrell of the Second Respondent of 23 December 2008 that the Applicant’s classification be reduced from an APS EL 1 to an APS Class 6 (the Farrell decision No 2) under section 5 of the ADJR Act;
12. The First Respondent (the Merit Protection Commissioner, referred to as (the MPC decision No 1) of 7 December 2009 and 15 January 2010 to determine certain actions for review were “out of time” and to not correspond any further in relation to the non-reviewable actions under section 5 of the ADJR Act;
13. The First Respondent referred to as (the MPC decision No 2 of 23 February 2011 to recommend to the 2nd Respondent (DIAC) that the action under review be confirmed (the MPC decision No 2) under section 5 of the ADJR Act; and
14. Delegate Ms Maria Savic of the 2nd Respondent referred to as ("the DIAC decision No 2") of 7 July 2011 to confirm the MPC decision No 2 under section 5 of the ADJR Act;
The Applicant’s grounds of review in relation to Ms Gorlick’s conducts [sic] 1 and 2 are:
(a) that Ms Gorlick fell into legal and jurisdictional error by misconstruing the requirements of the DIAC’s CA and DIAC’s Performance Management Framework;
(b) that Ms Gorllick’s conducts breached the rules of natural justice and procedural fairness;
(c) that Ms Gorlick’s conduct was an improper and excessive exercise of her power;
(d) that Ms Gorlick’s conduct was tainted and induced by an apprehension of bias on the basis of predetermination in association with Mr Fileman; and
(e) that there was no logical and/or probative evidence or other material to justify Ms Gorlick behaving in such a heavy handed manner.
The Applicant’s grounds of review in relation to Mr Fileman’s conducts [sic] 1 and 2 are:
(a) that Mr Fileman fell into legal and jurisdictional error by misconstruing the requirements of the DIAC’s CA and DIAC’s Performance Management Framework;
(b) that Mr Fileman’s conducts breached the rules of natural justice and procedural fairness;
(c) that Mr Fileman did not have jurisdiction to conduct himself in such a manner;
(d) that Mr Fileman’s conduct was an improper and excessive exercise of power;
(e) that Mr Fileman’s conduct was tainted and induced by an actual as well as an apprehension of bias on the basis of his predetermined outcome in association with Ms Gorlick and delegate Mr Farrell through his provision of false and misleading information;
(f) the evidence relied upon by Mr Fileman to justify his actions were manifestly inadequate and they were neither logical nor probative; and
(g) the evidence provided by Mr Fileman to justify his actions did not contain relevant information and was therefore misleading.
The Applicant’s grounds of review in relation to Mr Farrell’s decision are:
(a) that his decision’s [sic] were induced by an apprehension of bias on the basis of predetermination in association with Mr Fileman;
(b) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(c) that a breach of the rules of procedural fairness occurred as the requirements as laid down in the DIAC CA, DIAC Policy and DIAC Procedures were not observed;
(d) that Mr Farrell failed to take into account relevant considerations; and
(e) that the decision was unreasonable and excessive exercise of the power and therefore improper was otherwise contrary to law.
The Applicant’s grounds of review in relation to Mr Chris Hodges’s primary review was [sic] that:
(a) that the primary review failed to consider the aspects of the applicant’s claims about breaches of the rules of natural justice and procedural fairness;
(b) that Mr Hodges asked himself the wrong question and ignored relevant considerations;
(c) that the primary review did not cure procedural the defects.
The Applicant’s grounds of review in relation to the “MPC” decision no’s 1 and 2 are:
(a) the MPC fell into an error of law by failing to consider the decision in it’s [sic] totality because of its decision to declare significant aspects of the applicant’s claims as “out of time” thereby denying itself the opportunity to consider the merits of the decision with a fresh and independent mind;
(b) the MPC asked itself the wrong question and ignored the relevant considerations;
(c) the MPC review did not ‘cure’ the procedural defects; and
(d) the MPC did not carry out a review as required under the Public Service Legislation.
The Applicant’s grounds of review in relation to the DIAC decision no 2 are that:
(a) it also fell into error of law by failing to consider the decision in it’s [sic] totality because of its decision to declare significant aspects of the applicant’s claims as “out of time” thereby denying itself the opportunity to consider the merits of the decision with a fresh and independent mind.
(b) it again asked itself the wrong question and ignored the relevant considerations; and
(c) it’s decision did not ‘cure’ it’s [sic] own procedural defects.
The Applicant seeks orders that:
1. the decisions of Ms Gorlick, Mr [sic] Fileman, Mr Farrell, Mr Hodges, the MPC and Ms Savic be set aside; and
2. the conduct related to the decisions of Ms Gorlick, Mr Fileman and Mr Farrell is conduct inconsistent with the principles of natural justice and procedural fairness; and
3. costs of these proceedings be payable to the applicant; and
4. such other orders as this Honourable Court thinks fit.
The Respondent’s orders sought, and the detailed grounds upon which they are based, are as follows:
Response to applicant’s claims for final orders
1. The second respondent opposes the making of all the orders sought in the Amended Application and seeks that:
1.1 The proceedings be dismissed.
1.2 The applicant pay the costs of the second respondent as agreed or taxed.
Procedural and other orders sought by second respondent
2. The second respondent seeks an order that the Court first hear and determine the second respondent's applications for the orders set out in the following paragraph before proceeding to hear and determine the applicant's amended application for review.
3. On the grounds set out below, the second respondent seeks orders that:
3.1 the conduct and decisions referred to in paragraphs 1 to 10 of the Amended Application are not reviewable by the Court;
3.2 in addition, or in the alternative, the Court does not grant an extension of time for the applicant to file an application for an order of review in relation to the conduct and decisions referred to in paragraphs 1 to 12 of the Amended Application;
3.3 in addition, or in the alternative, the Court declines to review the conduct and decisions referred to in paragraphs 1 to 13 of the Amended Application.
4. On the grounds set out below, the second respondent considers that the Court should review only the decision referred to in paragraph 14 of the Amended Application and should not review any of the other decisions or conduct referred to in the Amended Application.
Response to Jurisdictional Issues
5. The second respondent accepts that the decisions referred to in paragraphs 11, 12, 13 and 14 of the Amended Application are decisions to which the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) applies.
5.1 The decision referred to in paragraph 11 of the Amended Application was made pursuant to s 23(4)(e) of the Public Service Act 1999.
5.2 The decision referred to in paragraph 12 of the Amended Application was made pursuant to Reg 5.23(3)(a) and Reg 5.31(2) of the Public Services Regulations 1999 (the PS Regulations).
5.3 The decision referred to in paragraph 13 was made pursuant to Reg 5.31(2) of the PS Regulations. The respondent accepts that, by virtue of s 3(3) of the AD(JR) Act, the decision referred to in paragraph 13 of the Amended Application is a decision for the purposes of the AD(JR) Act, having regard to Reg 5.32(1).
5.4 The decision referred to in paragraph 14 of the Amended Application was made pursuant to Reg 5.32 of the PS Regulations.
Objection to competency
6. On the grounds set out below, the second respondent objects to the competency of the Court to review:
6.1 the conduct referred to in paragraphs 1 to 5 of the Amended Application; and
6.2 the decisions referred to in paragraphs 6 to 10 of the Amended Application.
7. The second respondent objects to the competency of the Court to review the conduct referred to in paragraphs 1 to 5 of the Amended Application on the ground that the conduct was not engaged in for the purpose of making a decision to which the AD(JR) Act applies.
8. The second respondent objects to the jurisdiction of the Court to review the decisions referred to in paragraphs 6 to 10 of the Amended Application on the ground that the decisions are not decisions to which the AD(JR) applies, as they were not made under an enactment for the purposes of the AD(JR) Act, on the basis that they were an exercise of executive power, or an exercise of general employer powers, in relation to the management of the applicant as an employee in accordance with DIAC Managing Underperformance Policy (DIAC People Management Policy 14.0) dated March 2007, which is an administrative or policy document, and not an enactment for the purposes of the AD(JR) Act.
9. In addition, or in the alternative, the second respondent objects to the jurisdiction of the Court to review the decisions referred to in paragraphs 6 to 10 of the Amended Application on the ground that the decisions are not decisions to which the AD(JR) applies, as the decisions are included in the class of decisions set out in item (a) of Schedule 1 to the AD(JR) Act, being decisions under the Workplace Relations Act 1996, on the basis that the decisions were made pursuant to an instrument under the Workplace Relations Act 1996 as follows.
9.1 the decision referred to in paragraph 6 was made by Ms Gorlick pursuant to cl 3.11 of the Department of Immigration and Citizenship Collective Agreement 2007-2010 (the DIAC CA)
9.2 the decision referred to in paragraph 7 of the Amended Application was made by Mr Fileman pursuant to cl 3.11 of the DIAC CA
9.3 the decision referred to in paragraph 8 was made by Ms Gorlick pursuant to cl 3.11 of the DIAC CA
9.4 the decision referred to in paragraph 9 was made by Mr Fileman pursuant to cl 3.11 of the DIAC CA
9.5 the decision referred to in paragraph 10 was made by Mr Farrell pursuant to cl 3.12 of the DIAC CA.
Opposition to extension of time
10. With the exception of the applications to review the decisions referred to in paragraphs 13 and 14 of the Amended Application, the applications in the Amended Application to review decisions and conduct have been made outside the time required by s 11 of the AD(JR) Act.
11. If the Court declines to uphold the second respondent's objections to competency in relation to paragraphs 1 to 10, the second respondent objects to any extension of time for lodging applications for review of the conduct or decisions referred to in paragraphs 1 to 10 of the Amended Application on the following grounds. The second respondent also objects to any extensions of time for lodging applications for review of the decisions referred to in paragraphs 11 and 12 of the Amended Application on the following grounds.
12. To the extent that any of the conduct referred to in paragraphs 1 to 5 of the Amended Application was engaged in for the purpose of making a decision referred to in paragraphs 6 to 12 of the Amended Application, the Court should not review that conduct, as the applications in the Amended Application to review the decisions referred to in paragraphs 6 to 12 were made out of time.
13. The decision referred to in paragraph 6 of the Amended Application was made on 15 January 2008 and the terms of the decision were emailed to the applicant's work email address at 6.27pm on 15 January 2008. An application for review of that decision was required by s 11 of the AD(JR) Act to be made, at the latest, by 13 February 2008. The application for review was made on 23 March 2011.
14. The decision referred to in paragraph 7 of the Amended Application was made on 16 January 2008 and was emailed to the applicant's work email address at 6.16pm on 16 January 2008. An application for review of that decision was required by s 11(3)(b)(iii) of the AD(JR) Act to be made, at the latest, by 14 February 2008. The application for review was made on 23 March 2011.
15. The decision referred to in paragraph 8 of the Amended Application was made on 9 May 2008 and the terms of the decision were emailed to the applicant's work email address that day. An application for review of that decision was required by s 11(3)(b)(iii) of the AD(JR) Act to be made by 6 June 2008. The application for review was made on 23 March 2011.
16. The decision referred to in paragraph 9 of the Amended Application was made on 16 May 2008 and the terms of the decision were emailed to the applicant's work email address that day. An application for review of that decision was required by s 11 of the AD(JR) Act to be made by 13 June 2008. The application for review was made on 23 March 2011.
17. In the alternative, the applicant was advised of the terms of the decision referred to in paragraph 9 of the Amended Application by a letter from Craig Farrell dated 27 May 2008 and hand-delivered to the applicant on 28 May 2008, and an application for review of the decision referred to in paragraph 9 was required by s 11(3)(b)(iii) of the AD(JR) Act to be made by 25 June 2008.
18. The decision referred to in paragraph 10 of the Amended Application was made on 25 June 2008 and was emailed to the applicant's work email address at 5.35pm on 25 June 2008. An application for review of that decision was required by s 11(3)(b)(iii) of the AD(JR) Act to be made by 24 July 2008. The application for review was made on 23 March 2011.
19. The decision referred to in paragraph 11 of the Amended Application was made on 23 December 2008 and the terms of the decision were hand-delivered to the applicant's home address that day. An application for review of that decision was required by s 11(3)(b)(iii) of the AD(JR) Act to be made by 20 January 2009. The application for review was made on 23 March 2011.
20. The decisions referred to in paragraph 12 of the Amended Application were made on 7 December 2009 and 15 January 2010. Pursuant to s 160 of the Evidence Act 1995 it is presumed that the terms of the decisions were furnished to the applicant on 11 December 2009 and 21 January 2010, respectively. An application for review of those decisions was required by s 11(3)(b)(iii) of the AD(JR) Act to be made by 8 January 2010 and 18 February 2010, respectively. The application for review was made on 23 March 2011.
21. The second respondent notes that the applicant has sought an extension of time to review the decision of Assessor Napier on 23 October 2008. The Amended Application does not seek review of this decision.
22. The second respondent objects to the grant of any extension of time.
23. The second respondent accepts that the applications to review the decisions referred to in paragraphs 13 and 14 of the Amended Application were made within time.
Exercise of Discretion to Decline to Review Conduct and Decisions
Paragraphs 1 to 12 of the Amended Application
24. In addition, or in the alternative, if the Court declines to uphold the respondent's objections to competency, and if the Court is prepared to grant extensions of time in relation to the conduct and decisions referred to in paragraphs 1 to 12 of the Amended Application, the second respondent requests that the Court exercise its discretion to decline to review the conduct and decisions referred to in paragraphs 1 to 12 of the Amended Application on the following grounds.
24.1 The conduct and decisions referred to in paragraphs 1 to 10 of the Amended Application were preliminary steps leading to the decision referred to in paragraph 11 of the Amended Application.
24.2 The decision referred to in paragraph 14 of the Amended Application has superseded the decision referred to in paragraph 11. The decision referred to in paragraph 14 is the relevant final and operative decision.
24.3 There is no utility in the Court conducting a review of the conduct and decisions referred to in paragraphs 1 to 12 of the Amended Application.
Paragraph 13 of the Amended Application
25. The second respondent requests that the Court exercise its discretion to decline to review the decision referred to in paragraph 13 of the Amended Application and should review only the decision referred to in paragraph 14 of the Amended Application on the following grounds.
25.1 The decision referred to in paragraph 13 was a recommendation made by a delegate of the Merit Protection Commissioner, the first respondent, pursuant to Reg 5.31(2) of the PS Regulations to the Secretary of the Department of Immigration and Citizenship, the second respondent, about the action reviewed by the Commissioner's delegate.
25.2 In accordance with Reg 5.32 of the PS Regulations a delegate of the second respondent made a decision about the recommendation and confirmed the action in respect of which the recommendation had been made. That decision is the decision referred to in paragraph 14 of the Amended Application.
25.3 The decision referred to in paragraph 14 of the Amended Application has superseded the decision referred to in paragraph 13. The decision referred to in paragraph 14 is the relevant final and operative decision.
25.4 There is no utility in the Court conducting a review of the decision referred to in paragraph 13 of the Amended Application.
Grounds of Second Respondent's Response to Applicant’s Claims for Final Orders
26. In addition, or in the alternative, the second respondent denies any grounds of review in relation to the conduct and decisions referred to in paragraphs 1 to 13 of the Amended Application, as alleged by the applicant, or at all.
27. In relation to the decision referred to in paragraph 14 of the Amended Application, the second respondent denies any grounds of review at all and responds as follows to the grounds alleged by the applicant:
27.1 the decision-maker did not fall into error by failing to consider the applicant's claims that were out of time;
27.2 the decision-maker did not ask the wrong question;
27.3 the decision-maker did not ignore or otherwise fail to take account of the relevant considerations;
27.4 the decision did not contain any procedural defects; and
27.5 the decision did not fail to cure any of its own procedural defects.
C. Chronology
The chronology that follows is taken, in large measure (but not exclusively), from the chronology provided (at the Court’s request) by the Second Respondent’s solicitors.
On 11 August 2001, the Applicant commenced employment with the Department as an Executive Level 1 (“EL 1”) officer.
In January 2008, emails passed between Ms Gorlich and Mr Fileman in relation to performance issues relating to Mr Kumar.
On 9th May 2008, Ms Gorlich emailed Mr Fileman providing her assessment of Mr Kumar’s performance at the end of the Performance Improvement Plan (“PIP”).
On 12th May 2008, Mr Kumar emailed Mr Farrell requesting him to hear his concerns regarding the allegations made in relation to ‘under-performance’.
On 14th May 2008, Mr Kumar again emailed Mr Farrell, in which he sought the assistance of the Department’s Human Resources section to transfer him.
On 16th May 2008, Mr Kumar made a detailed submission to Mr Farrell, claiming that he was being victimised by Mr Fileman. In response, Mr Fileman recommended that a formal under-performance management process be initiated.
On 27th May 2008, Mr Farrell wrote to Mr Kumar to provide him with an opportunity to comment on his proposed course to initiate the under-performance process. On 2nd June, Mr Kumar provided a written response to Mr Farrell in response to his invitation.
On 25th June 2008, Mr Farrell advised Mr Kumar of his decision to initiate the underperformance process, which was in accordance with step 2 of the procedure set out in Clause 3.2 of the Collective Agreement (“CA”). The assessment period was from 26th June to 25th September 2008, with Mr John Napier being appointed as the assessor.
On 27th October 2008, Mr Farrell provided the Applicant with a copy of Mr Napier’s assessment report and invited Mr Kumar to provide any comments on it. On 7th November 2008, Mr Kumar provided written submissions to Mr Farrell in response to his invitation to comment on the Napier report.
On 27th November 2008, Mr Farrell wrote to Mr Kumar, in which he outlined his proposal to reduce his classification to APS 6 level. Mr Farrell also confirmed that Mr Kumar had an opportunity to comment on the proposed demotion.
On 11th December 2008, Mr Kumar provided Mr Farrell with written submissions about the proposed demotion decision. The next day, Mr Kumar’s then solicitors (Pamela Coward Higgins) wrote to Mr Farrell requesting a meeting.[12] Mr Kumar also consulted solicitors, Maurice Blackburn.[13]
[12] The copy of the letter from Mr Kumar’s solicitors, dated 12 December 2008, is p.148 of the Department’s Bundle of Documents (“DBOD”).
[13] A copy of an unsigned letter from Mr Hawkins of Maurice Blackburn to Mr Kumar, dated 12th January 2010, is at p.60 of Mr Kumar’s third affidavit, filed 26th September 2012.
On 12th December 2008, Mr Farrell responded to the Applicant’s solicitors, saying that he had not yet considered Mr Kumar’s response, but that once he had done so he would be in contact with them regarding the request for a meeting.
On 23rd December 2008, Mr Farrell made a decision to reduce Mr Kumar’s classification to APS level 6, and advised Mr Kumar of this decision. On the same day Mr Farrell wrote to Pamela Coward Higgins to advise that he had considered Mr Kumar’s submissions but nonetheless had made a decision to demote Mr Kumar, and that he did not consider that there would be any value in a meeting to discuss matters.
On 22nd January 2009, Mr Kumar applied to the Secretary of the Department for a primary review of the action undertaken against him.
On 26th June 2009, Mr Kumar was advised of the outcome of the primary review, and on 23rd October, Mr Kumar wrote to the Secretary of the Department requesting a secondary review of the action undertaken against him.
On 6th November 2009, the MPC received from the Department Mr Kumar’s request for a secondary review of the action taken by the Department against Mr Kumar.[14]
[14] The detailed documents from Mr Kumar to Mr Metcalfe are at DBOD pp.172-186.
On 12th November 2009, Ms Labrum wrote to Mr Kumar to acknowledge his request for a review. She indicated to him that her preliminary view was that some of the actions for which he sought review were no longer reviewable under the Public Service Regulations 1999. Mr Kumar was advised that he had the opportunity, by 27th November 2009, to explain whether any exceptional circumstances applied which explained the delay in applying for review.[15]
[15] See DBOD, pp.189-190.
On 20th November 2009, Ms Payne of the CPSU emailed the MPC a letter dated 20th November 2009 in which it was submitted that there were exceptional circumstances why the application for review of some actions was not made in time.
On 25th November 2009, Ms Labrum wrote to Mr Kumar advising that she had considered Ms Payne’s letter but had decided that certain actions were no longer reviewable because there were no exceptional circumstances to explain why his application in relation to them was not lodged in time.[16]
[16] DBOD, pp.195-196.
On 20th November, Ms Payne, from the CPSU, wrote to Ms Labrum, on behalf of Mr Kumar, in which the union set out what it regarded as exceptional circumstances, contrary to the view formed by Ms Labrum and set out in her letter to Mr Kumar, dated 12th November 2009.[17]
[17] The CPSU correspondence is at DBOD pp.200-202.
On 26th November, Mr Kumar sent Ms Labrum an email in response to her letter of 12th November. He attached a submission in which he set out what he considered to be exceptional circumstances.[18] The following day, Ms Labrum replied to Mr Kumar’s email. She advised him that her decision regarding certain actions being out of time would be reconsidered to take into account the information he had provided.[19]
[18] DBOD pp.197-199.
[19] See Ms Labrum’s email to Mr Kumar, dated 27th November, at DBOD p.204.
On 7th December, Mr Ramsey (from the office of the MPC) wrote to Mr Kumar to advise him that he had considered his submissions provided on 26th November, but had decided that certain actions were no longer reviewable because there were no exceptional circumstances explaining why the application in relation to those particular actions was not lodged in time.[20]
[20] DBOD pp.205-206.
On 16th – 21st December 2009, Ms Rowles (also from the MPC) and Mr Kumar exchanged emails regarding arranging a time for an interview to discuss the decision that certain actions were out of time, and also to traverse his review rights.[21]
[21] See Ms Labrum’s affidavit, par.15 and the documents therein referred to.
On 15th January 2010, Mr Kumar emailed Ms Rowles and attached a letter to Mr Ramsey, dated 12th January 2010, which was a copy of a faxed response to Mr Ramsey and his letter of 7th December 2009.[22]
[22] DBOD pp.207-210. Among other things, and subject to further comment later in these reasons, Ms Rowles’ correspondence with Mr Kumar of 13th January 2010, in my view, is a model of courtesy and clearly sets out every relevant offer of assistance to Mr Kumar, including to clarify any issues relating to his review and to provide “any relevant additional information.”
On 15th January 2010, Mr Ramsey wrote to Mr Kumar stating that the MPC would not be responding further regarding the decision made on 7th December 2009 in relation to “the non-reviewable actions”. The MPC confirmed that it would otherwise continue to “interact” with him in relation to “the actions which are the subject of the review that is currently being conducted.”[23]
[23] DOBD pp.211-212.
On 23rd February 2011, Ms Labrum recommended to the Department that the actions under review be confirmed. On this date, she also wrote to Mr Kumar to advise him of this recommendation.[24]
[24] DOBD pp.213-231. In my view, and also subject to later discussion, the reasons provided by Ms Labrum are very comprehensive.
On 25th February 2011, Mr Kumar emailed the MPC to request a statement of reasons under s.13 of the ADJR Act. On 1st March 2011, Ms Labrum wrote to the Applicant advising him that in her view he was not entitled to a statement of reasons under s.13 of the ADJR Act.
As previously noted, Mr Kumar filed an application for judicial review in this Court on 23rd March 2011.
On 21st April 2011, Ms Savic (from the Department) wrote to Mr Kumar to give him an opportunity to comment on the MPC’s recommendation.
On 29th April 2011, Ms Savic again wrote to Mr Kumar to advise that he was granted an extension of time to comment on the MPC’s recommendation. On 3rd May, Mr Kumar provided a response to Ms Savic.
On 7th July 2011, Ms Savic wrote to Mr Kumar to advise him of her decision to confirm the earlier decision to reduce his classification from an EL 1 to the level of an APS 6 and the reasons for this decision.[25]
[25] DOBD pp.232-247.
D. Statutory Provisions
For ease of reference, I set out below the provisions from the ADJR Act referred to or relied upon by the parties in their orders sought and submissions. To the degree necessary, relevant provisions of other legislation that pertain to the current proceeding, such as from the Public Service Act, will be set out in the course of these reasons as required.
Section 3(1) of the ADJR Act provides definitions of “decision” and “enactment” both of which terms/definitions are relevant to the current proceeding. Those definitions are:[26]
[26] For the purposes of the present matter, and notwithstanding the change in name of this Court, it is appropriate to retain references in the ADJR Act to the ‘Federal Magistrates Court.’
decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor‑General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.
Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.
enactment means: (emphasis added)
(a) an Act, other than:
(i) the Commonwealth Places (Application of Laws) Act 1970; or
(ii) the Northern Territory (Self‑Government) Act 1978; or
(iii) an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c) an instrument (including rules, regulations or by‑laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb) an instrument (including rules, regulations or by‑laws) made under an Act or part of an Act covered by paragraph (ca); or
(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
Note: Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).
Sections 3(2) - 3(5) of the same Act relevantly provide (emphasis added):
(2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.
(4) In this Act:
(a) a reference to a person aggrieved by a decision includes a reference:
(i) to a person whose interests are adversely affected by the decision; or
(ii) in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and
(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
(5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.
Section 5 of the ADJR Act refers to applications for review of “decisions.” That section provides (emphasis in original text):
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Section 6 of the ADJR Act refers to applications for review of “conduct” related to the making of decisions. That section provides (emphasis added):
(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds:
(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;
(b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;
(c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;
(d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;
(e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;
(f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;
(g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;
(h) that there is no evidence or other material to justify the making of the proposed decision;
(j) that the making of the proposed decision would be otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or
(b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.
Section 11 of the ADJR Act deals with the [28 day] time-frame within which applications for review are to be made, as well as (a) the discretion that rests with the Court and (b) the matters a court shall have regard to regarding whether or not to entertain the application, such as “the time when the applicant became aware of the making of the decision”, and more generally, “such other matters as it considers relevant."
E. Evidence Relied Upon
The Applicant relied upon three detailed affidavits that were filed on 2nd August 2011, 27th March 2012, and 26th September 2012. He was also cross-examined. Notwithstanding the cross-examination, given the voluminous documentary ‘trail’, in my view, the case could very properly have been conducted solely on the basis of the documents and the submissions – of which there was an abundance (if not a surfeit) also.[27] Indeed, at one particular point in his submissions, Mr Kumar’s Counsel said that his client “can make out his case based on the written material, by and large.”[28]
[27] In total, there were nine (9) separate written submissions; 4 on behalf of the Department, and 5 on behalf of the Applicant.
[28] Transcript (4th October 2012) p.9.
In addition to what to what has been noted earlier in these reasons, it is sufficient to record from Mr Kumar’s oral evidence that (a) he confirmed that he received independent legal advice (from a number of different lawyers), and (b) his understanding was that he could pursue judicial review after the merits review process was concluded. He also confirmed that he was aware of his review rights at least as long ago as January 2010.[29] Of course, the Department says that he was, or should have been, aware of his review rights at a much earlier point in time.
[29] See, for example, Transcript (3rd October 2012) pp.20, 21 & 38.
As already indicated, there was but one affidavit filed on behalf of the Department, that of Ms Labrum, filed on 10th February 2012. That affidavit annexed 106 pages of supporting documents, and referred to an indexed folders of further documents, which totalled a further 268 pages (although quite a number of the documents annexed to her affidavit are also in the Departments ‘bundle of documents’).[30]
[30] I need only note that Ms Labrum was very briefly cross-examined.
The Department’s bundle of documents also contained copies of documents produced by (a) the MPC entitled “Information for applicants for secondary review under Public Service Regulation 5.29”, and (b) the Australian Public Service Commission entitled “Merit Protection Commissioner: Review of Actions.” Similar documents of “information” are annexed to Ms Labrum’s affidavit, filed 10th February 2012.
Mr Kumar also relied on a much smaller folder of documents (of 167 pages) as well as an indexed and paginated folder of 387 pages. A number of the documents provided by Mr Kumar were also in the collection provided by the Department, such as the decision by Ms Savic, the acting Director, Workplace Relations Section in the Department, dated 7 July 2011, correspondence with Mr Fileman (also from the Department) in June 2008 (and Mr Kumar’s response dated 7 November 2008), and the Report from the Merit Protection Commission dated 23 February 2011.[31]
[31] In the course of the hearing it was confirmed that all of the documents contained in the separate bundles filed on behalf of Mr Kumar and the Department should be taken to have been formally admitted into evidence. The three affidavits of Mr Kumar were formally ‘read’. And as indicated, the Department relied solely on the affidavit of Ms Labrum and the documents annexed to her affidavit, and those in the DBOD.
For current purposes, it is sufficient to note the following from Mr Kumar’s affidavit, filed 26th September 2012, the principal gravamen of which is to set out reasons for the delay in his application(s) for judicial review. Unfortunately, leaving aside the significant levels and areas of duplication with other documents provided to the Court and the history of events, in my view, rather than assisting him, the matters he outlines in this last affidavit only make even more clear the significant, if not insurmountable, barriers that prevent his Application to this Court succeeding.
For example, at par.5 of the September affidavit he deposed: “My understanding of the process [of review] was confirmed by the advice and actions of my Union, the Community and Public Sector Union (CPSU) and my then solicitors, Pamela Coward Higgins who at no time sought to advise me fully of my review rights, which are now being asserted as out of time.”
Mr Kumar then set out not only “his understanding” of the ‘process of review’, for example in the light of the Department’s Collective Agreement 2007 and the Department’s “Managing Underperformance Policy 14.0”, but also his series of entreaties, correspondence and submissions with various persons in the Department. He also confirmed (at par.17 of the affidavit) the involvement of ‘his then Union rep’ (a Mr Malone) and certain representations by him on Mr Kumar’s behalf, and the involvement of his solicitor, Mr Redpath, who wrote to Mr Farrell in December 2008.[32]
[32] A copy of that letter is at p.204 of the Applicant’s Bundle of Documents (“ABOD”). In his second affidavit, filed 27th March 2012, Mr Kumar deposed to attending a meeting with Mr Fileman and Ms Gorlick, together with his “Union rep.” Presumably this ‘union representative’ provided relevant advice to Mr Kumar; why else would he or she attend such a meeting, other than perhaps for ‘moral support’? Unfortunately, for all of the material provided to the Court, including copies of correspondence between the CPSU (on behalf of Mr Kumar) and the Department/MPC, there is little to indicate what advice the Union provided to Mr Kumar in relation to his appeal rights.
Mr Kumar also confirmed (par.38 of the September affidavit) that he received advice from another solicitor (from the same firm), a Mr Hawkins, in relation to his rights of review.[33]
[33] Mr Hawkins’ letter to Mr Kumar, dated 13th January 2010, is annexed to this affidavit, p.60.
Mr Kumar’s affidavit concluded with the following paragraph (par.48):
At no point was I advised by any party including DIAC’s [the Department) HR, delegate Mr Farrell, the CPSU, my solicitors, Primary Reviewer Mr Hodges or the Secondary Reviewer the MPC that I could seek judicial review without having to wait for the outcome of the secondary review by the MPC. The various advices I received from parties only reinforced my understanding that each and every one of the decisions of the process (the intermediate determinations) that ultimately contributed to the final operative decision should properly be reviewed. I was totally dependent on the advice I received as deposed in this affidavit and on my own interpretation of the PAS legislation, the DIAC CA [Collective Agreement], and Policy, and in the context of the advice I received from parties, none of which clearly stipulated my proper review rights according to law.
These matters were explored in his cross-examination, and with his Counsel.
For example, in answer to questions from the Bench, Mr Kumar confirmed that when he went to see his legal advisers he ‘took his submissions and the Department’s correspondence in response to his submissions.’[34] He also confirmed that upon receiving the decision of Mr Ramsey in January 2010, he no longer took any papers with him when seeking advice from persons outside the Department.
[34] T 3.
Mr Kumar’s Counsel (who was also called ‘Mr Kumar’, but I understand to be no relation) made a number of comments in the course of his submissions. While not formally ‘concessions’, respectfully they assisted his client little. For example, early in his submissions, Counsel said:[35]
He was waiting for the Merit Protection Commissioner to – outcome – the review result to come through, the delivery of the decision. Prior to that, your Honour, he was always taking some step in the process that was before the Merit Protection Commissioner or when there was a – before for internal review of his rights.
[35] T 4.
This submission could be taken to support the contention of the Department that all but the decision of Ms Savic on 7th July 2011 were but preliminary steps, along the way to the only ‘reviewable decision.’
A little later, there were the following exchanges (emphasis added):[36]
[36] T 6 – 9.
HIS HONOUR: Because doesn’t it really amount to this on Mr Kumar’s part: that notwithstanding having been to so many lawyers and his union effectively he says they were all negligent in not giving me other avenues or giving me advice in relation to other avenues to challenge the decision or the decisions that had been made at any relevant time. Is that what it amounts to?
MR KUMAR: Well, there is an oversight, definitely, your Honour. When he has given all his paperwork, all the material is given and seeking, in effect, advice when the drafting deliver, then advising him what to do next and the advising encapsulated, like your Honour yesterday asked some questions about letter in his affidavit number three at page 60. At 59 there was a draft that was attached to – so, in my submission, that is sort of an advice having known of the circumstances where he is going.
(p.7)
HIS HONOUR: Because it would follow – and I’m just putting this to you – it would follow, would it not, that if the court were to accept your submission that notwithstanding having seen perhaps four lawyers and certainly one union, the court is not entitled, in these circumstances, to rely upon the accuracy and the ambit of the advice given by those lawyers and that union to Mr Kumar and therefore he should be entitled to the extension of time that he requires in relation to the particular claims set out in the amended application.
MR KUMAR: Your Honour, another answer to your Honour also is that in this case not only were the solicitors who were advising him, they expected some sort of an indication as to, even from the department, as to what the review rights are. Your Honour has seen in the evidence the extent of advice that was given to the applicant.
HIS HONOUR: So, does it follow that the respondents have to give detailed advice to any applicant that they can’t say, “We can’t give you any advice. You need to get independent legal advice and even though you get independent legal advice, we still have to advise you further”. Is that what it amounts to?
MR KUMAR: No, your Honour, but in my submission, a notification in more clear terms would have assisted and I understand other departments do give a more clear notification.
HIS HONOUR: Well, could I suggest that I’m not entitled, as a matter of evidence, to rely upon whatever other departments may or may not do.
(p.8)
HIS HONOUR: Could I suggest that it’s probably likely – obviously I haven’t heard from Mr Vermeesch, but it’s probably likely that the court might find that it’s a reasonably clear note, a very clear expression, of the position:
This office is not able to provide any advice to you on this being any further avenues of review.
I have difficulty, could I say, in seeing how much more clear or how much more clearly Ms Rolls [sic] or anyone else can or should have been about the advice, saying we can’t give you advice because otherwise, amongst other things, they could then face an accusation later, “we were given the wrong advice”. Is that not the case?
MR KUMAR: Well, it’s not expected to be given advice, your Honour
HIS HONOUR: Well, sorry, I thought I had understood your submission to be ‑ ‑ ‑
MR KUMAR: Not legal advice, this is what I am saying to your Honour.
HIS HONOUR: So they’re not expected to give legal advice. Well, what other advice are they expected to give then in your submission?
MR KUMAR: In my submission, a clear notification …
(p.9)
HIS HONOUR: But you say basically that because Mr Kumar effectively got either inaccurate or incomplete legal advice multiple times over that that is sufficient for him to seek from the court and have the court grant an extension of time to the degree that he needs it. Is that the case?
MR KUMAR: Yes, your Honour.
In the light of these submissions, and in the light of Mr Kumar’s frank evidence about seeking legal advice and providing his then solicitors with his submissions and the Department’s responses thereto, I have the greatest difficulty in seeing how the Court could entertain an application to review any of the decisions, or the conduct complained of, on the ground that the Department did not advise, or did not properly advise, Mr Kumar of his right of review. Although I return to this aspect a little later in these reasons, I see no such duty on the Department to so advise one of its employees other than as it did, namely that, upon notification of any relevant decision, Mr Kumar should seek appropriate independent legal advice in relation to his rights of review.
F. Submissions & Consideration
The matters raised by Mr Kumar in his Application may be resolved by answering the following questions:
(i)Should the extension of time Application by Mr Kumar be granted?
(ii)Is any of the conduct, complained of in paragraphs 1-5 of the Amended Application, reviewable under the ADJR Act?
(iii)Are any of the decisions, complained of in paragraphs 6-14 of the Amended Application, reviewable under the ADJR Act?
Should the extension of time Application by Mr Kumar be granted?
The Applicant, Mr Kumar, acknowledges that the conduct of which he complains, and all but two of the decisions, set out in paragraphs 1-12 of his Amended Application, are out of time. The Department contends that the delays in bringing the application in relation to the conduct and decisions complained of range from approximately 13 months to just over 3 years.
The parties are agreed on the dates when the decisions were provided to the Applicant.[37] The parties are also generally agreed on the principles to be applied in relation to the extension of time Application. In short, on the basis of Wilcox J’s decision in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment, (a) prima facie proceedings commenced out of time will not be entertained, and (b) it falls to the Applicant to provide a suitable or sufficient reason to explain the delay that would warrant the Court to grant the extension of time application.
[37] In detail, see for example the Department’s submissions, filed 10th November 2011, pars.12-20.
In that case, his Honour set out six general principles concerning such applications. Wilcox J said (internal citations omitted; emphasis added):[38]
Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
(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 so to do. 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.
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he 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 dispute.s
(c) Any prejudice to the respondent including any prejudice in defending the proceedings 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 applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion.
[38] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at pp.348-349.
Later in the same case, Wilcox J further observed in relation to matters where some “public administration” was involved:[39]
… 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.
[39] 3 FCR at p.350.
In Jess v Scott, in the context of an out-of-time application concerning an appeal, the Full Court of the Federal Court of Australia said (emphasis added):[40]
[40] Jess v Scott (1986) 12 FCR 187 at p.195 (Lockhart, Sheppard & Burchett JJ). This decision has consistently been considered and applied, and notably in a significant variety of legislative contexts; see, for example, the Full Court judgment in Perpetual Trustee Co. Ltd v Smith (2010) 186 FCR 566 at [13] (Moore, Dowsett & Stone JJ). See also the detailed discussion with respect to the onus an applicant bears in relation to extension of time applications in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, especially Toohey & Gummow JJ at pp.547-549, and McHugh J at pp.551-555 (Dawson J agreed, at p.544, with McHugh J). In particular I note that McHugh J, at p.554 (in the context of the legislation there under discussion) noted that ignorance of rights was not, of itself, sufficient for a court to grant an extension of time. His Honour emphasised that a court ‘is entitled to look at every relevant fact and circumstance…’
It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed - the provision of a time for lodgement of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v. Cumarasamy [1965] 1 WLR 8 at 12:
The rules of court must, prima facie, be
obeyed, and, in order to justify a court in
extending the time during which some step in
procedure requires to be taken, there must be
some material on which the court can exercise
its discretion. If the law were otherwise, a
party in breach would have an unqualified
right to an extension of time which would
defeat the purpose of the rules which is to
provide a time table for the conduct of
litigation.
It should not be overlooked that Rule 15(2) [of the Federal Court Rules] enables leave to be given “at any time;” the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. “Special reasons” must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.
In the later Full Court decision of Comcare v A’Hearn, it was confirmed that: “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.”[41]
[41] Comcare v A’Hearn (1993) 45 FCR 441 at p.444 [15] (Black CJ, Gray & Burchett JJ).
The Department relies also on the Full Court decision in Edelsten v Health Insurance Commission.[42] In that case, the Court said (Northrop & Lockhart JJ), (at p.68):
Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; and it must have the essential quality of being a substantive as distinct from a procedural determination.
The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have real impact upon a person's rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position.
[42] Edelsten v Health Insurance Commission (1990) 27 FCR 56.
The Applicant says (in summary) that there are two reasons for the delay in filing the application for review: (a) he was not aware of his right to seek judicial review; (b) he relied on ‘advice’ from the Department regarding his review rights. In my view, neither reason is reasonable in the circumstances nor does it withstand scrutiny in the light of the documentary evidence before the Court.
In support of his application, Mr Kumar relied on the decision of Thomas J from the Supreme Court of the Northern Territory in Northern Territory of Australia v O'Connor & Anor.[43] That case involved a delay of some 17 years for an application for compensation under the Crimes Compensation Act. His Honour distinguished, at [27], the case before him from what was before the High Court in Brisbane South Regional health Authority v Taylor, among other things, on the grounds that he was concerned with “beneficial legislation” as opposed to an action under the common law. Another way of considering such a distinction, and one which, in my respectful view, is consistent with Thomas J’s approach, is that a more lenient approach may be necessary in a compensation case that arises under or in the context of the criminal law, as opposed to civil matters, which are properly governed by the principles set out by the High Court in Bond and Taylor, and by the Full Court of the Federal Court of Australia in cases such as Jess v Scott and Edelsten.
[43] Northern Territory of Australia v O'Connor & Anor [2003] NTSC 56.
In my view, for the reasons given by Thomas J in O’Connor, that case is readily distinguishable from the facts and circumstances in the current proceeding, not least because here Mr Kumar received regular independent advice in relation to his rights of review. In addition, I note the following.
First, according to the documents before the Court, there is ample evidence that Mr Kumar was provided with documents that stated in general but clear terms that if he was dissatisfied with [any] decision he should seek independent legal advice in relation to his review rights.[44]
[44] Among other places, see annexures B, C, N, O, P, Q & R of Ms Labrum’s affidavit, filed 10th February 2012.
Secondly, in very clear terms, the email from Ms Rowles to Mr Kumar, dated 20th December 2009 (referred to in Ms Labrum’s affidavit at par.15 and the email chain set out in full at pages 49-55 of that affidavit) make plain the MPC’s position and the Applicant’s responsibility. Relevantly, the email from Ms Rowles said (emphasis added):
The secondary review with the Merit Protection Commissioner is the end of your review rights under the Public Service Act. After you have the decision of this office no further correspondence on this matter will be considered by this office. If you are dissatisfied with the outcome from this process you will need to seek independent legal advice and if possible take the matter to court. This office is not able to provide any advice to you on this.
This will be the last time that I discuss or correspond with you in regard to the matters that are not reviewable, you have the decision of this office in regard to those. Further communication must only be in relation to the matters accepted for review.
While perhaps not sufficient to establish some form of estoppel, Mr Kumar replied to Ms Rowles on 21st December 2009 in which he said (emphasis added):
Thank you very much for such a comprehensive response to my enquiry. I was not sure about certain issues and that was the reasons for my persistent enquiries. You have explained them very well and I greatly appreciate your assistance….
I take Mr Kumar’s reply to be an acknowledgement of the position as explained to him of the MPC in relation to, among other things, his rights of review. That being so, he cannot now contend that he was ignorant of his review rights, or that the review process was somehow, or in some way, out of his control.
If the matters just noted were not enough to dispose of Mr Kumar’s contentions, his letter to Ms Labrum, dated 26th November 2009 is even more telling against his Application and the reasons he advances for the Court to grant an extension of time. In that letter he said (emphasis added):[45]
While I acknowledge that the responsibility to seek any review of action during the process rested solely on myself, I was regrettably denied any such advice or option from the delegate until 23rd December 2008. On reflection, it would also have created an enormous impact on my limited resources (in addition to that of the department’s) to seek primary and secondary review of action for each decision as they were made at its various stages. As subsequent decisions were hinging [sic] on to their preceding ones (analogous to a chain reaction), to decide which decision to seek review(s) against and to pursue those review(s) would have created unreasonable bottleneck(s) …
It is my honest belief that the factors outlined above were beyond my control and accordingly I have met my obligations to request a full secondary review of actions in its entirety.
[45] Mr Kumar’s letter is annexure F to Ms Labrum’s affidavit.
Respectfully, I disagree with Mr Kumar’s assessment. Having acknowledged his responsibility to seek review, he cannot [now] claim that either his ignorance or his inaction were ‘beyond his control.’ On his own evidence, he was fixed with knowledge of his review rights from 23rd December 2008.
Thirdly, again on his own evidence, Mr Kumar sought independent legal advice. The documents before the Court confirm that he sought advice from independent lawyers, evidenced by, among other things, the letter from Pamela Coward Higgins, Solicitors, to Mr Farrell (of the Department) dated 12th December 2008, and Mr Kumar’s email to Ms Rowles (of the MPC) dated 15th January 2010, in which he confirmed that he met with his lawyers and obtained “their expert legal advice.”[46]
[46] The letter from Mr Kumar’s solicitors to Mr Farrell of December 2008, is at p.148 of the DBOD, and Mr Kumar’s email to Ms Rowles is at p.207 of the same DBOD.
Finally, I do not agree with the contention that the Department (or the MPC) was under any duty to advise Mr Kumar, in any degree of detail, regarding his rights of review. Such duty as the Department (or the MPC) had, was discharged by advising him in the general terms they did, to which I have already referred. Indeed, particularly on the basis of the correspondence with Ms Rowles from the MPC, and his acknowledgement of that advice, together with the consultations with his own lawyers, Mr Kumar’s contention of failure on the part of the Department to advise him cannot be sustained.
Further, as noted earlier in these reasons, his Counsel confirmed in the course of his submissions that Mr Kumar’s contention should more accurately be framed in terms of a clearer notification of his review rights rather than in terms of a failure to advise.
I reject such a submission. In proceedings that might be characterised as quasi-adversarial, the Department cannot (and ought not) be required to do anything more than bring to Mr Kumar’s attention that there are other avenues to seek redress of any relevant decision made with which he disagreed. To require anything more would place the Department in an impossible position. It would, in effect, require the Department to provide advice to a dis-affected employee as to how that person should engage in litigation against the Department. Such a course is, and would always be, nonsensical.
In my view, the Department, and the MPC in particular, more than satisfied its duty to bring to Mr Kumar’s attention his review rights, that he should seek independent legal advice, and that there may be (or were) likely to be time constraints in seeking such a review. Among other places, the letter from Ms Labrum to Mr Kumar, dated 1st March 2011, made these points abundantly clear. And as I have earlier noted, presumably his lawyers also made things such as time limits to seek review abundantly clear when he consulted them for their “expert legal advice” in January 2010. Presumably his Union also gave appropriate advice to Mr Kumar.
And to repeat: Mr Kumar’s acknowledgement to Ms Labrum, by letter dated 26th November 2009, of his responsibilities in relation to review and time limits that would likely to apply to such courses, and Ms Rowles’ very clear advice on 20th December 2009 (also acknowledged by Mr Kumar), all make his contentions (and explanation for the delay in bringing his Application for Review) untenable.
It may be that if there was failure in relation to advice given to Mr Kumar regarding his rights of review and time limits for same, as acknowledged by his Counsel, it lay at the feet of others, but not, in my view, with the Department. Such matters were for Mr Kumar.
For the sake of completeness, I note that in written submissions filed on 27th March 2012 on behalf of Mr Kumar by his former lawyer in the current proceeding, the following submission is made (par.10):
The Applicant agrees that there is no obligation upon the Commonwealth to provide advice to the Applicant. The Applicant submits that where the Commonwealth does decide to provide advice, and specifically with knowledge of a parties [sic] reliance upon that advice, the obligation adopted by the Commonwealth is to provide complete, proper and accurate advice.
For the reasons already given, I reject such a submission.
And in later written submissions from his Counsel, filed in Court on 4th October 2012) it is said (at pars.4 & 7):
In the main the delay in seeking a timely judicial review is attributable to the advice provided to the Applicant by DIAC [the Department], the CPSU, his solicitors and the MPC and his apparent lack of understanding of his proper review rights.
He [Mr Kumar] talked about “choice” in cross-examination and that he felt that there was no other choice. This should be properly understood in context as that he understood in light of his interaction with the advisers (union and lawyers) that he was not advised of other options.
In my view, and if more be needed, such submissions only make it pellucidly clear that Mr Kumar relied upon advice from, among others, his lawyers and his union in relation to his review rights. As I have said, any failure in this regard should not rest with the Department.
For the reasons outlined, the Application to extend time must be dismissed.
Having reached such a conclusion, strictly speaking it is unnecessary to consider anything other than the challenge to the decisions set out in paragraphs 13 and 14 of the Amended Application. However, because submissions were made in relation to the other challenges to conduct and the earlier decisions, somewhat selectively and as summarily as possible, I note the following before treating the only remaining issues from paragraphs 13 and 14.
Is any of the conduct, complained of in paragraphs 1-5 of the amended application, reviewable under the ADJR Act?
The starting point for consideration of both the conduct and decisions complained of by Mr Kumar is the High Court decision in Australian Broadcasting Tribunal v Bond.[47] In the judgment of Mason CJ, in relation to “conduct”, his Honour said:[48]
The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "”decision” connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "”conduct” in the statutory scheme of things becomes reasonably clear. In its setting in s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, "the taking of evidence or the holding of an inquiry or investigation". It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.
Accordingly, there is a clear distinction between a "decision" and "conduct" engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct". That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.
[47] (1990) 170 CLR 321.
[48] 170 CLR at pp.341-342; Brennan and Deane JJ agreed with Mason CJ in separate concurring judgments. See also the further discussion a little later in the judgment at pp.342-343 where Mason CJ discussed the distinction between “conduct” and “decision” by reference to the ADJR Act.
In my view, two things only need be said about the “conduct” challenged by Mr Kumar set out in paragraphs 1 – 5 of the Amended Application.
First, there seemed to be no dispute that Ms Gorlick, who was responsible for the “conduct” referred to in paragraphs 1 and 3 was, at one stage of her career, junior or subordinate to Mr Kumar. While the Department doubtless had good reasons for Ms Gorlick to be engaged in the process of Mr Kumar’s review, from a human relations perspective, it is not unreasonable that Mr Kumar would have some misgivings about one of his former ‘juniors’ now being involved in the internal process of his review.
Secondly, notwithstanding doubts about the [lack of] prudential judgment of having Ms Gorlick so engaged, and others with whom (so it would seem) there had been some personality or other difficulties with Mr Kumar in the past, nonetheless, on the evidence before the Court I do not see that there is any legal basis upon which Mr Kumar’s challenge to the “conduct” of which he complains can succeed.
Mr Kumar was involved, and he actively engaged, in the internal processes of review undertaken by the Department. At each procedural stage he responded – sometimes in significant detail – to any and all questions put to him. His responses are set out in his affidavit material, and are equally plain in the documents provided to the Court by the Applicant and by the Department. He was afforded every procedural opportunity to put his case and any arguments or documents. In his affidavit material he sets out in great detail each step, each document and response he made.
Mr Kumar’s claims for review in relation to “conduct” are flawed for another reason. In relation to each of the ‘grounds of review’ set out at paragraphs (a) – (e) concerning Ms Gorlick’s “conduct”, they are at such a level of generality as to be of no assistance to the Court. For example, Mr Kumar contended that “Ms Gorlick fell into legal and jurisdictional error by misconstruing the requirements of the [Department’s] CA and the [Department’s] Performance Management Framework.” His remaining grounds of complaint refer variously to ‘breach of the rules of natural justice and procedural fairness’, her ‘improper and excessive exercise of power’, bias, and there being no ‘logical and/or probative evidence’ that would justify Ms Gorlick “behaving in such a heavy handed manner.”
Unfortunately, Mr Kumar fails to provide any relevant detail or evidence of the matters of which he complains that would justify the Court interfering or intruding. He does not identify what the ‘legal and jurisdictional error” of Ms Gorlick is (or was).
Similar gaps apply to each of his other contentions, including any reference to how the well-established test in relation to apprehended (or actual) bias is satisfied on the facts known here. The relevant test in relation to apprehended bias, most recently articulated by the High Court in Michael Wilson & Partners Limited v Nicholls, refers to and requires that the ‘fair-minded [well-informed] lay observer might reasonably apprehend that the judge [or relevant decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question the judge [or relevant decision-maker] is required to decide.’[49] The High Court confirmed that the test is an objective one. This test is not addressed in any relevant way (or even referred to) by Mr Kumar. A mere assertion (such as here), without more, is insufficient to establish bias – of any kind.
[49] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31]. Michael Wilson, of course, relies upon the significant jurisprudence in relation to ‘bias’ that begins, for all intents and purposes, with the High Court decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. It is important to recognise also, as noted by the High Court, that the principles in relation to bias that apply to courts cannot automatically be applied or transposed to other ‘decision-makers’, such as tribunals. See, for example, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at pp. 460 (McHugh J) and 480 (Kirby J).
Further, Ms Gorlick’s “conduct” did nothing more than commence a process. She determined that, in all the circumstances, the relevant process of review should commence. In my view, neither of Ms Gorlick’s decisions taken on 15th January 2008 or 9th May 2008, to initiate a review, and to investigate further the Applicant’s work performance, warrant the Court’s intervention. No ground of review of her conduct has been made out by Mr Kumar.
The same comments equally apply to each of the other complaints of Mr Kumar against the conduct of Mr Fileman (on 16th January 2008 and 16th May 2008), and of Mr Farrell (on 25th June 2008). On the face of the materials before the Court there is no ground established by Mr Kumar that warrants the Court to intervene. In my view, by reference to (a) the comments of Mason CJ in Bond and (b) the conduct of the Department at each stage of the review process, there is no basis or substance to Mr Kumar’s complaints regarding process or “conduct.”
Further, the Amended Application challenges conduct that is significantly out of time. For reasons explained earlier that deal in more detail with the ‘out of time’ Application, and in addition to the lack of merit in the Application, in my view, there is nothing that here warrants the Court to allow the Application to proceed in any event because (a) it is out of time to such a significant degree and (b) there is not a sufficiently cogent reason to extend time to allow them to proceed. If fault there be in relation to matters of “time” and “advice”, for reasons set out earlier, it does not fall at the feet of the Department.
Are any of the decisions, complained of in paragraphs 6-14 of the Amended Application, reviewable under the ADJR Act?
In Bond, Mason CJ also discussed what was comprehended by “decision.” After (a) referring, among other things, to comments by Deane J in Director-General of Social Services v Chaney,[50] and (b) noting that because the ADJR Act is a “remedial statute” there should be no narrow view taken of the word “decision”, and (c) observing that relief was available in relation to decisions that were not necessarily “final”, his Honour said (emphasis added):[51]
Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".
[50] Director-General of Social Services v Chaney (1980) 31 ALR 571 at p.590.
[51] Bond 170 CLR at p.336.
Mason CJ continued (emphasis added):[52]
[52] 170 CLR at pp.337 - 338.
… a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination.
If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of "conduct" than with the notion of "decision under an enactment".
… To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.
In the light of Mason CJ’s comments in Bond in relation to “decision”, in my view, each of the decisions set out in paragraphs 6 – 13 of the Amended Application are but ‘steps’ along the way to an ultimate decision. That ‘ultimate decision’ was taken by Ms Savic on 7th July 2011. Precisely because none of the other steps were determinative or final, they are not reviewable under the ADJR Act, for the reasons given by Mason CJ.
Further, decisions 6 – 12 are also out of time. For reasons given earlier, Mr Kumar’s explanation as to why the Court should extend time to hear the Applications is insufficient as to warrant the Court to grant that Application for an extension of time.
Further still, the same comments made in relation to Ms Gorlick’s “conduct” also apply to the challenges to the “decisions” set out in the Amended Application. Among other things, they are set out at such a high level of abstraction and generality as to be of no assistance either to Mr Kumar’s challenges or to the Court. The Court cannot ‘fill in the gaps’, so to speak, in applications which lack sufficient precision of either argument or evidence.
The same level of abstraction and generality afflicts the two MPC decisions, set out in paragraphs 13 and 14 of the Amended Application. This is also to say that Mr Kumar’s challenge fails to identify with sufficient precision and particularity the errors about which he complains. Absent such detail, and faced only with allegations of error at such a significant level of generality, his Amended Application must fail in relation to those two decisions.[53]
[53] In passing, I should note that ‘decision 14’ superseded (and if necessary “cured” any defects in) the decision complained of in paragraph 11 of the amended application.
In relation to “decisions” 6 – 12, I also accept the additional submission on behalf of the Department, which is to the effect that even if there was found to be any error (procedural or substantive) (which is denied) each subsequent, intermediate (i.e. non-final) decision “cured” any earlier (in time, decisional or procedural) irregularity. And to pre-empt slightly what follows, I also accept the same reasoning in relation to the MPC’s first decision, dated 23rd February 2011. Thus, even if there were any defects of any kind in or in relation to that decision, the later decision of Ms Savic of 7th July 2011 “cured” them.
Other Matters
I note the following matters for the sake of completeness.
First, in Griffith University v Tang, Gleeson CJ said, at [10] (internal citations omitted):[54]
Placing reliance upon Australian National University v Burns and Australian National University v Lewins, the appellant argued that, to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and, in addition, it must be the statute which gives legal force or effect to the decision. Those cases, and other decisions of the Federal Court extending over many years, establish, in relation to the ADJR Act, that it is not enough that the decision be within power. The legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation in a statute. As Lehane J put it in Australian National University v Lewins, a decision meets the test "only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect."
[54] Griffith University v Tang (2005) 221 CLR 99. The reference to Lewins’ case is Australian National University v Lewins (1996) 68 FCR 87, with the comments by Lehane J at 68 FCR p.101. Kiefel J, at p.96, agreed with Lehane J.
Then in the joint judgment of Gummow, Callinan and Heydon JJ, their Honours said, at [79] - [81] (internal citations omitted):
[79] The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
[80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
[81] If the decision derives its capacity to bind from contract or some other private law source, then the decision is not "made under" the enactment in question….
Then at [82] and [89], they said:
[82] For these reasons, a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties.
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
In the light of these comments by the High Court in Tang, I accept the further submissions on behalf of the Department to the following effect (which, in any event, largely repeat, but in a different context, submissions already made and accepted earlier in these reasons):
(a)The decisions made by the Department in relation to Mr Kumar were not made, and his rights and entitlements were not affected, by virtue of the operation of provisions in the Public Service Act;
(b)The conduct complained of by Mr Kumar did not effect any change in his entitlements or position. The conduct complained of related only to matters of process and no decision, and certainly no final, operative and determinative decision, was made until Ms Savic made it in July 2011. The only change was effected by the decision of Ms Savic;
(c)The Department submitted, and I accept, that the “decisions prior to the decision to demote the Applicant did not confer, alter, or otherwise affect his legal rights or obligations or, if they did, that effect did not derive from the Public Service Act. Accordingly, the so-called ‘second limb’ set out in Tang was not satisfied.
Secondly, in O’Halloran v Wood, Selway J held, among other things by relying on the decision of Spender J in Hudson v Australian Telecommunications Corporation that a decision under a certified agreement was a decision under the Industrial Relations Act 1988 (Cth) and as such, Schedule 1 of the ADJR Act precluded the review of such decisions under that Act.[55]
[55] O’Halloran v Wood (2003) 75 ALD 446. Hudson v Australian Telecommunications Corporation (1990) 27 FCR 97
By parity of reasoning, the Collective Agreement in the current matter is not, as contended by Mr Kumar, an enactment under the Public Service Act, but rather an instrument under s.328 of the Workplace Relations Act 1996 (“the WPR Act”). Among other things, the Collective Agreement makes repeated references throughout its provisions to the WPR Act. As such an instrument, decisions made under it are not reviewable under the ADJR Act because of the terms of Schedule 1 of that Act.
Accordingly, I accept the Department’s submissions in relation to the source of power for the decisions in paragraphs 6 – 10 of the Amended Application as being the Collective Agreement.[56]
[56] The Collective Agreement begins at p.5 of the DBOD. The decisions and sources of power are set out at par.23 of the Department’s submissions filed 16th March 2012.
Thirdly, I repeat the point made earlier in these reasons, advanced by the Department, that the complaints made by Mr Kumar are all at such a level of generality as to render his challenges unsupportable. In their current form, all the challenges (to conduct and to decisions made) allege ‘error’ (such as ‘jurisdictional error’) but without sufficient particularity to enable the Court, or the Department for that matter, to understand the precise grounds of challenge. The Court cannot remedy such defects in the Amended Application.
Fourthly, as already stated (and on more than one occasion), Mr Kumar engaged very actively in each stage of the review process, and took every opportunity to challenge each decision. He did so having taken independent advice from his lawyers (as well as his union and its lawyers, Slater & Gordon). He clearly stated his disagreement with either or both the process undertaken and with the decisions made. Absent clearly stated grounds which specify particular legal error which the Court could then consider, the exercise proposed to this Court by Mr Kumar is, essentially, one of merits review. Absent clear legal grounds to interfere with the decision(s) taken, on the basis of the well-known authority of Attorney-General (NSW) v Quin, the Court cannot intervene.[57]
[57] Attorney-General (NSW) v Quin (1990) 17 CLR 1.
Further, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission, the High Court said (Gleeson CJ, Gaudron & Hayne JJ) (internal citations omitted; emphasis added):[58]
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[58] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21].
And in Minister for Immigration and Multicultural Affairs v Eshetu Gleeson CJ and McHugh J said, obviously in the context of a migration appeal, but which comments, in my view, have wider application:[59]
Someone who disagrees strongly with someone’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are really emphatic ways of saying that the reasoning is wrong, then they have no particular legal consequence.
[59] (1999) 197 CLR 611 at p 626 [40].
What their Honours described in Eshetu applies, in my view, to the complaints of Mr Kumar here.
Finally, for all of the same reasons (e.g. lack of sufficient particularity of error), Mr Kumar has not established that the final decision of Ms Savic, dated 7th July 2011, is tainted by any relevant error of law.[60] He has not identified what the ‘wrong question’ was that the MPC allegedly asked, or what relevant considerations it failed to consider. Nor is there any evidence of so-called “Wednesbury unreasonableness” in the decision of Ms Savic.[61] Certainly Mr Kumar has not pointed out any such evidence, other than to express his understandable disquiet with the ultimate decision, as he did throughout the process and with each of the intermediate recommendations and decisions. In my view, the comprehensive reasons provided by Ms Savic point to a clear and thorough consideration by the MPC of all claims made by Mr Kumar. No legal error has been identified by the Applicant that would warrant the Court to interference with its decision.
[60] For the sake of completeness, I accept the Department’s submission that Ms Savic’s decision in July 2011 superseded and, to the degree necessary (which is not admitted), “cured” any defects in the decision complained of in paragraph 13 of the amended application.
[61] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and ss.5(2)(g) and 6(2)(g) of the ADJR Act.
For the above reasons, the Application by Mr Kumar must be dismissed and the ancillary orders sought by the Department should also be made.
Postscript: I am compelled to pose the following questions or concerns: (a) I remain concerned, and it remains unexplained, how a person such as Mr Kumar could be employed by the Department for such a significant period of time (indeed many years), apparently without any issues regarding his performance, before any matters were raised about under-performance; and (b) how many resources (e.g. time, financial and other) have been expended on a matter such as this where, in comparative terms, the demotion has been [only] of one level (accepting that there are different grades within each level)?[62] I do not suggest that Mr Kumar is not entitled to challenge in the courts of this country decisions made in relation to his employment which affect him adversely. But in every respect, I simply wonder with some alarm, if not lament, how and why this matter was not resolved without the need to proceed to a hearing. On a cost-benefit analysis, everyone loses or has lost. Moreover, with Mr Kumar remaining in the employ of the Department, I am concerned at a ‘human or human resources level’ how an employee may be treated or even survive in an environment where he has taken action against the employer, as well as the prospect (but not the certainty) of having a [significant] costs order against him. Indeed, one can only wonder what might have been saved – including this litigation – if Mr Kumar’s request in May 2008 to be transferred had been adopted. Respectfully, while the legal result was, in my view, almost a foregone conclusion on the basis of the documentary evidence, the longer-term financial and human cost of this litigation is almost unthinkable.
[62] In relation to the efficient use of [public] court resources, see AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 28 June 2013
0
26
23