Peacock v HREOC - [2004] FMCA 466

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEACOCK v HREOC

[2004] FMCA 466

HUMAN RIGHTS – Where applicant’s employment with government employer terminated after employer refused to exercise its discretion and extend period of service beyond age 65 years – where HREOC found that effect of Public Service Act was to nullify/impair equality of opportunity in employment – matter reviewed by Wilcox J and referred back to HREOC – HREOC Commissioner followed decision of Wilcox J which he interpreted as preventing a finding that the Act had the effect stated in first HREOC report – where application for review declined by Moore J and the full bench – where applicant sought Presidential Review of Commissioners finding – where President of HREOC declined to make further inquiries – whether President entitled on the evidence before him to conclude that the complaint was lacking in substance – whether Commissioner should have considered whether applicant’s right to equality before the law was infringed – whether Commissioner should have conducted a full inquiry under s.11(1) HREOC Act over and above the s.31 inquiry into discrimination in employment.

Public Service Act 1922 (Cth), s.76V(1), (2)
Human Rights and Equal Opportunity Commission Act 1986, ss.11(1)(f), 20(2)(c)(ii), 29(3), 31(b), 32(1), 35
Administrative Decisions (Judicial Review) Act 1977, s.5
Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(b)
International Covenant on Civil and Political Rights, Art 2.1

Peacock v HREOC (2003) 73 ALD 341
Peacock v Commonwealth of Australia (1998) 88 FCR 110
SBBS v MIMIA [2002] FCAFC 361
MIMIA v SBAN [2002] FCAFC 431
NAOS of 2002 v MIMIA [2003] FCAFC 142
SCAA v MIMIA [2002] FCA 668
SBBO v MIMIA [2002] FCA 963

Applicant:

MORTIMER JOHN PEACOCK

Respondent:

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

File No:

SZ 323 of 2004

Delivered on:

28 July 2004

Delivered at:

Sydney

Hearing date:

8 July 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Jeremy Kirk

Solicitors for the Respondent:

HREOC

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs calculated in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 323 of 2004

MORTIMER JOHN PEACOCK

Applicant

And

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

Respondent

REASONS FOR JUDGMENT

On 19 July 1996 Mr Peacock’s employment with the Commonwealth of Australia as Director of Psychology – Navy terminated pursuant to the provisions of s.76V of the Public Service Act 1922 (Cth). Mr Peacock had sought and been refused an extension of his period of service pursuant to s.76V(2). The fact that Mr Peacock was required to retire at age 65 and was not granted the discretionary right to remain in employment at a time when the Commonwealth had recognised the discriminatory nature of s.76(V) and was in the process of amending the Public Service Act brought the parties into contention through a series of HREOC enquiries and Federal Court litigation. It is as well to set out that history although because all the relevant decisions are either publicly available or have been substantively commented upon in publicly available decisions, I would not propose to summarise them in any detail.
Mr Peacock made a complaint under s.32(1) of the Human Rights and Equal Opportunity Commission Act 1986 (the “Act”) and a report was made by Commissioner Sidoti pursuant to s.35. That report found that s.76(V) of the Public Service Act did have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation and awarded Mr Peacock damages representing six months pay. The Commonwealth sought review of that decision and Mr Peacock made a cross application in relation to the award of damages. That matter was heard by Wilcox J. His decision is reported at 181 ALR 726. His Honour granted review to both the Commonwealth and the applicant. The matter was referred back to the Commission which provided a further report, this time by Commissioner Ozdowski. The Commissioner followed the decision of Wilcox J which he interpreted as preventing him from making a finding in the circumstances of the case that the enactment had the effect of nullifying or impairing equality of opportunity of treatment in employment or occupation. Mr Peacock sought review of that decision in the Federal Court where the matter was considered by Moore J whose decision is found at [2002] FCA 984. Moore J declined to grant review holding that the Commissioner did not err in dealing with the applicant’s complaint on the basis that he was precluded by what was said by Wilcox J from considering the question of whether there was a relevant inequality as between the applicant and other persons seeking a favourable exercise of the discretion conferred by s.76V(2).
Mr Peacock appealed the decision of Moore J to the Federal Court. At the same time he also (and belatedly) sought leave to appeal the decision of Wilcox J. That leave was refused. The Full Bench in a decision cited as Peacock v HREOC (2003) 73 ALD 341 dismissed the appeal. There were also proceedings in the Industrial Relations Court of Australia brought by Mr Peacock alleging unfair dismissal. Mr Peacock was successful before Judicial Registrar McIlwaine on 2 July 1998. But upon review by the Federal Court (Wilcox J) the decision was overturned, the court finding that the termination was not a termination by an employer but was one resulting from the operation of an Act of Parliament; Peacock v The Commonwealth of Australia (1998) 88 FCR 110.
On 6 February 2003 Mr Peacock wrote to the then President of HREOC Professor Alice Tay:
“I seek an inquiry in the form of a Presidential Review into Commissioner Ozdowski’s refusal to enquire into an act inconsistent with or contrary to my human right of equality before the law. The refusal was confirmed in a letter from HREOC dated 8 February 2002 on HREOC file C13369. I would submit that the Commission is not immune from the provision of its own Act and that Commissioner Ozdowski’s refusal is itself an act (see s.3(3)(a) of the HREOCA 1986) “under an enactment” that is inconsistent with or contrary to my human right of “equality before the law”. Indeed it is more it is a breach, by Commissioner Ozdowski, of his statutory obligations under his governing statute.
Pursuant to ss.20(1) and 12 of the Act an inquiry under s.11(1)(f) is mandatory. The Commission has a discretion not to enquire if and only if certain conditions outlined in s.20(2) of the Act apply. None of the conditions in s.20(2) were met in my case. …”
On 22 January 2004 the current Chairman of HREOC John von Doussa QC wrote to Mr Peacock:
“Dear Mr Peacock
I refer to your correspondence to the Commission dated 6 February 2003 alleging a breach of human rights by Commissioner Sev Ozdowski, the Human Rights and Equal Opportunity Commission, under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOCA) in relation to his decision not to inquire into your allegation that you had been treated in a manner inconsistent with your right to equality before the law. Since your initial correspondence you have written a number of other letters to the Commission in which the issues you are seeking to raise with the Commission and who you are complaining about appear to expand and to change. Many of the issues that you have raised pertain to matters that are beyond the jurisdiction of the Commission. In this letter I will respond to what I consider to be the main issues raised by your correspondence.
After careful consideration of the information you have provided and the history of this matter I have decided to decline to inquire further into your complaint on the basis that your complaint is misconceived or lacking in substance, or it has been adequately dealt with. I make this decision under sections 20(2)(c)(ii), 20(2)(c)(iii), 20(2)(c)(v) and 32(3)(c)(ii), 32(3)(c)(iii) and 32(3)(c)(v) of the HREOCA. My reasons follow.”
It is in respect of that decision that Mr Peacock has sought review from this court.
At the commencement of proceedings on 8 July 2004 Mr Peacock filed in court an Amended Application for an Order for Review and a set of submissions headed “Explication of Additional Grounds”. The following exchange took place:
HH:       When you say the additional grounds, do you mean the new grounds?
Mr P:      The new grounds yes.
HH:       So this document covers all the grounds you are relying upon, does it?
Mr P:      That’s correct Your Honour.
HH:       It is, that’s correct is it?
Mr P:      That is correct.
HH:Alright, I just want to be sure. So if I refer to this in my judgment this is a gun document, is it?
Mr P.That’s the gun document. I’ll stand or fall on that.”
The grounds set out in the Amended Application are set out below:
“3.         Grounds
The grounds of the Application are that:
(a)HREOC failed to appreciate that the Applicant’s complaint was not one of age discrimination per se but of equality before the law in respect of age discrimination. The Applicant has been denied equality pursuant to three Acts, The HREOCA 1986, the “statutory grounds of discrimination” in the Industrial Relations Act 1988 and the PSA 1922.
(b)HREOC did not take cognizance of the fact that the rights and obligations enshrined in the Covenant (and Schedule 2 of the Act is declared in s3(i) to be the Covenant as it applies in relation to Australia) are separate and distinct to those of the Convention. Pursuant to the Covenant the Commonwealth has undertaken “to respect and to ensure to all individuals subject to its jurisdiction the rights recognised in the Covenant” (Art 2(1)). The failure or refusal of the Commonwealth to honour its undertaking was an act of omission as defined in s3(3) of the HREOCA 1986. As such it meets the criteria of an “act for purposes of s11(1)(f)).
(c)The right to equality before the law and an effective remedy for a denial of this right (and both the Court and HREOC have conceded the discrimination before the law) are basic human rights enshrined in The Universal Declaration of Human Rights (see Clauses 7 and 8 of the Declaration) and in the Covenant. As HRC Geneva sees it the Commonwealth has guaranteed the “Applicant” these rights by ratifying the Covenant.
(d)It is not possible, pursuant to the external affairs power (s51(xxix) of the Constitution), to enact a law purporting to give effect to a treaty but inconsistent with it. If the HREOC, as the “competent tribunal” established to implement the Covenant, does not meet the criteria or requirements of the Covenant then the HREOCA 1986 is invalidated.
(e)The President, in his review of Ozdowski C’s decision not to inquire into the Applicant’s original complaint under s11(1)(f) of the HREOCA made further findings of fact which, with respect, he was not entitled to do in the absence of further inquiry pursuant to s11(1)(f).
(f)The Applicant relies, inter alia, on the following grounds from s5 of the AD(JR) Act 1977
5(1)(b) required procedures were not observed.
5(1)(f) the decision involved an error of law.
5(1)(j) the decision was otherwise contrary to law.
5(1)e) / 5(2)(d) the exercise of a discretionary power in bad faith.
5(1)(e) / 5(2)(b) failing to take a relevant consideration into account.
Grounds (e) and (f) are explicated overleaf at ps 2(a) and 2(b).”
Mr Peacock believes that it is important that a clear distinction be drawn between enquiries by HREOC under s.11 of its Act and enquiries under s.31. He accepts that he has had an inquiry under s.31 which is part of Division 4 – Functions relating to equal opportunity in employment but claims that he has not had an inquiry under s.11(1) and in particular s.11(1)(f) which describes the functions of the Commission as:
“To enquire into any act or practice that may be inconsistent with or contrary to any human right, and -
(i)Where the Commission considers it appropriate to do so – endeavour by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii)Where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission does not consider it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement – to report to the Minister in relation to the inquiry;”
The power to hold an inquiry contained in this sub-section is subject to a discretion found at s.20(2) not to enquire. It is against the exercise of this discretion by von Doussa P that relief is sought. Mr Peacock argues that the inquiry under s.31(b) was only a partial inquiry and he wants a full inquiry under s.11(1)(f).
During the course of Mr Peacock’s submissions the following exchange took place at [T10]:
“HH:In what way do you say you didn’t get equality before the law, just let me understand that?
Mr P:Because the Commission failed to enquire into the complaint of discrimination before the law.
HH:Isn’t that bit circular?
Mr P:No, they’ve inquired under section 31(b) and they rely on an inquiry under section 31(b) as being equivalent to an inquiry under section 11(1)(f) because they involve different legal considerations.
HH:… They inquired under section 31(f) as to whether or not you had been discriminated against in the manner in which Mr Ayres made his decision, is that right?
Mr P:The question put by Wilcox J was how – he admitted the discrimination he said, but how did that discrimination affect the equality or opportunity in employment and I’m saying that - - -
HH:Yes you had an inquiry into - - -
Mr P:Discrimination in employment.
HH:- - - whether or not you had discrimination in employment. Now, you say you are entitled to an inquiry as to whether your human right of equality before the law was infringed in some way, is that right?
Mr P:That’s correct Your Honour.
HH:What way do you say your human right to equality before the law was infringed?
Mr P:The equality in respect of who in occupation can only apply to equality of equal opportunity and treatment in employment. The article 26 merely states that [a] discriminatory application of the law is sufficient and Wilcox J has [found] the discriminatory application.”
At [T13] Mr Peacock further clarified his argument:
“Mr P:I am pointing out that the act of the secretary was the act of the Commonwealth and the differential application of the law against me as opposed to other people is a discriminatory application of the law and it has got nothing to do with discrimination of employment. The secretary when he exercises his discretion under 76V(2) is applying a law, he’s not applying 76V(1), he’s applying a law in relation to his discretion but it’s also a Commonwealth law …”
By the end of the hearing I understood Mr Peacock’s complaint to be that no inquiry had ever been held into whether or not the exercise of Mr Ayres’ discretion under s.76V(2) in circumstances which limited his consideration to factors particular to the department as opposed to factors particular to the Commonwealth as an employer in general, breached Mr Peacock's human right to equality before the law because:
“It affected my equality at law because the other people were differentially [treated] by the Commonwealth and the Commonwealth had sent around a circular to all departments to make sure that everyone was treated equally and that’s the one the Taxation Department seized on and that’s the one most other departments seized on. Its circular no 1995/33 – Public Service Commission Abolition of Compulsory Age Retirement… Under the Public Service Act I was employed by the Public Service, I was only attached to Defence, so as a public servant I had to have equal treatment. If you have a different set of rules to apply to one department …
HH:If that’s your argument, that will be your argument if you get the inquiry you seek.
Mr P: Yes.
HH:What you say is, I am entitled to an inquiry. What Mr Kirk’s says is, well, you have had your inquiry because in effect, anything that will be inquired into has already been inquired into.
Mr P:A partial inquiry under s.31(b) as I’ve said in my attachment is not equivalent to a full inquiry under s.11(1)(f) … I haven’t had an inquiry because the inquiry was supposed to be futile.
HH:… You sought review of Commissioner Ozdowski and you didn’t get it, that’s the problem and now you are seeking review of the reviewer, this is the big problem.
Mr P:The reviewer has not exercised his discretion in a bona fide manner according to law. I’m saying that he cannot take an inquiry that has previously been conducted under s.31(b) as being equivalent to an inquiry under section 11(1)(f), they are two separate and distinct rights.” [T33-34]
The relevant section of the International Covenant on Civil and Political Rights is Article 2.1:
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant without distinction of any kind such as race colour sex language religion political or other opinion national or social origin property birth or other status.”
It is accepted for the purposes of these proceedings and by von Doussa P that “other status” includes age. Article 26 of the Convention states:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Von Doussa P in his decision says:
“Article 26 of the ICCPR provides among other things that the law itself should not be discriminatory or applied in a discriminatory by public authorities on a number of grounds including … other status. I consider that age is a ground that could come within the terms of “other status”. There is no evidence before me to suggest that in deciding not to inquire into your allegations of a breach of human rights that the Commission or Commissioner Ozdowski subjected you to an act or practice in its administration of the HREOCA that discriminated against you on the basis of the grounds listed above. There is no evidence that this decision constitutes a distinction, exclusion or preference in relation to you that was based on your age or any other relevant ground.”
It seems to me that this paragraph goes to the heart of the issue. The President cannot review Commissioner Ozdowski’s decision. That had already been subject to review by Moore J and by the Full Bench of the Federal Court. It was within that process of review that Mr Peacock should have raised the Commissioner’s alleged failure to recognise that Mr Peacock’s human rights had been breached by the manner in which Mr Ayres came to his conclusions. The breach being the failure to look at the decision of Mr Ayres on a whole of public service approach. There was certainly an argument, at least at the commencement of Mr Peacock’s travails, that he was not being treated equally with other public servants because other departments of state adopted a far more conciliatory approach to the exercise of a discretion under s.76V(2) in the light of the government’s decision to abolish the discriminatory sub-section 76V(1). That argument was not made before Wilcox J or before Commissioner Ozdowski or before Moore J or the Full Bench. The nearest that Mr Peacock came to raising the matter was before the Full Bench but even there it was not put in the manner in which it is put before me. In the Judgment of North J at [25] His Honour says:
[25] “The appellant has turned away from the argument dealt with by Moore J. On the hearing of the appeal the argument that was sought to be advanced was that the comparator class should all be non-executive officers “in employment” under the PSA. Since the employment of each of them will terminate, if it has not previously terminated, when the officer retains the age of 65 years. The previous argument, that the provision operates on a class or sub-set of officers who are approaching their 65^th birthday is expressly eschewed.
[26] The argument now sought to be pursued was not raised before His Honour. The application for an order of review of the decision of the second inquiry identified the question the Commissioner ought to have addressed as whether there was relevant inequality between the appellant and other persons seeking a favourable exercise of the discretion conferred by s.76V(2). Whilst it is possible that the description might be read more widely, we do not understand it to be suggested that the argument identified by the appellant in the applicant for an order of review was different from that dealt with by Moore J. The Notice of Appeal from His Honour’s decision is conformable with this. It does not contain a ground such as that now sought to be advanced. Leave to amend would be necessary for that purpose. The respondent submits that the appellant should be confined to the grounds presently raised and in respect of which there might be said to a material error in Keifel and Allsop JJs’ decision.”

Their Honours declined to consider this issue as did North J. In his Judgment at [42] His Honour said:
“The appellant had the opportunity to institute an appeal against the judgment of Wilcox J. He did not do so. Instead, he argued before Commissioner Ozdowski that his case fell within the theoretical possibility left open by Wilcox J. The appellant, thus, took a deliberate decision not to appeal, and to conduct a further proceeding on the basis of the law established by the Judgment of Wilcox J. Even if the approach taken by Wilcox J is wrong, it would bring the process of review into disrepute if the appellant was now permitted to contend against the Judgment of Wilcox J after relying upon that Judgment before Commissioner Ozdowski and before Moore J. The court would refuse discretionary relief under the ADJR Act in these circumstances.”
It seems to me therefore that insofar as Mr Peacock is seeking his s.11(1)(f) inquiry on the grounds that it was not given to him by Commissioner Ozdowski that is a matter which could and should have been previously canvassed and can no longer be. I could not tell von Doussa P to reconsider his own decision on that basis. It might have been possible for me to review the decision of von Doussa P if Mr Peacock had established that he had erred in a relevant manner in concluding that Commissioner Ozdowski had not subjected him to an act or practice that discriminated against him. But Mr Peacock did not provide such evidence and therefore the President was perfectly entitled to conclude under s.20(2)(c)(ii) that that complaint was lacking in substance.
At [T34] Mr Peacock stated that he would rest upon his assertion that the President did not exercise his discretion bona fide. But there does not appear to be any suggestion by Mr Peacock that the use of the phrase “bona fide” is made in the perjorative sense with which the court is accustomed in cases brought under the Migration Act 1958 (Cth). It is, therefore, not necessary to provide a dissertation on the requirements of such an allegation as determined by the Full Bench in cases such as SBBS v MIMIA [2002] FCAFC 361; MIMIA v SBAN [2002] FCAFC 431; NAOS of 2002 v MIMIA [2003] FCAFC 142 and by von Doussa P when sitting as a Justice of the Federal Court in SCAA v MIMIA [2002] FCA 668; SBBO v MIMIA [2002] FCA 963 Mr Peacock’s complaint is discussed in three sub-paragraphs of his explication. The first is in the following form:
“4. Complaint A. HREOC’s refusal to give equal protection:-
(a)Pursuant to s’s 10A(1) and 20(1) of the HREOCA inquiry under s11(1)(f) was mandatory. The complaint was not that Ozdowski C discriminated against the Applicant on the basis of age but that he failed to offer the equal protection of the remedial law in respect of discrimination by others. His governing statute mandated that he do so. The HREOC is not immune from its own Act and the complaint was in accordance with the provisions of the Act and had not previously been inquired into. S20(2) of the HREOCA had no application but sections 5(1)(f) and/or 5(1)(j) of the AD(JR) do. (Refer again JCO 8 p.141).”
Mr Peacock is wrong when he asserts that a complaint under s.11(1)(f) is mandatory. Section 11(1)(f) is subject to s.20(2) which gives the Commission a discretion not to enquire.
The second sub-paragraph in the explication is as follows:
“(b)Ozdowski C made no finding in regard to the discriminatory application of the law 76V(2) by the Commonwealth nor did he even address the issue either in respect of s31(b) or s11(1)(f). At no stage did the Commissioner find that the complaint under s 11(1)(f) was misconceived or lacking in substance. Without giving reasons and contrary to his statutory duty he said that inquiry was “inappropriate at that stage” (p.54 of JCO 3 refers). No section of the HREOCA gave the Commissioner power to rely on such a contention as the two rights were not mutually exclusive e.g. no election was required and nothing in respect of the Applicant’s discrimination before the law had passed into judgment. Indeed Ozdowski C did not even invoke s35(3)(b)(i) to find that the existence of an act or practice had not been established. He invoked s35(3)(b)(ii) to say that the act did not constitute discrimination (in employment). Pursuant to the HREOCA 1986 the Applicant had a statutory right to pursue his complaint under s11(1)(f). A statutory right is not subject to estoppel nor can the Courts abrogate this right. Paras 2 to 7 inclusive of the Applicant’s affidavit are relevant.”
It seems to me that the points made here are points which should have been made in the application for review of the Commissioner’s decision. It should have argued before Moore J and the Full Bench that he was entitled to an order from them that Commissioner Ozdowski consider the matter raised by him as an alleged breach of his human right to equality before the law. He may well not have succeeded for all the reasons given by Mr Kirk in his helpful written submissions to me in relation to this case. These are summed up at [T20] where he said:
“As set out in our written submissions the difference between an age discrimination complaint is that one is talking about discrimination the converse of which is equality. The complaint here is talking about equality the converse of which is discrimination. They are effectively two sides of the same coin. Now that is reflected in the quotation in the written submissions from Gauldron and McHugh JJ in the Castlemaine Tooheys case, completely different context admittedly, s.92 of the Constitution, but at its heart they are very much the same notions, discrimination and equality are converse things.”
And at [T21]:
Kirk: “The question then would be in the exercise of that power and the difference between the way the ATO has exercised it and the Department of Defence has exercised it, and the fact that it is suggested that the Department of Defence has been more restrictive in the way they exercised it, in them being much more restrictive specifically and in comparison to the ATO, have they done something which is either age discrimination the way the complaint was put, or to fail to give him equality before the law by taking into account an age consideration. One can’t talk about equality before the law in the abstract one needs to say because he treated something differently which shouldn’t be treated differently.”
I am satisfied that this was the argument being advanced by the President to deny a further inquiry on the ground that the subject matter of the complaint had been adequately dealt with by the Commissioner – s.20(2)(c)(v). As he said at page 6 of his letter:
“Notwithstanding this, your characterisation of your complaint as one of a breach of your human right to equality before the law rather than age discrimination in employment or occupation would lead me to the same conclusions.”
In other words reclassifying the complaint and seeking an inquiry under a different section of the Act does not make the complaint a different one or (for the purposes of my decision) one which could not have been raised previously and thus not fall foul of the dicta of the Full Bench.
The third matter raised by Mr Peacock is as follows:
“(c)If the President in exercising his discretion has sought to rely on a partial inquiry under s31(b), that found there was an act but that it was not discrimination in employment, to a full inquiry under s11(1)(f) (and the applicant contends that this is an error of law and/or contrary to law) then mandatory rules apply to an inquiry under s11(1)(f) that finds that the act was not established (and this is what the President is now arguing in a further finding of fact contrary to Ozdowski C’s finding). The mandatory law is set out in s29(3) of the HREOCA. The Commission has to furnish a report stating that there was no act established. (s5(1)(b) of the AD(JR) has relevance here).”
This paragraph seems to me to be a rolled up version of the two previous paragraphs and suffers from the same difficulties. In particular that of the mandatory rule requirement which is plainly incorrect and Mr Peacock’s confusion concerning the involvement of s.29(3).
In summary I do not consider that any of the grounds for review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 suggested by Mr Peacock have been made out. When one tears away all the confusing argument his case is a simple one. He says that his original complaint against Mr Ayres should have been looked at in a manner in which it was not. That failure could have resulted in him being wrongfully discriminated against and he was entitled to an inquiry as to whether that was the case. He claims he did not get that inquiry. But the reason he did not get that inquiry was not because of the discriminatory action of Commissioner Ozdowski or of any reviewable error on the part of President von Doussa. It was a result of him not raising the matter in the way in which he now seeks to put it when he made his original complaint. He became boxed in by rulings given in respect of the complaints he had made and by the reluctance of courts to grant him a new hearing every time he thought of a different way in which to put his argument. I too am bound by those decisions.
The application is dismissed. The applicant must pay the costs of the respondent which should be calculated in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 28 July 2004