Lohse v Arthur (No 2)

[2009] FCA 1077

FEDERAL COURT OF AUSTRALIA

Lohse v Arthur (No 2) [2009] FCA 1077

MICHAEL JAMES LOHSE v IAN ALLAN ARTHUR, GEOFF MCKINNON and JANET COPPIN

ACD 42 of 2008

GRAHAM J
15 SEPTEMBER 2009
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2008

BETWEEN:

MICHAEL JAMES LOHSE
Applicant

AND:

IAN ALLAN ARTHUR
First Respondent

GEOFF MCKINNON
Second Respondent

JANET COPPIN
Third Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	15 SEPTEMBER 2009
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The respondents’ application for an adjournment be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2008

BETWEEN:

MICHAEL JAMES LOHSE
Applicant

AND:

IAN ALLAN ARTHUR
First Respondent

GEOFF MCKINNON
Second Respondent

JANET COPPIN
Third Respondent

JUDGE:	GRAHAM J
DATE:	15 SEPTEMBER 2009
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. An application has been made for an adjournment by counsel for the respondents. It has been submitted, firstly, that an issue is now raised for the first time in relation to the findings that were made by the first respondent under s 13(3) of the Public Service Act 1999 (Cth) (‘the Act’). That subsection provided:

   ‘13(3)An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.’

   It is said that there is a statutory construction issue as to whether or not there are two separate obligations that arise under subsection (3), which may be dealt with separately. 

2. That is a matter which does not, in my view, warrant an adjournment.  The experience and competence of counsel appearing for the respondents is such that it ought to be possible to handle the matter without the need for an adjournment. 

3. The next issue is whether or not an adjournment should be afforded to allow the respondents to address the possibility of further evidence on the question raised by ground 1.9 which has been added today upon the filing of a second Further Amended Application for Judicial Review.  The question arises in the following circumstances. 

4. The ‘Secretary’s Procedures’ promulgated under s 13(3) of the Act for determining breaches of the APS Code of Conduct prescribe that one of the steps should be as follows:

   ‘3.If the employee makes a written statement within 7 days (or, if allowed, any longer period) of being given the opportunity to do so, the employee must also be given the opportunity to make an oral statement in relation to the suspected breach.’

   (emphasis added)

5. The obligation to give an opportunity to make an oral statement seems to be predicated upon the employee having first made a written statement within the prescribed time, or an extension thereof that may have been granted. 

   The case which the applicant now wishes to raise is an alleged failure to comply with the requirement in respect of his being given an opportunity to make an oral statement in relation to the suspected breach, after the written statement in response to the provision of details of the suspected breach, was provided by him. 

6. An adjournment is sought so as to allow the possibility of there being evidence of an invitation to attend or to make an oral statement having been afforded to the applicant after he provided his written statement on 11 March 2008, to be explored. 

7. The terms of the report of the first respondent of 30 March 2008 and, in particular, pages 22 and 23 thereof are in my view quite inconsistent with any possibility of an invitation having been extended to the applicant to make an oral statement in relation to the suspected breach following the provision of his written statement of 11 March 2008, referred to by the first respondent on page 23 of the report.  I suppose there is always a theoretical possibility that such an invitation was extended, but it does not seem to me in the light of the terms of the report in the circumstances of this case, to warrant an adjournment. 

8. The next point made is that there has been no indication in the case of the applicant as formulated, that there would be any reliance placed upon the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (‘Applicant VEAL’). It seems to me that the particulars provided by the solicitors for the applicant to the solicitors for the respondents on 24 August 2009 do suggest that an Applicant VEAL submission would be put in relation to what is referred to in the Amended Application, paragraph 1.3, which relevantly provided:

   ‘1.3The first respondent did not follow the procedures required by law to be observed in connection with the making of the decision.’

9. The solicitors for the respondents asked whether the applicant was relying upon any matter other than the matter specified in paragraph (1)(a)(i) of the Amended Application for this ground of review.  If so, the applicant was asked to inform the solicitors for the respondents of ‘what other matters are relied upon?’  The response was:

   ‘There are many matters that were adverse to the Applicant that came up in the records of interview of Sasha Barclay and Andrew Heslop (sic) that were NOT put to the Applicant.’

10. It seems to me that this response was intended to make clear that an argument founded upon the principles stated in Applicant VEAL would be relied upon.  In the circumstances I do not think that the failure to expressly telegraph an intended reliance upon Applicant VEAL would justify an adjournment of the proceedings. 

11. The fourth matter raised is that the duty to investigate matters raised in Mr Lohse’s response of 11 March 2008 was not clearly specified. 

    The applicant relies upon paragraph (c) appearing in response to the request for particulars concerning paragraph 1.3 of the Amended Application, in which the solicitors for the applicant said:

    ‘The many matters of contention detailed in the Applicant’s response, dated 11 March 2008 were not investigated by the First Respondent.’

    This sentence does seem to me to indicate, at least impliedly, that the applicant was intending to argue that a decision-maker in the position of the first respondent was required to investigate and inquire into matters that may have been advanced by Mr Lohse in his response of 11 March 2008, to which reference has been made. 

12. In the circumstances I do not think that it is appropriate to order that the hearing of the matter be adjourned. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        23 September 2009

Counsel for the Applicant:	F J Purnell SC
Solicitor for the Applicant:	Porters Lawyers
Counsel for the First, Second and Third Respondents:	J S Gleeson
Solicitor for the First, Second and Third Respondents:	Clayton Utz

Date of Hearing:	15 September 2009
Date of Judgment:	15 September 2009