Manikantan v Centrelink
[2008] FMCA 716
•2 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANIKANTAN v CENTRELINK | [2008] FMCA 716 |
| ADMINISTRATIVE LAW – Review under the Administrative Decisions (Judicial Review) Act 1977 – application for summary dismissal – whether decisions the subject of complaints may be properly characterised as decisions under an enactment – whether decisions are final, operative, or determinative – whether certain remedies are permitted – whether adequate alternative remedies were available to the applicant – whether decisions fall within the exception contained within Schedule 1 of the Act – whether applicant properly aggrieved by decisions – application out of time – whether an extension of time should be granted to the applicant – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1), 6(1), 10, 16, Schedule 1 Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.3(1), s.46PE, s.46PH, s.46 PO, 46 PO(1), 46 PE Disability Discrimination Act 1992(Cth) Judiciary Act1903 (Cth), s.39B Public Service Regulations 1999 |
| Re Park Oh Ho v the Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104 Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 Griffith University v Tang (2005) 221 CLR 99 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Australian National University v Lewins (1996) 68 FCR 87 McManus v Scott Charlton (1996) 70 FCR 16 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Aala [2000] HCA 57; (2000) 204 CLR 82 Western Excavating v Sharp [1978] 1 QB 761 Easling v Mahoney Insurance Brokers [2001] SASC 22 Damien Haining v Deputy President Drake & Ors [1998] FCA 1168 |
| Applicant: | KARIADATH PANANGAT MANIKANTAN |
| Respondent: | CHIEF EXECUTIVE OFFICER OF CENTRELINK |
| File Number: | SYG 3567 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 23 August, 2, 3 & 10 October 2007 |
| Date of Last Submission: | 10 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr J G Renwick |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application made on 1 December 2006 is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The applicant pay the respondent’s costs as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3567 of 2006
| KARIADATH PANANGAT MANIKANTAN |
Applicant
And
| CHIEF EXECUTIVE OFFICER OF CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Mr Kariadath Panangat Manikantan (“the applicant”) has made an application to this Court on 1 December 2006 pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”) seeking judicial review of various decisions said to be made by his former employer (“Centrelink”) during the course of his employment which culminated in the termination of the applicant’s employment.
On 2 October 2007 I made an order that the reference to the respondent be amended to read: “Chief Executive Officer of Centrelink.” This reflects the office holder in whose name relevant decisions concerning the applicant and his employment were made. [I will, however, for ease refer to the employer generally as “Centrelink” in this Judgment].
The issue now before the Court is the consideration of the respondent’s application that the matter be dismissed summarily. [See notice of motion of 16 August 2007].
Background
The applicant was employed at Centrelink in Canberra commencing as an ongoing Australian Public Service employee on 24 February 2003 until his employment was terminated on 28 May 2004 by a delegate of the Chief Executive Officer of Centrelink.
The applicant has put a large amount of material before the Court. In summary, he claims to be aggrieved in relation to the way he was treated by Centrelink management, supervisors, and other employees. The complaints essentially revolve around certain actions taken, and decisions made, by managers and supervisors during the period of employment (February 2003 to May 2004) which the applicant says were variously in breach of the rules of natural justice, breaches of his employment contract, involved improper exercises of power, were induced or affected by fraud, and for some, lacked a reasonable basis to found these decisions.
Evidence/ Submissions/Material
The following material has been put before the Court:
1)The application.
On its face, this is stated to be an application made under the Administrative Decisions (Judicial Review) Act 1977. [Although, I note that the applicant refers variously elsewhere to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and/or the Racial Discrimination Act 1975 (Cth). See page 6 of the application. See also paragraphs [17], [19], [22]-[23] and [26] of this judgment].
2)The affidavit of the applicant, made on 30 November 2006. This affidavit consists of, essentially, 984 paragraphs recounting the applicant’s version of what he asserts to be events relevant to his complaints. Copies of 216 documents in support are annexed. These are reproduced and contained in “Binder 1” – pages 1 to 301, and “Binder 2” – pages 302 to 703.
3)Reply filed 4 May 2007 to the respondent’s response.
4)The affidavit of the applicant, made on 19 June 2007, with annexures. This affidavit states that it seeks to address “errors” in the first affidavit. It also annexes further documents from the time of employment (Annexures 217 to 226 – pages 704 to 750).
5)The affidavit of the applicant, made on 25 September 2007 with annexures. The annexures are copies of documents identified as annexures 227 to 235 and, to a large part, are said to go to the issue of delay in initiating the current proceedings.
6)Public Service Commissioner’s Directions 1999 (“Applicant’s Exhibit 1” (“AE 1”)).
7)A document entitled: “Additional Information Sought by the Respondent” filed by the applicant on 1 June 2007, which sets out what are said to be the “decisions” that are the subject of the applicant’s complaints. In all, the applicant identifies 33 “decisions.”
8)The applicant filed an outline of written submissions on 11 September 2007 (217 typed pages).
9)Further written submissions filed on 25 September 2007 in reply to the respondent’s motion and submissions.
The Respondent has relevantly put the following before the Court:
1)The response of 20 April 2007 to the application.
2)The notice of motion of 16 August 2007.
3)The affidavit of Lisa Marie Kearney of 20 September 2007, with annexures.
4)Respondent’s Exhibit 1 (“RE1”) – being a letter dated 7 May 2007 from the respondent’s solicitors to the applicant requesting further information in relation to the applicant’s application.
5)Respondent’s Exhibit 2 (“RE2”) – being a letter dated 15 May 2007 from the applicant to the respondent’s solicitors, which categorises the “decisions.”
6)Respondent’s Exhibit 3 (“RE3”) – being the remainder of the “Centrelink Development Agreement 2003 – 2005” (see annexure “F” to the affidavit of Ms Kearney).
7)Respondent’s written outline of submissions filed 20 September 2007.
8)Respondent’s copies of legislation and authorities.
Hearing before the Court
At the hearing of the respondent’s motion, the applicant appeared in person. Mr J Renwick of Counsel appeared for the respondent.
The applicant put a large amount of affidavit (with annexures) material before the Court. Mr Renwick proposed that, bearing in mind the nature of the stage of these proceedings (interlocutory, not final), an item by item process of resolving objections would be greatly time consuming and would probably not, in any event, be of assistance to the Court given the issues to be considered.
He proposed that the Court accept all the affidavit material (including the affidavit of Ms Kearney – filed by the respondent) on a provisional basis under the Evidence Act 1995 (Cth). I could not see any utility in hearing arguments from both sides as to the admissibility of the evidence at this stage. This would also allow the applicant a better opportunity to advance the explanation of his case.
Any plain reading of the applicant’s material (including his very lengthy written submission) submitted up to the time of the hearing makes it plain that it would not be trite to describe the applicant’s view of his time at Centrelink as at least “unhappy.”
The applicant has put before the Court what can only be described as the minutiae of his working life at Centrelink. In most circumstances, this would not present any particular concern for the Court beyond the need to carefully read a very large amount of material. The difficulty during the period for directions before this Court, and over some months in this matter, was to obtain a clear and concise articulation from the applicant the grounds of complaint under the Act, and relevant particulars to those grounds.
The applicant’s approach appeared to be that by placing a very large amount of material before the Court (well over one thousand pages to his annexures to three affidavits, and well over two hundred pages of typed submissions), by making mere references to a large number of Commonwealth Acts, and by making broad assertions to having been subjected to discrimination, the Court would engage in a wide, far-ranging inquiry into Centrelink management and personnel practices during the period of his employment, and that the Court would articulate for him how this material could be converted into breaches of the various provisions of these Acts.
It was for this reason, and for the reason of enabling the matter to proceed in a constructive manner, that I agreed with the respondent and made an order at one of the directions hearings (Order 1 of 18 May 2007) that the applicant file and serve proper particulars to identified decisions (in the context of the Act) by which he said he was aggrieved.
The result was the filing of the document: “Additional Information Sought by the Respondent” on 1 June 2007. This document certainly goes a long way to giving some shape to the applicant’s complaints.
But it is important to note that even with this document, the applicant still sought to press a wide-ranging inquiry under what must be said to be nearly every possible piece of Commonwealth legislation that deals with discrimination and workplace conditions. See item “h” at page 25:
“h. Other associated Acts include but not limited to:
· Sex Discrimination Act 1984;
· Racial Discrimination Act 1975;
· Public Service Regulations 1999;
· Disability Discrimination Act 1992;
· Safety, Rehabilitation and Compensation Act 1988;
· Workplace Relations Act 1996 (Work Choices Act 2006);
· Human Rights and Equal Opportunity Commission Act 1986;
· Equal Employment Opportunity (Commonwealth Authorities) Act 1987;
· Occupational Health and Safety (Commonwealth Employment) Act 1991.”
By the time of the drafting and filing of this document, the applicant would have received the respondent’s “Response” filed on 20 April 2007.
Paragraph [3] of the response is highly relevant to what the applicant is seeking to do. It states:
“If the applicant is purporting to rely on the Human Rights Jurisdiction of this Court, this Court does not have such jurisdiction as no notice of termination has been issued by the President of the Human Rights and Equal Opportunity Commission, nor, indeed, is it apparent that any complaint has been made to the Commission by the applicant as is required by s.46PO of the Human Rights and Equal Opportunity Commission Act 1986.”
It is clear that under the Human Rights and Equal Opportunity Commission Act1986 (Cth) (the “HREOC Act”) this Court’s human rights jurisdiction is, relevantly, the jurisdiction to hear and determine a complaint terminated by the President of the Human Rights and Equal Opportunity Commission under s.46 PE or s.46 PH of the HREOC Act, where the President has given notice to any person under subsection 46 PH(2) in relation to the termination.
Instead of addressing this issue relevant to the Court’s jurisdiction, the applicant’s response was, without particularity, to press this Court to hear the matter or make findings pursuant to the HREOC Act, in circumstances where there is no evidence before the Court, that the President of the HREOC has given any notice to him.
Further, the applicant’s “Reply and Submissions” of 25 September 2007 (not to be confused with the “Outline of Submissions” of 11 September 2007) reveals not only the applicant’s difficulty in accepting the legislative limits imposed on what he seeks to do, but also his attempts to argue and express this limitation in terms of a denial of justice, and to further enhance his sense of grievance.
Paragraphs [12], [13] and [14] of this document are also particularly instructive as to the applicant’s approach:
“12. The applicant submits that at paragraph 2.9 in its outline [14], the respondent seems to mix-up a few other things as facts. The applicant has submitted reasons for the delay in getting his application filed at the FMC in his submission [13] fairly extensively. The jurisdiction then invoked was not only the ADJR Act as the respondent claims, but the HREOC Act as well. The application face sheet bears testimony to this as does the additional sheet [page printed as 6 of the Application [10]] titled “Information Sheet Regarding Alleged Discrimination”, which is required only if there was an allegation of unlawful discrimination according the instruction on the Application Cover sheet page 2 under the heading ‘Final Orders Sought by the Applicant’.
13. However, the officers of the registry did not accept the application with both the jurisdictions ticked in their respective check boxes and asked the applicant to remove HREOC Act [paragraph 933 in the Outline [13]] stating that they could accept an application with that jurisdiction only after a termination of the case from the Commission. The applicant had to oblige, lest his application could have been rejected once again but consciously chose to keep the additional sheet in place to get past. The applicant submits that what happened at the registry appears to be another testimony to the apparent barriers and in turn denial of access to justice that he had to endure so far, perhaps close to being subjected to a breach of Article 6 of ICERD [paragraph 772 in the Outline [13]].
14. The applicant had always maintained that his matter was a breach of his human rights at its core and that was the way he had represented his matter to all legal practitioners that he approached for help and representation [Annexure 231 pages 1002 – 1022) before and after filing his application at the FMC. Unfortunately due to the barriers that he found to get his matter resolved satisfactorily at the antidiscrimination avenues, he had to capitalise on the available jurisdiction that he could access albeit with great difficulty, with a view to getting in front of the Court first and then make use of the provisions as best he could. This approach has been clearly articulated at paragraph 11 in the applicant’s reply [11].”
The applicant plainly saw, and continues to see, the actions of staff at this Court’s registry, not in terms of acting consistently with relevant legislation and processes, but a “denial of access to justice,” further fuelling his general sense of grievance.
Nor does HREOC appear to escape what must be said to be the applicant’s inability to see actions done by others, which appear to thwart his own desires, as other than being miscarriages of justice, or acts of discrimination. (I return to this issue below).
For example, at paragraph [11] of the applicant’s reply and submissions of 25 September 2007 he states:
“11. The applicant wonders whether respondent can cite [paragraph 2.8 in its Outline [14]] the miscarriage of justice that was effected by the HREOC [paragraphs 892 - 907 the Applicant’s Outline [13]] as a reason in its favour !”
Further, the applicant’s allegation that: “what he had to endure so far, perhaps close to being subjected to a breach of Article 6 of ICERD” (the International Convention on the Elimination of All Forms of Racial Discrimination) – see paragraphs [765] to [773] of the applicant’s: “Outline of Submissions” of 11 September 2007.
The applicant seeks to link his grievances in part to the provisions of this Convention and to the Racial Discrimination Act 1975. The applicant may seek to characterise what he says occurred to him, at Centrelink (and for that matter, at this Court’s registry) as either being “perhaps close,” to, or even in breach of, relevant provisions. The difficulty for the applicant is that even if the Court were to have jurisdiction to hear such a complaint under the HREOC Act, and to seek to access relevant provisions in the Racial Discrimination Act (Part 11 or Part 11A), there is nothing in all of the great amount of material that he has submitted to show that any of the relevant employees at Centrelink (involved in the matters complained of by the applicant) acted in a discriminatory way towards the applicant for reason of his race, colour, or national or ethnic origin.
In all, therefore, the hearing of the respondent’s motion proceeded on the basis that the evidence from both sides was admitted provisionally to enable both sides to clearly articulate their position and to develop their arguments at the hearing. The parties were expected to establish the relevance of the evidence to the issues before the Court during oral submissions.
The Scope of the Application
The first issue is to identify exactly what relief is sought by the applicant.
While the applicant has sought in subsequent submissions to cast a wide net over many areas covered by Commonwealth legislation, what remains is that in his application to this Court, he has invoked the Administrative Decisions Judicial Review Act (“the Act”) (see the face of the application, and pages 1 to 5 inclusive).
The applicant did attempt to invoke the HREOC Act in his application. The circumstances involving what the applicant says occurred at the Court registry at the time of filing the application are already set out above.
The applicant explains (see [12] of submissions of 25 September 2007) that his application should be seen as involving jurisdiction not only under the ADJR Act but also the HREOC Act “as well.” He points to the deletion of the reference to the HREOC Act, on the face of the application, which he says was forced upon him, and further points to the last page attached to the application headed: “Information Sheet Regarding Alleged Discrimination” which he seeks to link to a claim of “unlawful discrimination” on the part of “Centrelink” and to his seeking “an order declaring that Centrelink has subjected me to unlawful discrimination, on the basis of relevant acts such as Human Rights and Equal Opportunity Commission Act 1986 and/or Racial Discrimination Act 1975.”
The applicant misunderstands, understandably given that what he often put to the Court was his layperson, limited knowledge of the law, or perhaps has purposely sought to misconstrue (given his evident desire to secure a wide ranging investigation into Centrelink management and personnel practices) the Court’s power, role and jurisdiction.
In his “Reply and Submissions” of 25 September 2007, the applicant asserts (at [14]) that he: “had always maintained that his matter was a breach of his human rights at its core.” He refers to difficulties he faced in getting: “his matter resolved satisfactorily at the anti-discrimination avenues.” He then explains that he had to: “capitalise on the available jurisdiction that he could access ...”
This is explained further with reference to his earlier submitted document: “Reply” of 4 May 2007. At [11], in which the applicant states:
“My first and foremost objective is to establish the illegalities [on the part of Centrelink] through a judicial review and once those illegal decisions are recognised by the court to be set aside, I would seek the court’s permission to further explore the effects of those decisions with respect to discrimination, victimisation, persecution, defamation, and all other forms of abuse of power within the meaning of the respective and relevant acts towards concluding the matter completely and finally.”
The applicant’s approach is plainly misconceived. This Court does not sit as a “Royal Commission” with powers to investigate management practices in Centrelink, nor can the Court conduct a judicial review “in the abstract” and declare decisions made by Centrelink employees or the Chief Executive of Centrelink to be “illegal,” nor even to declare actions “illegal” within the meaning of any Act that the applicant cares to mention.
For the applicant’s benefit, I note that this Court’s jurisdiction derives relevantly from Acts of the Commonwealth Parliament. The proper processes of review of actions taken by Centrelink before this Court requires the applicant to identify the jurisdiction of the Court that he seeks to invoke, to articulate his complaints within that jurisdiction, and to put evidence before the Court in support of his complaints.
While the Court adopted a liberal attitude towards the unrepresented applicant during the course of this matter proceeding before this Court, what ultimately remains is that some jurisdiction must at first be identified as the context within which the applicant’s complaints may be properly considered. Nor (with the HREOC Act in mind) can the Court assume jurisdiction to conduct the investigation that the applicant is seeking, when by express terms relevantly in that legislation, the applicant’s circumstances do not fall within the jurisdiction given to this Court.
The applicant seeks to circumvent this process by submitting that once the Court has made findings of “illegality,” then he will seek leave to amend his application in light of these findings (see the “Reply” at [21] and [22] and the submissions of 25 September 2007 at [16]).
In all, to the extent that the applicant seeks to rely on the HREOC Act and the Racial Discrimination Act, this Court’s jurisdiction relating to complaints of unlawful discrimination under the HREOC Act and the Racial Discrimination Act (see HREOC Act s.3(1) “unlawful discrimination” and the reference at (b) to Part 11 of the Racial Discrimination Act) requires a relevant complaint to have been terminated by the President of the HREOC and a notice to have been given to the relevant person in relation to the termination (see ss.46 PO(1), 46 PE, 46 PH of the HREOC Act.)
There is no evidence before the Court that any such termination or notice has been given to the applicant. The evidence from the applicant is to the contrary and that no such events have occurred. This Court, therefore, has no jurisdiction to hear any such complaints and it would be futile in this regard to allow any such complaints to proceed to a final hearing. To the extent, therefore, that the applicant claims to have sought to rely on the HREOC Act and the Racial Discrimination Act, these complaints would not succeed.
The explanation as to there being no certificate pursuant to s.46 PO of the HREOC Act before the Court can be seen in the material provided by the applicant himself.
Annexure 215 to the applicant’s affidavit of 30 November 2006 (pages 679-697) set out copies of email communications between the applicant and a Complaints Information Officer with the HREOC (21 June 2004 to 21 July 2004). This correspondence reveals that the applicant sought to put his complaints about discrimination at Centrelink to the HREOC. In that part of his complaint (reproduced at page 693) the applicant states:
“I believe that I have been treated unfairly and harassed/persecuted further when I expressed my concerns through the chain of commands within Centrelink for resolution, without adequately investigating and/or attempting to resolve the issues inclusively.”
The applicant was advised by the HREOC representative (at page 690):
“You should note that it is not enough that a person is unhappy with the treatment that they have received and that he or she has a disability, or is a particular age, race or sex. You would need to be able to show a connection between that treatment and your age, race, sex or disability.”
Further, (at page 688) the applicant was advised:
“As it does not appear that your matter falls within one of the above stated grounds, this Commission is unable to assist further, however it appears that the issues you have raised may be more closely construed as unfair dismissal. Should this be the case, I suggest you may wish to contact the Australian Industrial Relations Commission for further advice. Contact details are as follows …”
The remaining emails appear to indicate the applicant’s reluctance or inability to accept the advice that he had been given by the HREOC. But, interestingly, given his application now, that he claims a denial of a breach of the rules of natural justice, including such a breach in relation to the decision to terminate his employment (see Order (1) sought by the applicant in his application), the applicant told HREOC on 12 July 2004 (see the email reproduced at pages 683-684):
“As explained earlier, my complaint is NOT that I have been dismissed from service unfairly, but the fact that I have been treated unfairly for over a year, culminating in dismissal. An inquiry will demonstrate the extent of discrimination with respect to the published policies, processes and directions of Centrelink in the Australian Public Service in general, and the resulting infringement of my rights as an Australian Citizen.”
I note that it appears that the applicant’s claims before the Court now seek, in part, to address the circumstances which he felt should have been, and were not properly, addressed by the HREOC (at page 681 in an email of 16 July 2004 to the HREOC) the applicant says:
“It is difficult to fathom that the Commission would helplessly stand by, when a person is put through similar to what I have been through by an employer, only because I am unable to ‘speculate’ on the employer’s reasons or motives for doing so.”
The applicant continues:
“As you might be doing only your duty to protect the Commission’s time from non-legitimate complaints, I am not sure how ‘discussing this issue with you further’ is going to change the status. However, I would appreciate if you could let me know how I could escalate this further up for seeking the discretionary powers of the Commission as required in this regard.”
Ultimately, on 21 July 2004 (at page 680), the Complaint Information Officer advised the applicant:
“Please refer to my previous email (which is below), there is nothing further I can add at this stage. I suggest you seek legal advise [sic] with regards to your matter. Please note your comments have been noted, placed on file and your file has now been closed. No further email correspondence will be entered into in relation to the same subject matter.”
The large volume of material that the applicant has provided in relation to what he says occurred to him during the course of his employment with Centrelink reveals the applicant’s inability, or unwillingness, to accept the reality of a situation when matters do not go to his liking. This observation is derived from the examination of the applicant’s material put before the Court and is evident with reference to matters discussed below. This inability also appears to be evident in his dealings with the HREOC.
I note also, by way of observation, that even after all the material he has placed before this Court now, the applicant has still not been able to establish a link between a recognizable ground, or grounds, for discrimination in these circumstances. The applicant appears to be under some misapprehension that the so-called discriminatory conduct and action which he alleges against Centrelink, can be made out without any link between the allegation and his circumstances. Rather, it is left as some general complaint to be self evidentially deducted as the only logical explanation for what has occurred. Nor does the applicant advance a reason for this claimed harassment and persecution. Is it because of his ethnicity or otherwise? He does not plainly say so, and did not say so to the HREOC on what he has put before the Court.
In relation to any other Acts, not in any event specified in the application, but to which he makes general reference in subsequent material, the applicant has not sought to amend his application. His stated intention to seek such an amendment after consideration of his allegations in the abstract by this Court is, for obvious reasons as set out above, misconceived. No amended application in any event has been proffered or relevant leave sought by the applicant.
What remains is that the applicant properly seeks review solely on the basis of the ADJR Act. This is confirmed at [13] of his Reply of 4 May 2007:
“As mentioned above, my application is for an order of review of Centrelink’s decisions under the Administrative Decisions Judicial Review (ADJR) Act 1977. The decisions that I seek judicial review are administrative in character, taken by commonwealth officers deriving authority under eligible Commonwealth laws and enactments thereof, particularly the PS Act 1999, and therefore reviewable under ADJR Act 1977. Section 8 of the ADJR Act confers jurisdiction to the FMC to hear such an application and web site clearly says that it can hear applications under section 5 subsections a-J.”
Although I note that at [14] the applicant does refer to: “other acts as appropriate,” for the reasons already set out above, the application put before the Court by the applicant, to the extent that it makes reference to the HREOC Act and Racial Discrimination Act, this Court does not have jurisdiction to hear any such complaints in the circumstances as put forward by the applicant, nor is it appropriate for the Court to conduct a wide ranging inquiry to see if there is conceivably any other provision of any other Commonwealth legislation that may be of use to the applicant.
Orders Sought
The orders sought by the applicant are:
“ 1Quashing all illegal administrative actions against me including the decision to terminate my employment, all sanctions and all unfounded performance allegations/reports;
2Directing Centrelink to confirm my employment after probation effective from no later than 24 May 2003 at an appropriate level and salary, commensurate to my credentials according to the instruments current at the time of my probation including the policies, processes and directions;
3 Directing Centrelink to pay me wages and arrears in accordance with paragraph 2 above, taking into account all the revisions of remunerations that occurred so far and/or any agreement(s) entered into as a result of these orders with effect from the confirmation date;
4 Directing Centrelink to tender me a written apology and to undertake all lawful measures in its power to undo the damages/disadvantages to my professional reputation and career advancement, by improving employment outcomes through appropriate programs and policies established under EEO;
5 Directing Centrelink to pay me adequate monetary compensation for the hardship that my family and I had to endure so far because of Centrelink’s conduct, negligence and its direct and indirect liabilities arising from its actions and inactions, with respect to cases of mistreatment, persecution and/or victimisation attempts against me;
6 Directing Centrelink to pay exemplary/punitive damages by the highest amount allowed under the constitution so as to prevent similar conduct happening again in the future against any other employee(s) at Centrelink and/or at any other government agencies; and
7 Any other order or orders that the court deems fit for fair outcomes of relief and redress;
under the Administrative Decisions (Judicial Review) Act 1977 – Sect 5 sub-sections a, b, e, f, g, h, and j and any other applicable law(s) on the basis, also detailed further in the affidavit …”
I note the following:
1)Order (1) seeks the “quashing all illegal administrative actions” against me including the decision to terminate my employment …”
The respondent accepted, to the extent that there were decisions in respect of which the Court had jurisdiction, that the Court could make such an order in relation to any such decision.
2)The respondent, however, submitted that the Court was not able to make the Orders numbered (2) to (7) as sought by the applicant.
Mr Renwick’s submission is that, with reference to s.16 of the Act, which relevantly sets out the powers of this Court in respect of an application for orders of review, none of the proposed orders for relief are permitted by what is set out at s.16(1).
I agree with Mr Renwick in this submission, and note, in particular, to the extent that the applicant seeks something further than what is set out in proposed Order (1), that it is only proposed Order (1), which can be seen to flow from what is set out as the powers of this Court at s.16. Proposed Order (2) proposes that the Court directs Centrelink to confirm the applicant’s employment after probation effectively at an appropriate level and salary: “commensurate to my credentials.” Such an order is not within the scope of what is set out in s.16(1). This Court does not have power to conduct public service employment recruitment exercises and to make orders consequent on assessment of an applicant’s credentials.
Proposed Order (3) seeks a direction to Centrelink to pay wages in arrears. This may be a consequence of what occurred, or may occur, following any order pursuant to proposed Order (1). Any reinstatement of the applicant to employment may also include compensation of this kind. But on its own, without the operation of any such order, this is not a matter about which this Court can separately make an order. Nor does this Court have power to direct Centrelink to tender: “a written apology” to the applicant pursuant to the Act.
Further, to the extent that Orders (5) and (6) would require the payment of damages by Centrelink to the applicant, I agree with Mr Renwick that the damages that the applicant seeks are not available to him pursuant to any breaches of the Act that may be made out. In this regard, see Re Park Oh Ho v the Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104.
· Per Sweeney J at [114.3]:
“However, damages are not a remedy of judicial review and s.16 of the ADJR Act, which specifies the orders which the Court may make in its discretion when making an order of review in respect of a decision, does not include an award of damages.”
· Further at 114 .4:
“An applicant who merely establishes a ground of review under s.5 of the ADJR Act is not thereby entitled to an award of damages. The remedies of judicial review are those in the nature of certiorari, prohibition, mandamus, injunction and declaration, as s.16 of the ADJR Act makes plain.”
· See also Morling J at 126.7:
“The remedies to which an applicant for an order of review may be entitled are referred to in s 16(1) of the Judicial Review Act. Those remedies do not include the making of an award of damages
…
The award of damages has never been held to be a remedy available in proceedings brought by way of judicial review …”
· See also per Foster J at 134.3:
“I am quite satisfied, for the reasons given by the trial judge, that damages are not capable of being awarded within the context of an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977. Section 16 of that Act simply makes no provision for such a remedy.”
·See also Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at [11]:
“In that regard, it is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial "review" of administrative decisions and actions.”)
I also note that proposed Order (7) sought by the applicant relies on the other orders being made out. Therefore I saw this proposed order as being consequential upon the applicant being successful in establishing a breach of s.5 or s.6 of the Act in relation to the decisions and conduct by which he now says he is aggrieved.
Legislation
Relevant to the disposition of this matter are the following provisions of the Act, which it is useful to set out in full to assist in the subsequent consideration of the applicant’s complaints:
“SECT 5
Applications for review of decisions
(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 decisions 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 authorised 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 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 is 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 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 exercise 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 particular fact, and that fact did not exist.
6 Application for review of conduct related to the making of decisions
(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 had 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 authorised 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 has 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 a 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 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 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 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 the rule or policy without regard to the merits of the particular case;
g) an exercise of power that is so unreasonable that no reasonable person could have so exercise 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 and 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 could 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 3 provides:
“3. Interpretation
(1) In this Act, unless the contrary intention appears:
…
“decision to which this Act applies” means a decision of an administrative character, 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.
Relevantly, Schedule 1 lists the Workplace Relations Act 1996 as one of the Acts in Schedule 1.
“ (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 any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.”
Section 11:
“11. Manner of Making Applications
(1) An application to the Federal Court or the Federal Magistrates Court for an order of review:
…
(c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
...
(3) The prescribed period of the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after…”
Section 16:
“16. Powers of the Federal Court or the Federal Magistrates Court in respect of applications for order of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make either or both of the following orders:
a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing of which the court considers necessary to do justice between the parties;
(4) The Federal Court or the Federal Magistrates Court may at any time, of its own motion or on the application of any party, revoke, vary, suspend the operation of, any order made by it under this section.”
Department’s Submissions in Support of the Motion
With reference to the decisions (and conduct) identified by the applicant in the: “Additional Information Sought by the Respondent” as being the decisions in respect of which the applicant seeks review pursuant to the Act, the respondent, in support of its motion for summary dismissal, puts forward the following:
1)Many of the decisions complained of are “decisions” made under the Workplace Relations Act, and not under the Public Service Act 1999 (Cth), as asserted by the applicant. Therefore, even if what the applicant complains of were to be classed as “decisions,” they would fall within Schedule 1 of the Act and, accordingly, would not be susceptible to review by this Court.
2)Some of the “decisions” were not made a under an enactment in the sense described by the High Court in Griffith University v Tang (2005) 221 CLR 99 (“Tang”).
3)Other than for three exceptions, the “decisions” complained of are not final, operative, or determinative decisions as understood within the meaning of the Act.
4)Where there is jurisdiction, there is, in fact, no merit because, in any event, there were adequate alternative remedies.
5)Under the Act, a 28 day time limit applies. The applicant has not made his application to the Court within the 28 day time limit. That a lengthy delay has occurred, and that the unexplained nature of this delay is relevant to the Court, in either refusing to grant an extension of time, or that the case, in any event, that in the circumstances the application should be struck out.
Authorities Relied on by the Respondent
In Tang, the applicant was a student who had been excluded from her PhD candidature with the University. The issue before the High Court, ultimately, involved whether the decision to exclude the applicant (who was the respondent before the High Court) was “a decision of an administrative character made ... under an enactment.” (s.4 of the Judicial Review Act (Qld)). With relevance to the issue before the Court now (see Tang at [2] to [3]), the issue before Court was whether the decision to exclude the applicant was a decision “under an enactment.” (relevantly being the Griffith University Act 1998 (Kew)) - (see [5] of Tang).
I note that in relation to the “preferred construction” of: “the decision of an administrative character made...under an enactment” (see [78]) per Gummow, Callinan and Heydon JJ, the Court said:
“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. Thus, in Lewins, a decision not to promote to Reader a member of the staff of the Australian National University was not “made under” the Australian National University Act 1991 (Cth) (“the ANU Act”). Lehane J explained:
“In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one 'to employ staff'. Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them - except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned.”
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.
83. To the extent that the Federal Court decided otherwise in Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd, that case and decisions relying upon it should be regarded as having proceeded on an incorrect interpretation of the ADJR Act.”
In particular, the respondent has referred the Court to [89]:
“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.” (See also Tang at [90]).
The respondent’s position, therefore, is that much of what the applicant characterises as “decisions,” in respect to which he seeks review, were not decisions made under an enactment, as described by the High Court in Tang. Further, that despite the applicant’s assertion that many of the decisions, if not all, were made under the Public Service Act, they were, in fact, made under the Centrelink Certified Agreement, which meant that they were made under the Workplace Relations Act, which is one of the Acts found in Schedule 1 to the Act, and is therefore excluded from this review.
The respondent also submits that the decisions complained of by the applicant are not final, operative, or determinative decisions, except in three instances. The other decisions of which the applicant complains are about management style rather than a “final or operative decision,” as explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“ABT v Bond”) at 337 per Mason CJ, with whom Brennan and Dean JJ agreed. In the context of the meaning of “decision” as it is used in the Act (see at p 335) the Court at 337 said:
“The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that 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.”
The respondent also asserts that, even where the Court has jurisdiction, there may still be no merit in the applicant’s complaint because there may have been, in any event, adequate, alternative remedies available, and submits that a matter may be struck out, even if a ground of review is in fact made out, if relief would not ultimately be granted. In this regard, the respondent relies on McGowen v Migration Agents Registration Authority (2003) 129 FCR 118. That is, that the grant of relief pursuant to s.16 would be regarded as futile (see in particular at [47], [49] and the application to the facts in the case at [57] to [77]).
In relation to the timing of the application before the Court now, relative to the time of the making of the “decisions,” the respondent submits that the “decisions” were between three years and nine months and two years and six months outside the 28 day time limit set by s.11 of the Act. The respondent submits, while acknowledging that the time limit is a presumptive time limit, and that extensions of time are often given, that (with reference to, and applying the principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments”)) and in view of the affidavit evidence of Ms Kearney, the Court should not extend the 28 day time limit, or in the alternative or in addition, should not grant the applicant’s request to extend the time as, amongst other things, there is no satisfactory explanation put before the Court for the delay.
The Applicant’s Position
The applicant’s position in opposing the respondent’s motion (the applicant’s response) will be dealt with specifically as relevant and as arises in the consideration below in relation to each “decision.” To the extent that the applicant’s submissions made reference to various authorities, I did not see those authorities as directly challenging the propositions set out above. The applicant’s approach, as referred to above, is in part misconceived to the extent that he seeks to rely on propositions relevant to avenues of review not available to him in proceedings of this type.
The “Decisions” by Which the Applicant Says He is Aggrieved
I will deal with each of the applicant’s instances of what he says are “decisions,” the subject of the review before the Court now, in the order as presented in the applicant’s document: “Additional Information Sought by the Respondent,” noting that his written submissions are set out in a different order. For ease of reference, I have included the code identifier used by the applicant in his document.
“Decision 1 - R.1: Decision to place at the lowest level of the advertised position denying credit for previous roles, responsibilities and level of experience from outside APS.”
The applicant asserts that this is a decision which he contests with reference to s.5(1) of the Act and in particular, each of subsections (a), (b), (c), (d), (e), (f), (g), (h) and (j).
The background to this matter is set out in the applicant’s submissions at paragraphs [405] to [426]. The applicant’s complaint is that when he applied for, was interviewed for, and was offered the position of employment with the Centrelink, and ultimately received on 19 February 2007 a formal offer of employment (dated 17 February 2003), he was placed at the lowest level of salary applicable to that position. I understood that the salary for the position encompassed an incremental range within which a salary could be payed to the incumbent.
The applicant’s complaint is that in doing so, the largely unknown Centrelink employee who made this decision, denied the applicant acknowledgement and credit for his employment experience, which he describes as “broad based” in the, presumably relevant, “industry, government and academia put together.” He also asserts that he had “good academic credentials.” (For reference to the unknown decision maker, see paragraph [413] of the applicant’s submissions).
The relevant documents are set out at annexure 15 to the applicant’s affidavit of 30 November 2006 (at pages 76 to 81 inclusive). At pages 77 and 78, a letter dated 14 February 2003 is reproduced. It is addressed to the applicant and is plainly an offer of employment with Centrelink. The offer was said to be: “subject to … satisfying certain pre-employment checks.” The applicant appears to have satisfied these checks, and at annexure 16 (at page 83) there is a copy of an email sent by the applicant to a “Mr Hughes” at Centrelink dated 16 February 2003. The applicant advises that he appreciated: “your advice to negotiate the conditions of employment.” He put forward, in relation to the “commencing salary,” a number of matters relating to his experience and qualifications, which he said: “may be helpful.” Ultimately, and relevantly, the applicant concludes with: “I look forward to the formal offer with specific details ...”
At annexure 17, the applicant provides a copy of a letter to a “Ms Lockwood,” who appears to be a member of Centrelink’s Human Resources department (at page 85), where he concludes with: “I look forward to receiving your confirmation of the offer with full details of the engagement ...” At annexure 19 (at pages 88 to 91) is reproduced a letter dated 17 February 2003, confirming the applicant’s employment with Centrelink. This letter notified him of his “annual commencing salary of $59,998” and that his “engagement will take effect from the date on which you commence duty which is expected to be 24 February 2003.” The letter also attached a copy of the instrument of engagement (see page 91), which is the formal instrument of engagement under s.22 of the Public Service Act.
The applicant’s position appears to be that relevant material available to him led him to understand that his starting salary could be somewhat in advance of what was ultimately provided, and that he had some expectation following discussions with Mr Michael Hughes (who appears to have been involved in the recruitment of the applicant in some way), and that, given his skills, qualifications, and experience, his starting salary would be somewhat in advance of the base salary for the level of public service classification or “level” at which he had been engaged.
The applicant complains that the terms of his commencing salary were never discussed with him before the “decision” was taken to start him at the salary level at which he commenced (at paragraph [415]), and that while there is some uncertainty as to who made the decision, that it was quite possible that the person who purported to make the decision “did not have jurisdiction to make the decision” (see paragraphs [413] and [417]). The applicant also variously submits that the decision was induced by fraud because, he says, the commencing salary was only disclosed after the acceptance of the offer, and that the denial of his “past employment credentials” reveals that there was no evidence or other material to justify the making of the decision (paragraphs [420] and [421]). The applicant’s desire for this Court to engage in an examination of “discrimination” against him can also be seen at paragraph [426].
The applicant asserts that the Act is engaged because the decision as to his commencing salary was a decision made under the Public Service Act.
The respondent seeks to attack the applicant’s claim in a number of ways. First, that relief would not be granted (with reference to s.16 and s.10(2)(b)(2) of the Act). In relation to this decision, the respondent asserts that the applicant knowingly accepted the terms set out in the offer of employment, and therefore having accepted the offer, even if error were to be revealed, then this Court should refuse relief in these circumstances.
I have difficulty in accepting the respondent’s argument in so far as it relates to the applicant’s acceptance (on 17 February 2003 at page 85) of what was the provisional offer of employment with Centrelink made on 14 February 2003 (see annexure 15 at pages 76 to 80). While there are a number of conditions set out in that document, there is no reference to any specific starting salary. Further, given what is set out at annexure 16 at page 83 dated (16 February 2003), it is clear that the applicant (whether mistaken or otherwise) had some expectation that the commencing salary was still a matter for negotiation. There is nothing to show that the applicant was disabused of this understanding by Centrelink, as of 17 February 2003, when he acknowledged the provisional offer of employment made to him.
The respondent, however, is on stronger ground with the letter of 17 February 2003 (see annexure 19 at page 89) where the starting salary is plainly set out. That letter, and the instrument of engagement (page 91), make it clear that the starting salary was to be as notified to the applicant in those documents, and also make it clear that he had 28 days from the making of the instrument of engagement within which he could accept the engagement, otherwise the engagement would lapse. On the evidence before the Court it may be inferred that the applicant did indeed take up his engagement on the terms as notified in both the letter of 17 February 2003, and the instrument of engagement, and did so, relevantly, in relation to the starting salary (see page 91).
While I do not accept that the applicant knowingly accepted the ultimate starting salary as at the time of his letter of 17 February 2003 (page 85), it is clear that by the time he came to commence duty (the date on which his engagement was said to take effect - in this regard see the letter of 17 February 2003 to the applicant set out at page 89) the applicant, by that time, was clearly on notice as to his starting salary. I agree with the respondent that at least at this point the applicant, by commencing the performance of his duties, did know the starting salary and can be said to have accepted this offer of employment on that basis. In this regard, I agree with the respondent that, with reference to sections 10(2)(b)(2) and s.16 of the Act, it was always open to the applicant between the time of receiving the letter of 17 February 2003 (which noted specifically the starting salary) and his actual date of commencement of duty (the date on which his engagement was said to take effect), to have sought review of what had been presented to him as the starting salary. In these circumstances, the relief that the applicant now seeks should not, in my view, be granted.
I should also note that the granting of the relief that the applicant seeks in relation to “this decision” would be futile unless some error could be found in the decision to terminate the applicant’s employment (in which case, if the applicant were to be returned to employment, the issue of his salary would be relevant). Given that damages are not available to the applicant pursuant to the Act, even some finding favourable to the applicant in relation to this particular “decision” does not assist him in this regard without some finding in relation to the decision on termination of employment.
But an even stronger ground in rejecting the applicant’s complaint in this regard is that I agree with submissions made on behalf of the respondent that the applicant’s engagement at a particular level of salary and, relevantly, the level of that starting salary, was not a “decision” made under an enactment for the purposes of the Act. The applicant was offered employment. This offer was made provisionally to him and was subsequently confirmed. His engagement as an employee of Centrelink was made on the basis of a particular starting salary. By his subsequently commencing duty, the applicant caused the engagement of employment to take effect. This was done, amongst other things, on the basis of the starting salary which had been notified and offered to him.
The applicant asserts, amongst other things, that he was engaged for employment pursuant to s.22 of the Public Service Act (presumably as it then was in May 2004). The respondent submits that the setting of the applicant’s starting salary was not a decision made under this enactment, but was, in fact, part of the negotiation relating to the ultimate contract of employment. Ultimately, in that the applicant accepted a job offer and that, as such, makes this a matter of contract law, not a matter involving a statutory decision.
The respondent relies on Tang and, in particular, per Gummow, Callahan and Hayden JJ at [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.”
In Australian National University v Lewins (1996) 68 FCR 87 (“Lewins”), a decision not to promote a member of staff to the position of reader at the Australian National University was found not to be “made under” the Australian National University Act 1991 (Cth) (“the ANU Act”). Lehane J explained (at [103]):
“In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one “to employ staff”. Obviously that, taken together with the general power to contract, empowers the university to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the university unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them — except, of course, to the extent that contracts of employment may themselves empower the university to make determinations which will be binding on the employees concerned …”
Further, see Tang at [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.”
Further, at [89]:
“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, second, 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.”
The respondent’s argument is that while the Public Service Act contains a power to engage employees, it is not a unilateral power, it is consensual. Plainly, the applicant did not have to accept the terms of the offer of employment. The argument is that the decision to place the applicant at the lowest level of the applicable salary level was an action derived from the contract, and not from the Public Service Act.
The respondent also relies on McManus v Scott-Charlton (1996) 70 FCR 16. The respondent’s submission was that this authority made it quite clear that decisions of the type complained of by the applicant now, are not decisions “made under an enactment.”
An alternative submission was that even if such a “decision” could be said to be a decision “made under an enactment,” at best, the decision would have been made under the terms of the Certified Agreement (the relevant Certified Agreement, involving the employer and Centrelink employees was put before the Court at annexure “F” of the affidavit of Ms Kearney, at pages 48 to 156. See, in particular, clause 31.3, at page 72). As such, it was made under the Workplace Relations Act and, therefore, is excluded by virtue of what is set out in the relevant schedule of the Act.
I agree with submissions made by the respondent in this regard. In my view, the decision to place the applicant at a particular point on the available salary range was not made under an enactment in the manner as explained in the authorities to which the respondent referred. The applicant only identifies various sections of the Public Service Act as the relevant enactment. In all the circumstances, and while there may have been enabling provisions in that Act, the actual “decision” relating to the applicant was clearly a matter of agreement between the parties, and it was always open to the applicant to have refused the offer of employment on the terms offered. Indeed plainly he could have done so at any time, up until the time that the appointment took effect.
Given the nature of this “decision,” I cannot see any utility in permitting this issue to become the subject of further consideration at a final hearing of the matter. It is appropriate that this particular complaint be disposed of at this time.
“Decision 2 – R2: Decision not to give proper information and/or placement under AWA.”
Further to this the applicant states in his document of 1 June 2007:
“The applicant was unilaterally placed at the minimum salary according to the collective agreement without providing any information and/or respecting his right to have an informed choice.”
The respondent’s position is that this matter is to be seen as belonging in the same category as the first “decision.” It was described as: “an attack in relation to initial employment.”
I agree that this complaint clearly fails for the same reasons as above. It was not made: “under an enactment,” or if it could be so described, it would be the Workplace Relation Act. It is important to note that even the applicant appears to agree in his description of this decision (contrary to the assertion that it was made under the Public Service Act) that the placement was: “at the minimum salary according to the collective agreement.” Even on its face, therefore, this is clearly a “decision” made, according to the applicant’s description, under the Workplace Relations Act, and excluded by Schedule 1 of the Act.
“Decision 3 – R3: Decision to deny relocation assistance.”
The applicant explains that assistance to relocate to the place of employment was initially “offered verbally” by “the Chair of the selection panel,” but that this was subsequently withdrawn by the relevant manager.
In the document: Additional Information Sought by the Respondent, the applicant asserts that the date of this “decision” was “on or around 27 February 2003.” In his affidavit of 30 November 2006, the applicant describes that when he was interviewed for the position with Centrelink in Canberra, he was interviewed by a panel at which Mr M Hughes was the Chair (see paragraphs [42] and [43]). The applicant appears to have had various communications with Mr Hughes in the period following that interview (which took place on 28 November 2002 – see in particular, paragraphs [45] to [64]). At paragraph [65], the applicant states that some time after he had received the provisional offer of employment, he had a conversation with Mr Hughes who: “also told [the applicant] that [he] was eligible for relocation assistance …”
At paragraph [91], after having commenced work at Centrelink on 24 December 2003 (see paragraph [78]) the applicant states:
“I asked Mr. Hughes how I claimed relocation assistance and he replied that he (Mr. Hughes) had to raise some paperwork towards that or something to that effect. Mr. Hughes came back to me after about a couple of days and told me that Ms. Austin was not comfortable with that (relocation assistance being paid to me) and neither did I pursue it further.”
First, there is nothing before the Court to show that the applicant was entitled to any relocation assistance pursuant to any enactment. Second, on the applicant’s own evidence before this Court, there is nothing to show that any such assistance was part of the formal offer of engagement for employment nor, importantly, that the applicant ever applied for any such assistance such that it could be said that a decision was made to refuse it. On the applicant’s own evidence, Mr Hughes appears to have adopted a very positive attitude towards the applicant’s employment, and indeed (see paragraph [90] of his affidavit), the applicant lodged with Mr Hughes who had offered him “temporary accommodation with him at his apartments.” The applicant notes that:
“… Mr. Hughes further provided additional furniture within a couple of days, which made me stick around, in appreciation of that kind gesture until he expressed his desire for me to vacate.”
The applicant’s evidence is that the issue of relocation was raised by Mr Hughes and, plainly, when he asked Mr Hughes how to go about “claiming” the relocation assistance the exchange with Mr Hughes was still at the exploratory discussion stage. When Mr Hughes was given to understand that the relevant manager “was not comfortable” with such a request, nothing further was done. Importantly, on the applicant’s own evidence, this state of affairs appears to have been accepted by the applicant at that time (“… neither did I pursue it further”).
What remains is that I cannot see that any application for relocation assistance was ever made by the applicant. At best, he chose not to pursue the possibility first raised by Mr Hughes. If no application was made, then clearly no decision was made, such that it could be the subject of review pursuant to the Act. In any event, even if the exchange that occurred with Mr Hughes could be construed as some formal approach (which I do not agree that it is), then plainly if Ms Austin’s expression of a ‘lack of comfort’ was to be discerned as a decision or even conduct, to refuse the applicant relocation assistance, and in the absence of anything else put before the Court, this plainly would have been a “decision” made under, or within the authority of, the Certified Agreement, and I can see no reason for any further consideration of it at a final hearing. Thus it would come within the provisions of the Workplace Relations Act, which in turn, is excluded by Schedule 1 of the Act. This complaint also does not succeed. (Relocation assistance is listed in the Certified Agreement, see annexure “F” to the affidavit of Ms Kearney at pages 144 to 145).
“Decision 4 – P.1: Decision to extend probation beyond 3 months (Failure to confirm my employment as of 24 May 2003)”
The basis of this complaint appears to be that the applicant was denied confirmation of his appointment to employment with
Centrelink as of 24 May 2003, which was three months after his commencement of employment, even though his performance was rated as satisfactory at that time. He was, in fact, not confirmed in his employment until some six months after his commencement date.
From the material before the Court, it appears that the relevant scheme in operation was that the determination made to offer employment to the applicant and the applicant’s commencement of the performance of his duties was subject to some subsequent process of confirmation of his employment. The applicant’s complaint is that this confirmation should have taken place three months, rather than six months, after the commencement of his employment.
Relevant documents in relation to this complaint before the Court are:
1)Annexure “F" to the affidavit of Ms Kearney, being part of the Centrelink Certified Agreement: “Centrelink Development Agreement 2003-2005,” being pages 1 to 109 inclusive of that Agreement.
2)Respondent’s Exhibit 3, being pages 110 to 139 of that Agreement.
3)Annexures “H” and “I” of the affidavit of Ms Kearney, a printed version of the “People Handbook,” which is an electronically held document containing Centrelink’s policies and procedures in relation to employment matters (relevant extract).
I agree with the applicant to the extent that he argues that it was possible for his employment to have been confirmed after three, instead of six months from the date of commencement of his employment. The applicant’s explanation of the basis for this complaint is essentially set out in his outline of submissions of 11 September 2007, at paragraphs [246] to [298]. The applicant claims that he was given repeated assurances that his probation period would not be more than three months if he met the standards of work and conduct at the level of “satisfactory.”
The applicant explains that on 10 June 2003 a supervisor (Ms Austin) gave him a probation report that indicated, amongst other things, a rating of “satisfactory.” But it was “deficient” in that it did not contain a recommendation as to whether the probation period would end at three months, be continued until six months, or that employment was to be terminated (see annexure 28 to the affidavit of 30 November 2006 and at pages 111 to 120).
In support, the applicant referred the Court to extracts of a Centrelink: “People Handbook,” entitled “Engagement of Ongoing Employees” (see annexure 27 to the affidavit of 30 November 2006 at pages 121 to 125). At paragraph [253] of his submissions of 11 September 2007 the applicant specifically referred to:
“Though the applicant did not know the process at that time, later he came across the details [Annexure 27 pages 122 – 125] in the section titled ‘Engagement of Ongoing Employees’ of the People Handbook. In page 6 of 19 and 7 of 19 [Annexure 27 pages 122 and 123], the document said:
‘Employees are subjected to a maximum probation period of up to six months commencing on the date of the employee commencing ongoing work with Centrelink. However, during this period a manager/team leader may determine that:
· if the standard of conduct and work performance is satisfactory, the period of probation should formally end earlier than the maximum period. ...
· probation should continue until the end of the maximum period; or
· the employee’s employment should be terminated … [emphasis added].’.”
The applicant claims that following the provision of the incomplete report of 10 June 2003 he was again given to understand in discussion that the period of probation was to be three months. This was until 12 August 2003 when he was given a probation report with a recommendation to “extend his probation to full six months” (see paragraph [256] of the written submissions and annexure 31 to the affidavit of 30 November 2006 – pages 140).
The applicant then sought to complain about this recommendation and ultimately presented “a formal application for investigation” (see paragraph [257] of written submissions). A “Ms Corrigan” was appointed to investigate and produce a report, which was subsequently provided on 3 March 2004 (see annexure 139 to the affidavit of 30 November 2006.)
The applicant claims (at paragraph [259] of the written submissions) that he is unable to submit who the relevant decision maker was in relation to the decision to extend the probation period to the full six months, and makes certain allegations about a “Mr Padovan” (who was the person to whom the application for investigation was submitted.) The applicant appears to have worked in Mr Padovan’s “branch at Centrelink” (see paragraph [9] of the affidavit of Ms Kearney). The applicant seeks: “the Court’s attention to the possibility that Mr. Padovan might have refused to exercise his discretion in this regard that led to all these complexities including a seemingly fake letter of confirmation.”
Further, in accordance with s.170CM of the Workplace Relations Act, Mr Padovan gave the applicant two weeks notice of the termination and elected to pay the applicant the amount of compensation in lieu of the two weeks notice of termination. Further, he stated:
“While there is no right of appeal against the giving of a notice of termination of employment, if you believe that the termination of your employment is unlawful or harsh, unreasonable or unjust, you may lodge an application with the Australian Industrial Relations Commission under section 170CE of the Workplace Relations Act 1996.
Should you decide to make such an application, it must be made on the appropriate forms, available from the Australian Industrial Registry (AIR), and lodged with the AIR within 21 days of the date of your termination.”
The formal notice of termination is at page 672 to annexure 211 of the applicant’s affidavit.
At annexure 212 (at page 674) there is a communication from “Dr. P Jayadev BHMS,” who is described as a “Consultant Homoeopath,” (following this, there is an address that appears to be located in India):
“To whomsoever it may concern.
This is to inform you that Mr. K P Manikantan, who is under my treatment for Inguinal Hernia, had an episode of fever and body ache (Influenza) and hence he could not attend office during the 7days [sic] beginning 20th May to 28th May 2004as [sic] he was advised absolute rest absolute rest [sic] for complete recovery.”
On all the relevant material before the Court, I cannot see that any complaint of a failure of procedural fairness can succeed. The applicant was put on notice as to the issue of terminating his employment and the basis on which this was being contemplated. This is the question of unauthorised leave. He was given an opportunity to provide satisfactory explanations, and evidence, so as to enable his unauthorised leave to subsequently become authorised. The period provided to the applicant was reasonable in all the circumstances. I note that in relation to some of the relevant period the applicant’s explanations were accepted, and his absence was deemed authorised (the “Flex” leave for 10 May 2004 was approved - see page 9 and 10 of annexure A to the affidavit of Ms Kearney), and paid carers leave was approved for 17 May 2004 on the evidence the applicant had provided (see annexure 211 at page 672 of the applicant’s affidavit of 30 November 2006).
In relation to the extension of time as requested by the applicant to enable him to obtain a certificate from India, it was open to Mr Padovan to find that evidence from a homoeopath based in India did not constitute satisfactory medical evidence. I am satisfied that there is a clear inference arising generally from the material above, but in particular, from the relevant parts of the letter of 28 May 2004 (see annexure 211 at page 670) that evidence from a medical practitioner registered in Australia was required because, amongst other things, such a practitioner would have the opportunity to examine the applicant at the relevant times, a circumstance which plainly could not apply to any practitioner who was outside of Australia while the applicant remained within Australia.
I was not persuaded by the applicant’s submissions before the Court as to his reasons for not seeking such a certificate from a medical practitioner in Australia after having been repeatedly been put on notice that this was required. It is plainly not for this Court to conduct a merits review of Mr Padovan’s decision. On the material before the Court, I cannot discern a legal error in what Mr Padovan has done. The findings leading to the ultimate conclusion in relation to termination were opened to him on the evidence before him. To the extent that the applicant seeks a rehearing of those issues, such rehearing would constitute impermissible merits review. In terms of the applicant’s complaints of a denial of procedural fairness, this complaint does not succeed for reasons already stated. In terms of his complaint that it was not open to Mr Padovan, or that it was unreasonable for him, to have acted in the way that he did, I cannot see that any such complaints can succeed.
“Decision 33 – D.5: Decision to initiate yet another investigation alleging breach of the APS code of conduct simultaneous to the proceedings towards termination of employment”
The applicant describes this complaint as the initiation of “another vexatious investigation” alleging a breach of the code of conduct. The applicant’s submissions (in particular paragraphs [202] to [204]) explain that on 24 May 2004 he received a telephone call from “Ms Newman,” inviting him to meet with her in relation to an investigation relating to a breach of the code of conduct (see also paragraphs [957] to [961] in the applicant’s affidavit).
On the applicant’s evidence he was told that this investigation concerned the direction given by Mr Padovan to the applicant to provide a medical certificate for the days that he was absent. The applicant’s complaint is that Ms Newman’s conduct amounted to “harassment under s 35 (1) of the Disability Discrimination Act (DDA) 1992 and may be construed as discrimination …” This complaint does not succeed for similar reasons to those stated generally above.
Further and ultimately, I cannot see that for the purposes of the Act the applicant can be said to be aggrieved in relation to the decision to initiate “yet another investigation,” given that on the material before the Court, nothing occurred beyond the reported discussion with Ms Newman. No investigation took place, and was, in any event, overtaken by the termination of his employment. Beyond the letter (at annexure 207, at pages 661 to 662), there is nothing further to show that the investigation took place. Further, given the relevant dates, the decision to terminate the applicant’s employment overtook this “second investigation” into an alleged breach of the code of conduct. This ground also does not succeed.
Conclusion
The applicant claims to be aggrieved by decisions made by various employees of the respondent between February 2003 and 28 May 2004, when the applicant’s employment with the Centrelink was terminated. For reasons already set out above, the application to the Court is made only pursuant to the ADJR Act. It was made on 1 December 2006. Section 11 of the Act (see, in particular, ss.11(1)(c) and 11(1)(3)) provides that an application to this Court made pursuant to the Act must be made within the prescribed period of 28 days. The respondent seeks summary dismissal of the application essentially for two broad reasons.
The “decisions” by which the applicant claims to be aggrieved are either excluded from the operation of the Act by virtue of Schedule 1 to the Act, are not decisions made under an enactment such as to enliven the Act, do not have the requisite “final, operative or determinative” qualities quality to be “decisions” for the purposes of the Act, or are ultimately not decisions adverse to the applicant. That is, that he cannot be said to be a person aggrieved in the sense required by the Act.
I have dealt with each of the “decisions” above and for the reasons stated, I agree with the respondent that the applicant’s complaints would not succeed even after a final hearing in this matter and that it would be of no purpose to allow the matter to proceed further.
For the applicant’s benefit, I note (with reference in particular to his submissions, including his submissions of 25 September 2007 at paragraph [90]) that a deal of caution does need to be taken in respect of the consideration of an application for summary dismissal, particularly involving an unrepresented applicant. I gave the applicant considerable opportunity (and it must be said leeway) over the days of the course of the hearing of the respondent’s application for summary dismissal, yet I cannot find that there is a question to be tried arising from the materials that he has put before the Court.
I cannot see that the applicant’s complaints as explained and submitted in submissions by him can succeed. In my view, for the reasons given above, the respondent’s motion succeeds.
Discretion
The relevant issues currently before the Court are the applicant’s extension of time within which to make his application and the respondent’s application for summary dismissal. While a lengthy hearing has certainly been conducted in this case, it is plainly not a final hearing. The issue is whether the matter should be allowed to go further to a final hearing. In this context I considered whether it was appropriate for the discretionary issues discussed above to be applied at this stage, or whether they should more follow properly a final hearing.
I am persuaded by Mr Renwick’s submissions that such consideration is relevant at this stage of these proceedings. In this regard, I note what was said in McGowen v Migration Agents Registration Authority [2003] FCA 482 at [47] in considering the exercise of the Court’s discretion, both in the context of the Act and s.39B of the Judiciary Act:
“Order 54 rule 7 of the Federal Court Rules requires a party who seeks to have an application for an order for review dismissed on a ground set out in s 10 of the ADJR Act or in the exercise of the Court’s discretion to apply promptly for such dismissal. As Northrop J explained in Edelsten v Minister of Health (1994) 58 FCR 419 (‘Edelsten’) at 422 the power to dismiss summarily an application for an order of review is designed to avoid the necessity for the Court to consider the whole of the applicant's case where, even if otherwise an applicant would succeed, no order would be made in favour of the applicant …”
I agree with Mr Renwick that in this regard, there is no relevant distinction to be made between the relief considered in that case and the relief sought in the current case.
Mr Renwick also referred the Court to Hunter Valley Developments per Wilcox J at 349, and in particular, as support for the proposition that the Court can have regard to the merits of the case (that is, the merits of the substantial application) when considering whether an extension of time should be granted.
On what is before the Court, for the reasons already stated, even if some breach of the relevant procedures had occurred, in the exercise of discretion I would refused to grant the relief that the applicant seeks. But in any event, the applicant does not succeed at this stage for the reasons already stated.
Application for Extension of Time
For the applicant’s benefit in particular, I note that I am also persuaded by the respondent’s submission that given the application to the Court was made some two and a half years after the expiry of the 28 day time limit, which was the relevant time limit at least in relation to the termination decision, and longer in relation to the other “decisions,” the applicant’s request for an extension of time is also refused for the reason that I am not satisfied that the applicant has provided an acceptable explanation for the delay.
In this regard, I note in particular, the principles articulated by Wilcox J in Hunter Valley Developments, particularly at 348 – 349. Both parties relied on this case in submissions. I also note that the applicant’s reliance on Damien Haining v Deputy President Drake & Ors [1998] FCA 1168, in that the principles set out in Hunter Valley Developments are a guide, and that it is plainly not correct to treat them as “statutory criteria.”
The applicant’s explanation for the delay in filing the current proceedings at a later time is set out in his written submissions of 11 September 2007 (at paragraphs [908] to [942]). The submissions are that when he left Centrelink on 10 May 2004, the applicant sought guidance from lawyers (including the Law Society in Canberra), he fell sick, and when he received Mr Padovan’s letter regarding termination on 21 May 2004, he again sought help from lawyers, and from the “Association of Professional Engineers Scientists and Managers of Australia,” a professional association of which he had previously been a member. He claims that he was not successful in seeking assistance. He also submits that he took his family back to India and that on his return to Australia on 13 June 2004, he met with “a lawyer.” It was on his own initiative, however, that the applicant “thought of filing his complaint with the HREOC,” (see paragraph [914]). But did not proceed because of reasons set out elsewhere in his submissions (see paragraphs [892] to [925]), which assert a miscarriage of justice by the HREOC. Amongst other things, the applicant also complained that HREOC was “unreasonable” because it was not of assistance to him.
The applicant’s submissions are that by the end of June 2004, he was “reconciled to his fate,” and that he “started looking for re-employment with more determination” and has applied for “about 600 jobs despite his health conditions ... but without success” (at paragraph [915] of submissions) In short, the applicant’s submissions were that his ill health and his searching for employment took up his time and that he “could not get any help from any quarters,” even though he “kept his options open in terms of seeking relief and redress through legal avenues” (at paragraph [916] of submissions). The applicant submits that he visited India in late 2004, and again in mid 2005, so that he could check on his family and for the purposes of “availing routine health check-up with his doctor” (at paragraph [917]).
The applicant’s submissions were that sometime in October 2005 he “came to know about the format of an affidavit” (paragraph 919) and “[a]rmed with his new-found knowledge of the affidavit” (paragraph [920]) started filling in details about his case and again started contacting various people and organisations for help, including the “Australian Lawyers Alliance” who referred him to a lawyer, who “after some e-mail exchanges did not want to proceed” (see paragraphs [919] to 920). He obtained a list of three lawyers to contact for “pro bono” help through the Law Society of New South Wales. But this again did not result in his being successful in obtaining legal assistance. The applicant also submitted that he made further attempts to obtain legal advice (see paragraphs [922] to [923]). He visited his family in India between mid-May to mid June 2006, and after his return “he concentrated more on the re-employment front because of the advice on the time limit” (see paragraph [925]).
The applicant’s attempts to obtain employment continued to be unsuccessful. This included circumstances where the applicant was not prepared to take any “menial labour type jobs,” and wanted jobs that were “suitable jobs commensurate to his credentials.” The applicant submits that he was “under the impression that the limitation period [relevant to the Act] was six years” and he “assumed that the information that he got from the FMC help desk may be incorrect” (presumably relevant to the relevant prescribed period). He claims that he started working again to “complete his affidavit” (paragraph [927]) but that his laptop computer “broke down around early August 2006.” He claims to have lost time because it was not until October 2006 that he “bought a new computer and started working again towards filing his matter at the FMC” (see paragraph [928]). It was not until 30 November 2006 that we was able to take his documents to the Court registry and that they were ultimately filed on 1 December 2006.
I should just note that to the extent that the applicant’s submissions relate to legal advice that he was given, I confirmed with the applicant at the hearing that he was content to waive legal professional privilege.
In summary, Mr Renwick’s submission was that while the applicant made a conscious decision to seek advice about the termination of employment, the advice that he was apparently given was that there was no merit in taking the matter to the AIRC. To the extent that the applicant complains about the Human Rights Commission, the applicant did not articulate discrimination on any recognized ground. The submission was, therefore, that there was no adequate explanation as to why the application was not filed in this Court until 1 December 2006, well over two years after the decision was made to terminate employment and even longer in relation to the other “decisions.”
In seeking dismissal on a summary basis, Mr Renwick also relied on the issue of prejudice to the respondent. He relied on the affidavit of Ms Kearney (with particular relance on evidence at paragraphs [4] to [12]) in submitting that after this length of time there was some difficulty for the respondent in relevant witnesses being able to recall the details of the events put forward by the applicant. Further the unavailability of key persons (such as Ms Corrigan). He submitted that while much of what they said was recorded in writing, the difficulty for the respondent would be that the applicant seeks to make additional allegations in his affidavit, and that there is significant prejudice to the respondent in defending the proceedings occasioned by the delay due to the fading from memory of the events.
Further, that there was evidence (see paragraph [25] of the affidavit of Ms Kearney) that email records cannot be retrieved after six weeks of creation. The difficulty, therefore, for the applicant over two and a half to three years later was said to be “obvious.” Ultimately, Mr Renwick relied on the submission that the merits of the substantive application should be properly taken into account in considering whether an extension of time should be granted and, given his other submissions on this issue, the substantial application would not succeed, and that the application should therefore be struck out.
In addition to written submissions, I note the material at annexure 228 (at page 770 to 954) and annexure 229 (page 955 to page 998) to the applicant’s affidavit of 25 September 2007, detailing his attempts to obtain re-employment. I also note the material at annexure 230 to the same affidavit and annexure 231 (pages 999 to 1022) going to the matters of his seeking legal assistance in relation to his complaints.
In oral submissions made before the Court, the applicant confirmed that he sought legal advice regarding “discrimination” by Centrelink prior to “having left Centrelink,” that he sought legal advice after receiving the notice of termination, and that he did seek to apply to HREOC (in June 2004 - he decided: “to apply for human rights”). The applicant also submitted that the respondent was not correct to say that he did nothing relevant between June 2004 and November 2004 because the “Human Rights Commission’s e-mails will show it was going on to 24 July,” as matters with them “went back and forth.” At this point in time, he submits, his time was taken up with “contacting professional firms for help” and his health issues. The applicant emphasised what was in his written submissions that some of his time was taken up in collecting material, and that his expectation that the limitation period was six years was “mainly because of my experience in Centrelink and every document should have been kept for six years.”
The applicant also appeared to take issue with the evidence of Ms Kearney in that he was aware of a particular system where emails could be retrieved beyond the period that was specified in her evidence.
Had I found that the interests of justice required some issue to be further heard at a final hearing, I would not have exercised my discretion to grant the respondent’s motion in so far as that motion relies on prejudice to the respondent. I am not satisfied that persons no longer working for Centrelink (although some of whom work for other public service organisations – Mr Padovan and Mr Di Berardino) could not be made available to give evidence. Nor (beyond Ms Corrigan) can I see why being on extended leave (in the absence of anything else) would further make it difficult for the respondent to obtain evidence from Ms Gvozdanovich and Ms Fursman. Any inconvenience or cost occasioned by the respondent could be more properly addressed through the issue of costs apportionment, rather than denying the applicant an opportunity for a final hearing.
Having said that, however, I am not satisfied with the applicant’s explanation for the delay as being adequate or satisfactory to explain the two and a half years (at least) delay. The applicant’s health problems plainly did not stop him from taking steps to obtain legal advice and were of not such a level as to have prevented him from making the many hundreds of applications for employment that he said that he made (many of which are detailed in his annexures to his affidavit).
On what has been put before the Court, it is clear that the applicant properly did take steps to seek advice in relation to pursuing some of his complaints to the AIRC and the HREOC. The first was not pursued beyond obtaining advice. The second was unsuccessful, and did not pass even a preliminary stage.
From at least July 2004, the applicant plainly concentrated on other matters such as his employment search and his family. While it is open to infer that his coming to this Court in December 2006, some two years later, was motivated and influenced as much by the applicant’s unsuccessful job search as it was by any desire to seek redress for the grievances that he now claims before this Court, I am not satisfied on what the applicant has put before this Court that he has satisfactorily explained the failure to pursue his application in a more timely fashion at least as from the end of 2004.
I do not find that the applicant’s individual complaints should be given the opportunity of a final hearing. However, had I found that any such complaint or ground did justify a final hearing, I nonetheless would have exercised my discretion to have refused that avenue to the applicant given that the applicant has not provided a satisfactory explanation as to why he did not seek to press his application at least from the end of 2004 until the end of 2006. If anything, the applicant’s submissions and evidence in this regard reveals that after commencing action in the AIRC, after unsuccessfully pursuing a complaint before HREOC, and after obtaining legal advice, he turned his attention to his family, employment opportunities and his health.
Conclusion
In summary, the applicant has sought review pursuant to the Act and has specified 33 grounds by which he claims to be aggrieved. The applicant has come to this Court some two and a half years after the time of the last of those decisions and requires an extension of time for the matter to proceed further. The application put before the Court has, for the reasons already set out above, no merit or it would not succeed even if the matter were to be allowed to proceed further. The application for extension of time is refused by reason that the applicant’s complaints or “decisions” do not reveal merit or would not warrant being allowed to proceed further. I cannot see any utility in allowing the matter to proceed further in the circumstances set out above. For these reasons, I grant the respondent’s application for summary dismissal and will make orders accordingly.
I certify that the preceding four hundred and thirty-nine (439) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 2 June 2008
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