Peek v Australian Government Solicitor (No. 2)
[2005] FCA 1343
•24 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
Peek v Australian Government Solicitor (No. 2) [2005] FCA 1343
PRACTICE & PROCEDURE – strike out application – Federal Court Rules O 11 r 16, O 20 r 2
ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether decisions sought to be reviewed were decisions ‘under an enactment’ – whether decisions final and operative - whether decisions/conduct excluded from review – whether decisions/conduct amenable to review under s 39B of the Judiciary Act 1903 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 7, Sch 1
Acts Interpretation Act 1901 (Cth) s 38
Judiciary Act 1903 (Cth) s 39B, Part VIIIB
Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) ss 16, 76, 77, 79
Safety, Rehabilitation and Compensation Act 1988 (Cth) s41A
Workplace Relations Act 1996 (Cth)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied
Hutchins v Collins, DCT (1996) 65 FCR 269, applied
General Newspapers Pty Ltd v Telstra Corp Ltd (1993) 117 ALR 629
Griffith University v Tang (2005) 79 ALJR 627, applied
Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lewin v ANU (1996) 138 ALR 1
Mair v Bartholomew (1991) 104 ALR 537
Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535Robinswood Pty Ltd v Federal Commissioner of Taxation (1998) 55 ALD 717
Sellar v Woods (1982) 45 ALR 113, Chittick v Ackland (1984) 1 FCR 254
Taranto (1980) Pty Ltd t/as Esquire Motor Inn v Madigan (1988) 81 ALR 208GREGORY JAMES PEEK v CHIEF EXECUTIVE OFFICER AUSTRALIAN GOVERNMENT SOLICITORS and MEGAN PITT
NSD 880 OF 2005
EDMONDS J
22 SEPTEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 880 OF 2005
BETWEEN:
GREGORY JAMES PEEK
APPLICANTAND:
CHIEF EXECUTIVE OFFICER
AUSTRALIAN GOVERNMENT SOLICITOR
FIRST RESPONDENTMEGAN PITT
SECOND RESPONDENTJUDGE:
EDMONDS J
DATE OF ORDER:
24 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to Order 11 rules 16(a) and 16(b) of the Federal Court Rules, the paragraphs in the applicant’s application filed on 30 May 2005, other than paragraphs A4 and A6 as they stand in the proposed amended application, be struck out.
2.The applicant pay the respondents’ costs of and incidental to the respondents’ notice of motion filed on 29 July 2005.
3.The applicant file and serve an amended application giving effect to these orders including identification of the grounds of his claim for relief and, insofar as he is able to do so, particulars of those grounds by Friday 16 September 2005.
4.The applicant file and serve points of claim by Friday 16 September 2005.
5.The respondents file and serve points of defence by Wednesday 21 September 2005.
6.The matter be re-listed for directions on Thursday 22 September 2005 at 9:30 am
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
NSD 880 OF 2005
BETWEEN:
GREGORY JAMES PEEK
APPLICANTAND:
CHIEF EXECUTIVE OFFICER
AUSTRALIAN GOVERNMENT SOLICITOR
FIRST RESPONDENTMEGAN PITT
SECOND RESPONDENT
JUDGE:
EDMONDS J
DATE:
22 SEPTEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EDMONDS J:
INTRODUCTION
These proceedings concern an employment dispute. The applicant (Mr Peek) is employed as a senior solicitor in the Sydney office of the Australian Government Solicitor (‘the AGS’). On 8 October 2004 Mr Peek took leave from his position and lodged a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). At the heart of Mr Peek’s claim is his contention that he should not be required to undertake a medical assessment before he returns to work.
On 5 January 2005 Mr Peek provided a certificate from his psychiatrist, Dr Pickering, advising that he was fit to return to work on certain conditions. The second respondent was not satisfied that it would be appropriate for Mr Peek to return to work without an independent medical assessment to provide further information on any assistance Mr Peek may require on his return.
On 17 March 2005 the second respondent requested Mr Peek to attend a medical assessment with Dr Parmegiani, a psychiatrist, on or about 6 April 2005. Mr Peek refused to attend. On 11 April 2005 the second respondent made a further request that Mr Peek attend a medical assessment. Mr Peek again refused to attend.
On 13 April 2005 Mr Peek’s claim under the SRC Act was accepted for the period up to 20 October 2004.
On 5 May 2005 the second respondent required Mr Peek to attend a medical assessment on 31 May 2005. In requiring Mr Peek to attend the assessment she relied on her powers under subs 36(3) of the SRC Act. Mr Peek did not attend the medical assessment on 31 May 2005.
On 11 May 2005 Mr Peek lodged a notice to Comcare pursuant to subs 38(2) of the SRC Act seeking a review of the second respondent’s requirement that he attend a medical assessment. The review has yet to be determined.
On 30 May 2005 Mr Peek filed an application (‘the Application’) seeking review of various decisions made and/or conduct engaged in by the respondents between 17 January and 19 May 2005.
NOTICES OF MOTION
By notice of motion dated 18 July and filed 20 July 2005, Mr Peek sought leave:
(1)To amend the Application, to the form attached to the notice of motion (‘the proposed Amended Application’);
(2)to file a statement of claim under subs 178(1) of the Workplace Relations Act 1996 (Cth), in the form attached to the notice of motion; or, in the alternative
(3)that the proposed statement of claim, in the form attached to the notice of motion, be joined to the current proceedings and heard together with them.
It is not clear why it is thought leave is necessary to file the statement of claim in (2) and, until it is filed, the leave sought in (3) is moot.
By notice of motion dated 28 July and filed 29 July, 2005, the respondents sought, inter alia, orders that:
(1)The Application save for pars A4 and A6 (first appearing) be struck out pursuant to Order 11 rules 16(a) and 16(b) of the Federal Court of Australia Rules as disclosing no reasonable cause of action and having a tendency to cause prejudice, embarrassment and delay.
(2)Further and alternatively, the Application save for pars A4 and A6 (first appearing) be dismissed or permanently stayed pursuant to Order 20 rule 2(a) of the said Rules on the ground that no reasonable cause of action is disclosed.
(3)If leave is granted to Mr Peek to file the Amended Application, that save for pars A4 and A6 (first appearing) the Amended Application be struck out pursuant to Order 11 rules 16(a) and 16(b) of the said Rules, as disclosing no reasonable cause of action and having a tendency to cause prejudice, embarrassment and delay.
(4)Further and alternatively, if leave is granted to Mr Peek to file the Amended Application, that save for pars A4 and A6 (first appearing), the Amended Application be dismissed or permanently stayed pursuant to Order 20 rule 2(a) of the said Rules on the ground that no reasonable cause of action is disclosed.
(5)If leave is granted to Mr Peek to file the proposed Statement of Claim under s 178(1) of the Workplace Relations Act 1996 that the whole of the Statement of Claim be dismissed or permanently stayed pursuant to Order 20 rule 2(a) of the said Rules on the ground that no reasonable cause of action is disclosed.
I listed both motions for hearing on 24 August 2005. I heard the respondents’ motion first on the basis that the respondents would address the proposed Amended Application. At the conclusion of the hearing I ordered that all of Mr Peek’s applications, other than those contained in pars A4 and A6, as those paragraphs stand in the proposed Amended Application, be struck out and that Mr Peek pay the respondents’ costs of and incidental to the respondents’ notice of motion. In the light of the first mentioned order, Mr Peek did not press his own motion or any part of it.
I indicated at that time that I would publish my reasons when delivering judgment on the substantive application. I stood the matter over to enable Mr Peek to file and serve an amended application giving effect to these orders, to incorporate in that amended application such changes as were thought necessary or desirable to clarify the grounds relied upon and, if possible, particulars of these grounds.
I have subsequently become aware that Mr Peek has filed an application seeking leave to appeal against the orders I made and, in those circumstances, I have prepared these reasons for judgment to enable that latter application to proceed.
THE RESPONDENTS’ MOTION
A copy of the proposed Amended Application is annexed to these reasons for judgment to enable the reader to identify the content of the Parts and paragraphs referred to.
Part A: ADJR Act Applications
(1) Pars A1, A2, A3 and A5
Part A seeks to invoke the Court’s jurisdiction under s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) to hear and determine applications to review decisions made and conduct engaged in pursuant to ss 5 and 6 of that Act. However, s 5 only allows review of a decision to which the ADJR Act applies and s 6 only allows review of conduct engaged in, or proposed to be engaged in, for the purpose of making a decision to which the ADJR Act applies.
The phrase ‘… decision to which this Act applies …’ is defined in subs 3(1) of the ADJR Act to mean:
‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not …):
(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of “enactment” ….’
The term ‘enactment’ is relevantly defined in the same subsection to mean an ‘Act’ or an ‘… instrument (including rules, regulations or by-laws) made under such an Act …’ with certain irrelevant exceptions. Pursuant to s 38 of the Acts Interpretation Act 1901 (Cth), the word ‘Act’ means an Act of the Parliament of the Commonwealth.
The proposed Amended Application fails to identify an enactment under which it is alleged that the decisions referred to in pars A1, A2, A3 and A5 were made.
The reference in these paragraphs to s 16 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) (‘the OHS Act’) does not cure or overcome this failure because that section does not require or authorise the ‘decisions’ which are sought to be reviewed.
A decision which is neither expressly nor impliedly required by an enactment and is authorised in only a general way, or through general powers of administration conferred by the enactment, does not have the character of a decision for which provision is made by or under a statute or which is given force or effect by an enactment for the purpose of s 3 of the ADJR Act. This principle was confirmed in Hutchins v Collins, DCT (1996) 65 FCR 269 at 272, where Black CJ said:
‘Where, however, the authorisation is very general it is difficult to see how an enactment may be said “to make provision” for a decision in the sense in which that expression was used by Mason CJ in Bond [infra] at 337. It seems to me that Mason CJ contemplated that there might be acts, capable of being called decisions, that were authorised in the sense of being within the general scope of powers conferred by an enactment but as to which the enactment could not be said to make provision, and which would therefore not be decisions under an enactment. Thus, a decision for which “provision is made” by or under an enactment “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 determination”.’
More recently, in Griffith University v Tang (2005) 79 ALJR 627 at [89], Gummow, Callinan and Heydon JJ held that the determination of whether a decision is ‘made … under an enactment …’ involves two criteria, both of which must be satisfied: 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 existing or new legal rights or obligations derived from the general law or statute.
Under the ADJR Act and, indeed, under the Judiciary Act 1903 (Cth), this Court is only concerned with decisions made under enactments. The Court is not concerned and has no jurisdiction to determine whether any common law rights have been superseded by statutory powers or whether the contract of employment has been superseded by other statutory provisions. A claim that there are no common law powers is not a claim which may be maintained under either Act.
Even if s 16 of the OHS Act was the source of the decision-making power, with respect to any alleged breaches thereof, s 77 of that Act provides that any proceedings for an offence against that Act may be instituted by Comcare or by an investigator. Moreover, s 79 expressly provides that the OHS Act does not create a right of any civil action in respect of breach of the provisions of the OHS Act.
The Respondents submit, correctly in my view, that s 79 of the OHS Act would exclude Mr Peek seeking judicial review under the ADJR Act and/or the Judiciary Act as part of civil proceedings where it is alleged that the employer, in this case the AGS, breached a provision of the OHS Act.
(2) Par A7
Paragraph A7 of the proposed Amended Application seeks review pursuant to s 7 of the ADJR Act even though it is included in Part A, which is confined to review of decisions made/conduct engaged in under ss 5 and 6 of the ADJR Act. There can be no grounds for review under s 7 of the ADJR Act in the absence of a duty to make a decision. The proposed Amended Application does not identify any ‘duty to make a decisions’ with respect to either the first respondent and/or the second respondent.
Section 40 of the SRC Act provides a duty to provide suitable employment where the employee is undertaking or has completed a rehabilitation program. This is not the case in the present matter.
Section 16 of the OHS Act does not require any decision to be made by either the first or second respondent.
Section 76(1)(a) – (e) of the OHS Act is concerned with the termination of employment and claims of victimisation. There is no factual basis to support any contention that s 76(1)(a) – (e) of the OHS Act applies to Mr Peek and further imposes a duty on the first or second respondent.
The allegations made in par A7 of the proposed Amended Application have no apparent foundation.
(3) Pars A1, A2, A3, A5 and A7
Additionally, the respondents point to the following matters as providing additional reasons why pars A1, A2, A3, A5 and A7 of the Application should be struck out.
First, they point out that in respect of the application for review under the ADJR Act, the Application is lodged out of time with respect to 13 decisions allegedly made between 17 January 2005 and 21 April 2005: see pars A1 and A5 of the proposed Amended Application. In this regard, they further submit that Mr Peek should not be granted leave to extend the time for these matters to be included in the Application. It is said that having regard to the factors identified by Wilcox J in Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 and the submissions made with respect to the merits of this part of the Application, any application for leave to include these matters should not be granted.
Second, it is said that Mr Peek is seeking review of a decision/conduct which is excluded from the operation of the ADJR Act. This argument is developed in the following way.
Part VIIIB of the Judiciary Act is concerned with the establishment and the functions of the office of the AGS. Subsection 55ZB(2) of the Judiciary Act empowers the CEO of the AGS to determine the terms and conditions of employment for AGS staff.
Section 55ZA provides that the CEO may delegate to an employee of the AGS all or any of the CEO’s powers.
Schedule 1, cl (za) of the ADJR Act excludes decisions under Part VIIIB of the Judiciary Act from review.
In the Application, Mr Peek sought review of decisions under Part VIIIB in pars A2 and A6. These parts have been deleted (although not identified on the proposed Amended Application) and moved to Part B of the proposed Amended Application under the s 39B claim.
In the proposed Amended Application Mr Peek continues to seek to review decisions of both Respondents with respect to decisions made pursuant to Part VIIIB of the Judiciary Act: see par A2.
The Respondents submit that any decisions made under Part VIIIB of the Judiciary Act are excluded from review. I agree.
Third, it is said that the Court should only review ‘decisions’ which are final and operative: see subs 3(2) of the ADJR Act and Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535 at 543-4.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, 365, 369, the High Court addressed the concept of a reviewable ‘decision’ for the purposes of the ADJR Act. The Court held that a conclusion reached that is a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable error: Bond at 337.
The Respondents submit that the alleged decisions referred to in pars A1(a) – (m) and A5(a) – (c) of the proposed Amended Application are concerned about events rather than final and operative decisions. They represent at the very best a step along the way to the second respondent’s decision on 5 May 2005 to direct Mr Peek to attend a medical assessment. I agree.
Fourth, with respect to the references to ‘conduct’ alleged in pars A1(a) – (m), A2, A3, A4 and A5 in the proposed Amended Application, the respondents submit that Mr Peek makes no distinction between those matters which concern only decisions and those which concern only conduct. The proposed Amended Application does not identify what conduct of the respondents is ‘conduct for the purpose of making a decision under an enactment’ within purpose of subs 6(1) of the ADJR Act. There is nothing which distinguishes conduct which is part of the decision-making process and specific conduct which is reviewable under s 6 of the ADJR Act. Again I agree, although in the case of par A4, it does not provide a ground for it being struck out; it can be cured by Mr Peek varying par A4 of the Application.
Finally, it is submitted that the proposed Amended Application at pars A5 and A6(c) seeks review of the alleged conduct of ‘others’ and ‘such other persons involved’. The allegation is vague and uncertain. No ‘other persons’ are identified. No conduct of any other person is identified. Again I agree; the same can be said for pars B(1)(a) and (c) (see below).
Part B: Judiciary Act Applications
(1) Pars B1, B2 and B3
Part B seeks to invoke the Court’s jurisdiction under s 39B of the Judiciary Act and the SRC Act (subs 50(4A), 52A(6); cf., s 108(second)]. It also asserts jurisdiction said to be conferred on the Court by the OHS Act, but no such jurisdiction is conferred by that Act.
Paragraph B1 seeks declarations (pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth)) that the decisions and/or conduct of the first and second respondents set out in pars A1 – A7, including decisions made, and conduct engaged in by other officers of the Commonwealth – that is, other than the first and second respondents – as well as the decisions of the first respondent, made on 5 May 2005, pursuant to s 55ZA of the Judiciary Act and s 41A of the SRC Act to:
(1)Delegate all of her powers as an employer in relation to Mr Peek to the second respondent; and
(2)Delegate to the second respondent all of her powers as a rehabilitation authority under Part III of the SRC Act in relation to Mr Peek,
and the conduct of the second respondent, or such other persons involved, in procuring these delegations from the first respondent, are unlawful exercises of the employment power under subs 55ZB(1) of the Judiciary Act and the ‘common law’ powers purportedly conferred by s 16 of the OHS Act.
It is a well accepted principle that the Court has no jurisdiction to review matters of private law, such as contracts or the common law: Sellar v Woods (1982) 45 ALR 113, Chittick v Ackland (1984) 1 FCR 254, Taranto (1980) Pty Ltd t/as Esquire Motor Inn v Madigan (1988) 81 ALR 208, Mair v Bartholomew (1991) 104 ALR 537, General Newspapers Pty Ltd v Telstra Corp Ltd (1993) 117 ALR 629 at 636, Lewin v ANU (1996) 138 ALR 1 and Robinswood Pty Ltd v Federal Commissioner of Taxation (1998) 55 ALD 717.
In the proposed Amended Application, Mr Peek appears to be seeking a review of common law powers based on an assertion that the source of the common law powers is s 16 of the OHS Act – see par B1. Section 16 of the OHS Act sets out the duties of employers in relation to their employees and is not the course of common law powers. Moreover, as indicated in [23] and [24] supra, the OHS Act establishes a particular regime in relation to claims under that Act which would exclude a claim such as the present one.
Moreover, there is no issue that the second respondent is an employee of the AGS – so much is pleaded in par B1(b) – that s 55ZA of the Judiciary Act empowers the first respondent to delegate to the second respondent all or any of the first respondent’s powers and that s 41(a) of the SRC Act empowers the first respondent to delegate to the second respondent all or any of her powers as a rehabilitation authority under Part III of the SRC Act. It follows, in my view, that neither decision of the first respondent – the delegations to the second respondent – nor the unidentified conduct of the second respondent in allegedly procuring these delegations, can be unlawful exercises of the ‘employment power’ of the first respondent under subs 55ZB(1) of the Judiciary Act or unlawful exercise of the ‘common law’ powers purportedly conferred by s 16 of the OHS Act.
Paragraph B2 seeks both injunctive relief and prohibition requiring the respondents to cease their alleged unlawful conduct in (a) requiring Mr Peek to attend a psychiatric assessment before being granted permission to return to work; (b) directing Mr Peek not to attend for duties until such assessment, and indefinitely thereafter, at the alleged absolute discretion of the second respondent; (c) to brief the examining doctor on an erroneous and misleading and prejudicial basis; and (d) to terminate or suspend the applicant’s salary from 16 May 2005, and treat him as on unpaid leave due to illness or injury. Again, there is no indication as to the statutory basis upon which such conduct is said to be unlawful and no such basis, other than the ‘common law’ powers said to be sourced in s 16 of the OHS Act has been pleaded. For the reasons already advanced, any allegation of unlawfulness by reference to such powers will not attract the Court’s jurisdiction under s 39B of the Judiciary Act or under the SRC Act.
Paragraph B3 seeks a writ of mandamus compelling the respondents to permit Mr Peek to return to active employment in accordance with its statutory duties but does not indicate the particular duty on that part of each respondent for which mandamus is sought. To the extent that the application refers to par A7, the observations made in [25] – [29] supra are equally relevant.
It follows, in my view, that pars B1, B2 and B3 should also be struck out along with pars A1, A2, A3, A5 and A7.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Associate:
Dated: 22 September 2005
Solicitor for the Applicant:
The applicant appeared in person
Counsel for the Respondent:
Mr J J Fernon SC with Ms K Eastman
Solicitor for the Respondent:
Carroll & O’Dea
Date of Hearing:
24 August 2005
Date of Judgment:
22 September 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 880 OF 2005
BETWEEN:
GREGORY JAMES PEEK
APPLICANTAND:
CHIEF EXECUTIVE OFFICER
AUSTRALIAN GOVERNMENT SOLICITOR
FIRST RESPONDENTMEGAN PITT
SECOND RESPONDENT
JUDGE:
EDMONDS J
DATE:
22 SEPTEMBER 2005
PLACE:
SYDNEY
ANNEXURE
I certify that the following 17 pages comprise a copy of the annexure referred to in [14] of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Associate:
Dated: 22 September 2005
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