Peacock v Commonwealth of Australia

[1999] FCA 861

FEDERAL COURT OF AUSTRALIA

Peacock v Commonwealth of Australia
[1999] FCA 861

PRACTICE AND PROCEDURE – application for leave to file and serve notice of appeal out of time – written case under Federal Court Rules O 52 r 15(5) – proposed principal ground of appeal not raised by counsel for applicant before primary judge – prospects of success of argument on appeal – significant delay in initiating appeal – whether “special reasons” for granting leave

WORDS AND PHRASES – “special reasons”

Industrial Relations Act 1988 (Cth) ss 3(g), 121, 170DF, 170EA, 170EE
Public Service Act 1922 (Cth) s 76V
Workplace Relations Act 1996 (Cth) s 347
Federal Court Rules O 52 r 15
Australian Public Service General Employment Conditions Award 1995 (Cth) pars 6.2.2, 9.1, 9.2

Australian Liquor, Hospitality and Miscellaneous Worker’s Union v Commonwealth of Australia (1994) 55 IR 18 cited
Griffin v Australian Postal Corporation (1998) 155 ALR 369 cited
Jess v Scott (1986) 12 FCR 187 applied
Gallo v Dawson (1990) 93 ALR 479 referred to
Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported) cited
Kartinyeri v Commonwealth of Australia (1998) 152 ALR 540 cited
Qantas Airways Ltd v Christie (1998) 193 CLR 280 cited

MORTIMER JOHN PEACOCK v COMMONWEALTH OF AUSTRALIA

N 292 OF 1999

LEHANE J
28 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 292 OF 1999

BETWEEN:	MORTIMER JOHN PEACOCK Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	28 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 292 OF 1999

BETWEEN:	MORTIMER JOHN PEACOCK Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	LEHANE J
DATE:	28 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal from orders made by Wilcox J on 16 October 1998.  The application for leave was filed on 9 April 1999, that is a little over five months after the expiry of the period of twenty‑one days allowed by O 52 r 15(1)(a).  The applicant, Mr Peacock, has elected to present his case and argument in writing under O 52 r 15(5).  He has filed an affidavit as to the circumstances in which he seeks leave and extensive written argument both as to the considerations arising on the application for leave and as to the merits of his proposed appeal.  The respondent, the Commonwealth, has filed submissions in response and Mr Peacock has filed a further submission in reply.

   Nature of Proceedings: decision from which applicant seeks to appeal

2. The orders made by Wilcox J on 16 October 1998 disposed of an application by the Commonwealth for review of a decision of a judicial registrar on an application made by Mr Peacock under s 170EA of the Industrial Relations Act 1988 (Cth). The judicial registrar found that the Commonwealth had terminated Mr Peacock’s employment in breach of s 170DF(1) of the Industrial Relations Act, the reason for the termination being Mr Peacock’s age.  The judicial registrar did not make an order for reinstatement but he ordered that the Commonwealth pay compensation to Mr Peacock.

3. Mr Peacock had been employed by the Commonwealth as Director of Psychology—Navy in the Department of Defence. His employment came to an end on his sixty‑fifth birthday, 18 July 1996. Section 76V of the Public Service Act 1922 (Cth) provided, in part:

   “76V(1)Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age.

   (2)Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and the officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer.”

   The “maximum retiring age” was sixty‑five: s 76V(4)

4. Mr Peacock, before turning sixty‑five, had sought an exercise of that discretion by the Secretary of the Department, so that Mr Peacock might continue in employment for a period beyond his sixth‑fifth birthday. The Secretary, however, decided not to exercise his discretion, so that Mr Peacock’s employment came to an end by virtue of s 76V(1).

5. The jurisdiction of the Court to make an order for compensation or reinstatement, under s 170EE of the Industrial Relations Act, arose where there was a contravention of a provision of Division 3 of Pt VIA of that Act. The Division included a series of provisions to the effect that an employer might not terminate an employee’s employment unless certain conditions were fulfilled; might not do so for any of a series of particular reasons; and might not do so in certain other circumstances. The relevant provision in this case was, as I have mentioned, s 170DF, which provided:

   “170DF(1)An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: …

   (f)race, colour, sex, sexual preference, age, …”

6. Before Wilcox J, senior counsel for Mr Peacock argued that the critical factor in the termination of Mr Peacock’s employment was the refusal by the Secretary to exercise his discretion under s 76V(2) of the Public Service Act. That meant that the Commonwealth had terminated Mr Peacock’s employment, and had done so in breach of s 170DF of the Industrial Relations Act so that an order might properly be made under s 170EE. The Commonwealth, on the other hand, argued that while an exercise in Mr Peacock’s favour of the discretion under s 76V(2) would have prevented s 76V(1) from operating to terminate Mr Peacock’s employment, the absence of such an exercise of discretion, or the refusal to exercise it, did not mean that the Commonwealth, as Mr Peacock’s employer, had terminated Mr Peacock’s employment: it simply meant that there was no impediment to the ordinary operation of s 76V(1), so that when Mr Peacock reached the age of sixty‑five his employment was terminated by virtue of s 76V(1); that is, by operation of law, not by an act of his employer. Wilcox J held that the Commonwealth’s argument was correct; it was supported by Australian Liquor, Hospitality and Miscellaneous Worker’s Union v Commonwealth of Australia (1994) 55 IR 18 and Griffin v Australian Postal Corporation (1998) 155 ALR 369. Accordingly, the Court had no power, his Honour held, to make orders on Mr Peacock’s application under s 170EA of the Industrial Relations Act.

   Submissions on application; discussion

7. As I mentioned, Mr Peacock was represented, before Wilcox J, by senior counsel.  He does not suggest that he was unaware of the provisions of O 52 r 15(1) or that his failure to lodge a notice of appeal within time resulted from oversight or misadventure of any kind.  Mr Peacock says in his affidavit that he does not have the funds necessary to sustain protracted litigation, nor does he qualify for legal aid, but he has sufficient resources “for one further and final action” in the form of an appeal to the Full Court.  He had not appealed previously because he had elected to seek redress through an application to the Human Rights and Equal Opportunities Commission.  The evidence does not disclose precisely what form his application took nor what its result was, but Mr Peacock says in his affidavit that the Commissioner “was not optimistic about his powers and the Department of Defence’s willingness to comply with any recommendations he might make”.  In those circumstances, though out of time, he wishes to proceed with an appeal from the decision of Wilcox J rather than commence a new proceeding, for instance an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the decision of the Secretary.

8. The principal ground on which Mr Peacock wishes to pursue his appeal is one which, apparently, was not raised before Wilcox J or before the judicial registrar.  It is that the relationship between Mr Peacock and the Commonwealth as his employer was governed by the Australian Public Service General Employment Conditions Award (the Award), which took effect in April 1996.  The contention is that the Award, read with certain provisions of the Industrial Relations Act, impliedly repealed s 76V of the Public Service Act, so that section did not bring about (as Wilcox J held that it did) the termination of Mr Peacock’s employment when he turned sixty‑five.

9. Order 52 r 15 provides:

   “15(1) The notice of appeal shall be filed and served –

   (a)       within 21 days after -

   (i)the date when the judgment appealed from was pronounced; …

   (2)Notwithstanding anything in the preceding sub‑rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

10. In Jess v Scott (1986) 12 FCR 187 the Full Court held that sub‑r (2) gives the Court a discretion to relax the strict requirements of sub‑r (1) wherever sufficient cause is shown upon an examination of the circumstances of the particular case. The Full Court said (at 195) that:

    “… the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty‑one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression ‘for special reasons’ implies something narrower than this.”

11. Their Honours added:

    “It should not be overlooked that r 15(2) enables leave to be given ‘at any time’; the ‘special reasons’ relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  ‘Special reasons’ must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

12. As McHugh J said, in relation to O 60 r 6 of the Rules of the High Court (which does not require “special reasons”), in Gallo v Dawson (1990) 93 ALR 479 at 480:

    “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties:  … .  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time:  …  .  When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal:  … .  It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: …  .”

13. A delay of over five months after the expiry of the time prescribed in sub‑r (1) must, in the context of the elasticity referred to in Jess v Scott, be regarded as a very significant delay where the only explanations offered are impecuniosity (though not of a degree which would preclude pursuit of the appeal) combined with Mr Peacock’s prosecution, during the five months, of an application to the Human Rights and Equal Opportunity Tribunal.  It would, in those circumstances, be a large step to permit the filing of a notice of appeal in order to allow Mr Peacock to take a point on appeal which was not taken on his behalf when he was represented by counsel before the judicial registrar and by senior counsel before Wilcox J.  At least it is clear (see also Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported)) that the grounds on which Mr Peacock wishes to pursue his appeal must in those circumstances be examined so as to ascertain whether, if leave is refused, there is a potential for injustice to Mr Peacock which outweighs the entitlement of the Commonwealth to take it, so long after orders were made in its favour, that the matter has been finally resolved.

14. Mr Peacock’s submissions indicate that he proposes to rely particularly on certain provisions of the Industrial Relations Act and the Award. Section 121 of the Act provided:

    “121(1)       In relation to an industrial dispute involving public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.”

    The Public Service Act is such a law.  The Award provides, in par 6.2.2:

    “Where the Act, its regulations, determinations and terms and conditions made thereunder are inconsistent with the provisions of this Award, the latter will prevail.’

    Paragraphs 9.1 and 9.2 of the Award provide:

    “9.1It is the intention of the respondents to this Award to achieve the principal object in section 3(g) of the Industrial Relations Act 1988 by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

    9.2Accordingly, in fulfilling their obligations under clause 8 [which provides for the avoidance of disputes through a process of consultation and co‑operation], the respondents will make every endeavour to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.”

    Section 3(g) of the Industrial Relations Act provided that its principal object was to provide a framework for the prevention and settlement of industrial disputes which promoted the economic prosperity and welfare of the people of Australia by:

    “(g)helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

15. Mr Peacock relies also on s 90AA of the Industrial Relations Act, s 93A of that Act and certain provisions of the Recommendation of the General Conference of the International Labour Organisation set out in Schedule 13 of that Act as to the matters which the Commission was obliged to take into account when considering the terms of the Award.

16. The essence of Mr Peacock’s submissions, however, is that the provisions on which he relies, particularly those of the Award, are so repugnant to s 76V of the Public Service Act that they must be taken to have repealed it.  He relies on observations of Gummow and Hayne JJ in Kartinyeri v Commonwealth of Australia (1998) 152 ALR 540 at 564, 565 and on observations in the dissenting judgment of Kirby J in Qantas Airways Ltd v Christie (1998) 193 CLR 280. The problem, however, is that it is extremely difficult to see how any amount of reading together, or “conflation”, could be held to produce the consequence that s 76V has been repealed or had, in relation to Mr Peacock’s employment, any effect other than that which Wilcox J attributed to it. All that par 9.1 of the Award does is state an intention to achieve the principal object of s 3(g) of the Industrial Relations Act “by helping to prevent and eliminate discrimination on the basis of … age”; that reflects the terms of s 3(g) itself. All that par 9.2 of the Award does is require the respondents to the Award to “make every endeavour to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects”.  Accepting in full the effect which Mr Peacock attributes to par 6.2.2 of the Award, there is nothing in the provisions of par 9.1 and par 9.2 which provides obvious support to an argument that they, taken separately or in the context of the Industrial Relations Act and its various Schedules, actually resulted in the immediate repeal of s 76V. Nor do any of the provisions relied on provide obvious support for an argument that the Secretary is to be treated as if he had made a determination under s 76V(2) when, in fact, he made no such determination. It may be – it is not for me to express any view about this – that there are grounds on which it could be argued that the Secretary’s decision is (or was) open to review; but, again, it is not obvious that, if that were so, it would advance an argument that, despite the terms of s 76V(1), Mr Peacock’s employment did not come to an end when he turned sixty‑five.

17. If, of course, Mr Peacock had lodged a notice of appeal within twenty‑one days after Wilcox J made his orders, these matters could have been argued before the Full Court.  Had Mr Peacock sought to lodge a notice of appeal within a relatively short time after the expiry of the twenty‑one days, it may be that the Court, applying the elastic standard for which Jess v Scott is authority, would have given Mr Peacock leave to appeal so that, in that case also, he could have argued the points which he wishes to raise before the Full Court.  But a delay of five months, in the circumstances which I have described, is in my view a different matter altogether.  In the context of such a delay, the considerations to which I have referred, going to the apparent strength of Mr Peacock’s argument, leave the balance clearly favouring that certainty of result which is the purpose of the rule.  It follows that the application will be dismissed.

18. The Commonwealth seeks an order that Mr Peacock pay its costs on the footing that this application should be regarded as vexatious. Section 347(1) of the Workplace Relations Act 1996 (Cth) provides, in terms which are substantially identical to those of s 347 of the Industrial Relations Act:

    “347(1)A party to a proceeding (including an appeal) in a matter arising under this Act … shall not be ordered to pay costs incurred by any other party to the proceeding unless the first‑mentioned party instituted the proceeding vexatiously or without reasonable cause.”

19. The Commonwealth submits that since, it says, the only ground of the proposed appeal is a new argument not ventilated before the judicial registrar or Wilcox J but thought up since Wilcox J’s decision, this could not in any event be a proper case for leave; it submits also that, since Mr Peacock accepts that he may have an entitlement to commence judicial review proceedings, he will not be deprived of an opportunity to ventilate his arguments and that it should be inferred that the only reason he seeks to do so by an appeal must be the protection afforded by s 347 against an order for costs. It is sufficient to say that I do not in the circumstances consider the application vexatious. That being so, in my view s 347(1) applies. Accordingly there will be no order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:            28 June 1999

Counsel for the Respondent:	Mr D H Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	28 June 1999