Morgan and Administrator of the Munjuwa Health, Housing and Community Aboriginal Corporation

[2004] AATA 1360

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1360

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/266

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		KEITH MORGAN

Applicant

And   ADMINISTRATOR OF THE MUNJUWA HEALTH, HOUSING & COMMUNITY ABORIGINAL CORPORATION

Respondent

DECISION

Tribunal   Mr J.W. Constance, Senior Member

Date  20 December 2004

Place  Canberra

Decision The application for review made 6 September 2004 in this matter has been made within the time required by section 29 of the Administrative Appeals Act 1975.

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CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – whether the time for making an application had expired – whether applicant received notice in writing of the decision and made application within 28 days – day applicant received written notice was day applicant received T-docs – time to make application has not yet expired – therefore application made in time

Administrative Appeals Tribunal Act 1975 – ss 29,

Aboriginal Councils and Associations Act 1976 – ss 76, 77, 77A

REASONS FOR DECISION

20 December 2004 Mr J.W. Constance, Senior Member

1.      Mr Morgan is seeking an extension of the time in which he can apply to the Tribunal to review a decision made by the Administrator to terminate Mr Morgan’s contract of employment by the Corporation.

2. For the reasons following I have decided that such an extension of time is not required as the application before the Tribunal has been made within the time required by section 29 of the Administrative Appeals Act 1975.

THE EVIDENCE AND FINDINGS OF FACT

3.      By a written contract dated 23 January 2003[1] Mr Morgan was employed as the Coordinator of the Corporation for a period of 5 years.

[1] Ex. A1.

4.      Mr Sheville was appointed Administrator of the Corporation on 24 March 2003.

5.      By letter of 12 May 2003 the Administrator wrote to Mr Morgan terminating his contract effective that day.  The final paragraph of the letter read:

“You may apply to the Administrative Appeals Tribunal for review of my decision to terminate your employment contract.”[2]

[2] T2.

6.      Mr Morgan gave evidence that he did not receive this letter, although he was informed verbally of the termination of his employment shortly after the date of the letter.  He said that he had not seen a copy of the letter until he was shown a copy of it during the hearing of this application on 10 December 2004.  I accept this evidence.

7.      I accept Mr Sheville’s evidence that he wrote the letter but there was no evidence before me, by way of mail records of the Corporation or otherwise, that the letter was actually posted.  It is surprising that a letter of this nature was not sent by some form of secure post or hand-delivered.

8.      In early 2004 Mr Morgan was told by an acquaintance that he could apply to the Tribunal for a review of the decision to terminate his employment.

9.      From the time of his termination until late August 2004 Mr Morgan was engaged in negotiations with the Administrator seeking compensation for the termination of his contract.  A number of the section 37 documents (exhibit A2) show that these negotiations were continuing during this time.[3]  By letter of 26 August 2004 the Administrator rejected Mr Morgan’s claim for compensation.[4]

[3] T11-T18 inclusive.

[4] T18.

10.     Mr Morgan lodged an application for review with the Tribunal on 8 September 2004.

THE LAW AND ITS APPLICATION TO THE FACTS

11. The Administrator has power to cancel an employment contract under section 76 of the Aboriginal Councils and Associations Act 1976. Section 77 provides for a review of such a decision by this Tribunal.

12.     The time for making an application for review commences on the day on which the decision is made (in this case 12 May 2003) and expires 28 days after the document setting out the decision is furnished to the applicant.[5]

[5] Section 29 Administrative Appeals Tribunal Act 1975.

13.     On the basis that Mr Morgan’s did not see the letter terminating his contract until it was shown to him during the hearing of this application on 10 December 2004, the time for making an application for review does not expire until 7 January 2005.

14.     I note from the Tribunal’s file that the section 37 documents, which contained a copy of the letter, were filed on 7 December 2004.  The letter accompanying those documents advised that the solicitors for the Administrator had sent a copy of those documents to the applicant but there is no evidence before me as to when those documents were received by Mr Morgan.  However as the latest document in the section 37 documents is dated 6 December 2004 the receipt of the section 37 documents would not make any difference to my decision on this application.

15. Had it been necessary I would have decided that the time for making the application for review be extended. As Mr Morgan did not receive the letter of 12 May 2003 he did not receive the advice of his right to seek a review of the decision in the Tribunal as is required by section 77A of the Aboriginal Councils and Associations Act 1976. Furthermore the parties were negotiating right up to the making of the application and the Administrator did not give evidence that indicated that he would be prejudiced in his conduct of his case before the Tribunal should the time be extended. He did give evidence of the prejudicial effect to the Corporation of an unfavourable outcome of a final hearing but this is not relevant to this application.

DECISION

16. The application for review made 6 September 2004 in this matter has been made within the time required by section 29 of the Administrative Appeals Act 1975.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate

Date/s of Hearing   10 December 2004
Date of Decision   20 December 2004
Counsel for the Applicant           Mr D. Richards
Solicitor for the Applicant            Slater & Gordon
Solicitor for the Respondent       Clayton Utz