Panagopoulos C. v The Secretary, Department of Veteran Affairs
[1994] FCA 1077
•12 Dec 1994
| 1 0 7 7 ~ | 94- |
| JUDGMENT No. | ..... , | .....,,,, , | ,. |
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| 1 | |
| NEW SOUTH WALES DISTRICT REGISTRY | ) No G 729 of 1994 1 |
| GENERAL DIVISION | 1 |
| BETWEEN: | CHRISTINA PANAGOPOULOS |
Applicant
THE SECRETARY. DEPARTMENT OF
VETERANS' AFFAIRS AND OTHERS
Respondent
| m: | Davies J. |
| Date: | 12 December 1994 |
| Place: | Sydney |
REASONS FOR JUDGMENT
EX TEMPORE
This is an apphcation m which the ultimate relief sought is orders of review
with respect to decisions to retlre the applicant, Christina Panagopoulos, from the
Commonwealth Public Service.
I should commence by saying that in my vlew, the substantive laws and the procedures provided under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") do not provlde the best remedy for reviewing disciplinary
dec~sions, retirement decisions, or for that matter, any other decislon deahg with the
promohon, transfer or alteration of the nghts or status of Commonwealth public
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servants. It is ~mportant that there be adequate merits review of all such decisions. Merits review is far more appropnate than the review available under the ADJR Act. Rewew by this Court very often cannot get to the heart of the merits of a matter,
looking merely to questions such as whether all relevant facts were taken into account,
whether any irrelevant fact was taken into account and whether the decision was so unreasonable that no reasonable decls~on maker could have arrived at it. Those are the princ~pal grounds m many cases. Other grounds, such as non-compliance with procedural requirements and so on are also relied upon. In the end, the Court
cannot get to the lnerlts of the case. It 1s desirable that there be adequate ments
review whereby this 1s achieved.
| Having sa~d | that, I turn to the motion we are deallng with this morning. The |
principal application seeks revlew of two deasions. One was the primary decision by
a Mr Peter Walker, a delegate of the Secretary of the Department of Veterans Affairs, to retire MISS Christina Panagopoulos. The time for review of this decision
ran from 31 May 1994.
MISS Panagopoulos did not immediately seek review under the ADJR Act, but
| appealed to an appeal committee under section 76(Z) of the Public S e ~ c e | Act 1922 |
(Cth). Such an appeal may be brought on the ground that the retirement of the
officer would be unreasonable. That 1s the ground specified by section 76(Z). The wdth of that ground is a little uncerta~n. It certainly covers the ground of unreasonableness, but whether it covers all the grounds of failure to comply with procedural requirements may be a matter of doubt. In any event, the review is not a
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full merits review, it is a limited review, though no doubt in practice the word
'unreasonable' 1s given a wlde ambit.
The second part of the principal application seeks review of the decision of the
| Appeal Comm~ttee | which, by major@, affirmed the original dec~sion. |
The first respondent, the Secretary of Department Affaus, has raised the issue whether the appl~cation was lodged in tlme, Insofar as it seeks revlew of the decision of Mr Walker. Thls present lnotlon seeks an extcnslon of tlme so as to validate the application which was lodged on 26 October. The application was lodged in time for the revlew of the decision of the Appeal Committee.
In my opiruon, it is inevitable that, in order to determine the validity of the
dec~sion making process in relatlon to the retirement, the Court must consider both
decisions and cannot cons~der just the decision of the Appeal Committee itself. That
IS because the powers of the Appeal Committee are not unlimited; the jurisdiction of
that Committee is limited to the ground specified by section 76(Z) of the Public Service Act 1988 (Cth), and there may be some matter arislng whlch goes to the
validity of the decision which was not w~thin the jurisdiction of the Appeal Committee.
I refer by analogy to the case of Rldge v Baldwm [l9641 AC 40. Of course, that was a very different case, but it was there held that a primary decision was invalid on the ground that the officer, a Chief Constable, had not been given proper procedural fairness before the primary decision was taken. It was held by the House
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of Lords that the prlmary decision was vold. It was also held that the afirmation of that decision by the mlnister was ineffectual because the affirmation of a nullity was itself a nullity. I cannot readily plck out all the passages in Lord Reld's judgment to which I would like to refer, but h s Lordshlp dealt w th this matter at pp. 80 & 81 and said that, as the decision of the minister was a nullity, then although the appellant had elected to go, in the first place, to the Secretary of State, he had not waived hls right to come to the Court and was not estopped from doing so. Lords Morris, Hodson & Devlin expressed Mews to the same effect.
| Circumstances dlffer according to the legislation and | v Baldwin does not |
have universal application in circumstances where there are various layers of appeals
offered. But in a case such as the present, where the Court could not come to grips wth the totality of the matters that the applicant wishes it to look at without looking both at the orignal decision and at the dec~sion on remew, I think that the Court has
to consider both applications. It follows, therefore, that time should be extended. I think there was no waiver of the right to come to the Court because of the appeal to the Appeal Committee. I thlnk it was a senslble course for the applicant to take to go first to the Appeal Committee.
It seems to me that time should be extended and I shall therefore extend time
in respect of the decision of MI Peter Walker, so as to validate the application lodged
on 20 October 1994.
Having said that, I am still troubled about cases of this type. My present view
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is that the Industrial Relations Court is the proper court for a case of this type
because it can get to the heart of the merlts of the matter.
For example, s.l70(DE) of the Industrial Relations Act 1988 (Cth) provldes
that there must be a valld reason connected with the employee's capacity or conduct
for the termination of the employee's employnlent and that a reason which is harsh,
unjust or unreasonable is not a val~d reason. That is a wider ground in my opinion than the ground of unreasonableness, the Wednesbury ground (Associated Provincial Picture Houses Ltd v (1968) 1 KB 223), that this Court can
apply under the ADJR Act. It seems to be not in dispute, though counsel have not spec~fically duected then attention to it, and I have not looked at the issue, that the Industrial Relations Act would apply to officers employed under the Public Service
| - | Act 1922. | |
| A questions anses, however, under s.l70(BE) of the Industrial Relations Act whereby the Court must decline to consider or determine an application if it is satisfied that there is available to an employee an adequate alternative remedy. Apparently, the hdustr~al Relations Court 1s considering issues such as whether | ||
| appeals under sections such as s.76(Z) of the Public Service Act 1922 provide an adequate alternative remedy. That is a matter for the Industrial Relations Court and | ||
| I make no comment on it. My present tentative view, however, is that the jurisdiction | ||
| conferred on t h ~ s Court by the ADJR Act would not be an adequate alternative | ||
| ||
| Relations Court. |
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I can inform the partles of thls tentatlve view at this stage and also of my tentative view that this may be an appropriate case for the Court to exercise the discretion conferred upon it by s.10 of the ADJR Act, namely to dismiss an
application because of adequate provision made by another law, the other law being the Industrial Relations Act. I do not wsh to rule upon ths matter at the present time, but you have nly indication that, in my opinlon, the jurisdiction and the remedies avallable under the Industrial Relations Act are more adequate than those avallable to this Court under the ADJR Act. My present view IS that parties should be encouraged to go to the Industrial Relations Court, as Indeed the applicant already has done.
It may well be premature for me to say anything further about the matter
because I am informed that a case dealing wth like lssues will be considered by the
Industrial Relations Court shortly. The new that that Court takes upon the matter
would have influence wth this Court. For the moment I shall simply make the order
P
extending time.
I certlfy that this and the preceding 5 pages
are a true copy of the reasons for judgment of
the Honourable Justlce Dawes.
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