Perkins, Lyle John v Cuthill, William John

[1981] FCA 50

Re: LYLE JOHN PERKINS
And: WILLIAM JOHN CUTHILL; KENNETH VINCENT LOUGHNAN; DESMOND JOHN LOVELOCK and
AUSTRALIAN TELECOMMUNICATIONS COMMISSION (1981) 52 FLR 238
No. VG67 of 1981
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Administrative law - appeal against decision of Disciplinary Appeal Board - application for order suspending operation of decision until determination by Court - principles applicable -

Administrative Decisions (Judicial Review) Act 1977 s.15(1)

Telecommunications Act 1977 s.61(2)(a)

Administrative Law - Review of decision of Disciplinary Appeals Board - Application for order suspending operation of decision pending hearing - Principles to be applied by court in exercising discretion to grant suspension - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 15 (1) - Telecommunications Act 1975 (Cth), ss. 61(2), 63.

HEADNOTE

The applicant was employed by the Telecommunications Commission and applied to the court under the Administrative Decisions (Judicial Review) Act 1977 (the Act) for an order reviewing a decision of a Disciplinary Appeal Board constituted under s. 61 of the Telecommunications Act 1975 which confirmed a decision of the Commission's delegate who transferred the applicant to a lower classification. The applicant sought an order under s. 15(1)(a) of the Act for an order suspending the operation of the decision until the hearing and determination of the review.

Held: (1) In order for the discretion under s. 15(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 to be exercised, the applicant must satisfy the court that reasons or circumstances exist which make it just for the court to make the orders sought, but those reasons or circumstances need not in any sense be "special" or "exceptional".

(2) It is relevant to the exercise of the discretion that the decision sought to be reviewed is demonstrably not capable of being supported at all as an exercise of the Board's function but it may not be sufficient in itself to show manifest errors on the face of the decision.

(3) Section 61(1) of the Telecommunications Act 1975 does not indicate a legislative intention that an order should be made under s. 15(1)(a) where there is a strong probability that the decision will be quashed on review.

HEARING

Melbourne, 1981, April 24, 30. #DATE 30:4:1981

APPLICATION.

Application for an order suspending the operation of a decision under review.

F. Callaway, for the applicant.

R. Huttner, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Cornwall Stodart & Co.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

J. ISLES

ORDER

1. The application for an order suspending the operation of the decision of the Disciplinary Appeal Board, given on 12 March 1981, until the hearing and determination of the matter be dismissed.

2. The fourth respondent shall file and serve upon the applicant's solicitors within 14 days of the date hereof a concise statement setting out precisely what contentions of both fact and law it intends to advance at the hearing.

3. The parties serve any notices to admit facts or documents within 7 days after the date hereof.

4. Any such notices be replied to within 7 days after service thereof.

5. The applicant file and serve any further affidavits to be filed on his behalf within 14 days after the time limited in (3) hereof, or, if any such notice to admit is served by him, within 14 days after receipt of the reply thereto.

6. The respondents file and serve any affidavits to be filed on their behalf within 10 days after the time limited in (5) hereof or of any earlier advice from the applicant that he does not intend to file any such further affidavits.

7. The applicant file any affidavits in reply thereto to be filed on his behalf within 7 days after the time limited in (6) hereof.

8. The matter be fixed for hearing commencing at 10.15 a.m. on Wednesday, 17 June 1981.

9. The costs of this hearing shall be costs in the cause.

10. Any party be at liberty to apply further herein. Orders accordingly.

JUDGE1

Lyle John Perkins (the applicant) has applied to the court under the Administrative Decisions (Judicial Review) Act 1977 (the Act) for an order of review in respect of a decision of the first, second and third respondents, who are the chairman and members of a Disciplinary Appeal Board (the board) constituted under s.63 of the Telecommunications Act 1975. The board's decision described the appeal by the applicant as being an appeal "against a punishment inflicted upon him by John Patrick Ahern", a delegate of the fourth respondent (the commission). The board "dismissed the appeal and confirmed the penalty imposed by the Delegate".

The board's decision, made under s.62(5) of the Telecommunications Act 1975, was given on 12 March 1981. The delegate had decided, on 9 December 1980, that the applicant should "be transferred to a position of a lower classification, namely, Senior Technical Officer Grade 1 $17,003 - $17,852, Design Standards Branch, Buildings Sub-Division, Services Division, Engineering Department, with effect from 15th December, 1980" and determined that the applicant should "be paid at the maximum salary of $17,852". Immediately before the delegate's decision the applicant's salary, as a Senior Technical Officer Grade 3, was $20,994 per annum.

The present hearing is of an application for directions and for an "order suspending the operation of the decision until the hearing and determination of this application or further order". Section 15(1)(a) of the Act reads as follows:
"15. (1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but -

(a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; . . . "

Mr Callaway of counsel, on behalf of the applicant, submitted that in considering such an application the court should apply the principles applicable to the grant of interlocutory injunctions. Neither he nor Mr Huttner, who appeared for the respondents (the first, second and third respondents making no submissions) referred me to any decision as to s.15(1)(a) of the Act which only came into operation on 1 October 1980. The only decision on the section of which I am aware is that of Franki J. in Capello v. Minister for Immigration and Ethnic Affairs (1980) 2 Administrative Law Decisions 1014. His Honour there was "not satisfied that the applicant has presented any arguable case" and refused to make "any further order under s.15 of the Act" but the reasons for judgment in my view do not suggest that it is sufficient for an applicant to demonstrate an arguable case.

I accept Mr Huttner's submissions that, in exercising its discretion under s.15(1)(a) of the Act the court should not apply the principles applicable to the grant of interlocutory injunctions. On the other hand, having considered the cases to which he referred, I do not consider that an applicant under s.15(1)(a) must show "special circumstances" (Scarborough v. Lew's Junction Stores Pty Limited 1963 V.R. 129 at p. 130 per Adam J.) or "exceptional circumstances" (Klinker Knitting Mills Pty Ltd v. L'Union Fire, Accident and General Insurance Co. Ltd (1937) 43 A.L.R. 298 per Lowe J.) or "special reasons" or something "exceptional" (Amoco Australia Pty Ltd v. Rocca Bros Motor Engineering Co. Pty Ltd (1972) 7 S.A.S.R. 268 at p. 325-6 per Wells J.). Those decisions were under Rules of the Supreme Courts of Victoria and South Australia, which contained the words "An appeal shall not operate as a stay of execution or of proceedings . . . except so far as the Court or a Judge may so order . . . ". In each of those cases the Supreme Court decided that the provision was so worded as to provide a general rule (i.e. no stay) and then permit an exception from that general rule and that it was necessary for the applicant to show "exceptional circumstances" or "special circumstances" or "special reasons" in order to justify a departure from the general rule.

I accept Mr Callaway's submission that s.15(1)(a) of the Act, unlike the provision in the Supreme Court Rules, does not provide a general rule and then permit an exception. It does not use the word "except" which, as Mr Callaway pointed out, tends to lend itself to a construction that an applicant is required to show "exceptional" circumstances. In my opinion s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought but it is not necessary for the applicant to show that those reasons or circumstances are in any sense "special" or "exceptional". Of course the discretion must be exercised judicially and not arbitrarily.

Mr Callaway, in submitting that reasons exist why the discretion should be exercised in favour of the applicant, contended that:

(a) there were manifest errors on the face of the decision;

(b) there is a relatively high probability that the decision will be quashed by the court after the full hearing of the matter;

(c) s.61(2)(a) of the Telecommunications Act 1975 demonstrates a legislative intention that a decision made under s.61(1)(a) of that Act transferring an officer to another position should not take effect until an appeal against that decision to a Disciplinary Appeal Board has been dealt with by that board. Further, that where "there is a strong probability that the decision of the (board) will be quashed, the applicant will be deprived of the protection which it is the policy of sub-section 61(2) to give him unless he could obtain interim relief", i.e. from the court.

As to the last contention (in (c) above) Mr Huttner relied upon s.61(2)(a) which reads: "A decision . . . does not take effect - (a) if the officer appeals against the decision - unless . . . a Disciplinary Appeal Board confirms . . . the decision". I accept his submission that those words refer to the occurrence of an event, namely, the fact of a board confirming a decision, and are "not concerned with whether the (board) has correctly done so or has erred in law". Accordingly, I am unable to come to the conclusion that the legislative intention is that a decision under s.61(1) should not take effect where the board's decision is under appeal and there is a strong probability that the decision will be quashed.

Although I have not accepted Mr Callaway's submission on this aspect, it does not follow that, in considering the application under s.15(1)(a) of the Act, the court should treat as irrelevant to the exercise of its discretion the terms of the decision of the board. In the course of his argument Mr Callaway referred to a hypothetical case of a decision by a board which was, on its face, demonstrably not capable of being supported at all as an exercise by the board of its function under the Act. In my view in such a case the terms of the board's decision would be relevant to the exercise of the court's discretion.

Mr Callaway's contentions, to which I have referred in (a) and (b) above, that there were manifest errors on the face of the decision of the board and that there is a relatively high probability that the decision will ultimately be quashed by the court, fall short of the hypothetical case of a decision which was on its face demonstrably not capable of being supported as an exercise by the board of its function. I do not consider that his contentions (a) and (b) - even if they were established - would on their own constitute sufficient reason for the court to exercise its discretion under s.15(1)(a) of the Act. It may be that in a particular case they would, when added to other facts, be sufficient.

In the present matter reference was made to the length of time which may elapse before the court decides the application to set aside the decision of the board. That aspect might assist the applicant if the period of time were likely to be long - having regard to the fact that, during that time, the applicant is performing different duties and, instead of being paid at his previous salary of $20,994, is being paid at an annual salary of $17,852 - at which lower rate he has been paid since 12 March 1981.

I consider that steps should be taken to give the applicant a speedy hearing and decision. In all the circumstances I do not consider that the court should, on the material in this case, exercise its discretion in favour of making an order suspending the operation of the decision of the board pending the hearing and determination of the application for a review. I considered the alternative course, discussed during the hearing, of making an order suspending the operation of the board's decision on condition that the applicant give an undertaking to "pay to any party adversely affected by the suspension such compensation (if any) as the Court thinks just in such manner as the Court directs" but decided against that course in this case.

I consider that the costs of the present hearing should be costs in the cause. I shall also grant liberty to any party to apply. I should perhaps refer to the fact that I was informed that the applicant was working as a Senior Technical Officer Grade 1 from 9 December 1980 until 12 March 1981 but he was paid by the commission at the higher salary (i.e. his previous salary) in respect of that period pending the hearing and decision by the board on 12 March 1981. Section 61(2) on its face provides that the "decision . . . does not take effect" and it would seem that that decision under s.61(1) was a decision (a) to transfer the applicant to a different position from that previously held by him, being a position with a lower classification; and (b) to determine the salary to be paid to the applicant. It may be that the applicant so worked by consent or by reason of the operation of some other section of the Act.

Mr Callaway and Mr Huttner were in agreement as to the directions to be given. Those directions contemplated a possible period of thirteen weeks before the Registrar would be asked to fix a date for trial but, after discussion during the hearing, they said it was likely that the matter could be ready for hearing within approximately six weeks. In the circumstances I have decided to alter the suggested times and to fix the date for hearing for 10.15 a.m. on Wednesday, 17 June 1981 in Melbourne. Although it was not discussed, I have also decided, with a view to defining the issues before the hearing, to direct that the commission shall within fourteen days serve upon the applicant's solicitor and file in the court a concise statement setting out precisely what contentions of both fact and law it intends to advance at the hearing. Such a statement shall not prevent it from advancing at the hearing any contention which is open to it on any additional material then before the court.

The other directions are as follows:

(1) that the parties serve any notices to admit facts or documents within seven days after the date hereof;

(2) that any such notices be replied to within seven days after service thereof;

(3) that the applicant file and serve any further affidavits to be filed on his behalf within 14 days after the time limited in (1) hereof, or, if any such notice to admit is served by him, within 14 days after receipt of the reply thereto;

(4) that the respondents file and serve any affidavits to be filed on their behalf within 10 days after the time limited in (3) hereof or of any earlier advice from the applicant that it hees not intend to file any such further affidavits;

(5) that the applicant file any affidavits in reply thereto to be filed on his behalf within seven days after the time limited in (4) hereof;

(6) that the costs of this hearing be costs in the cause;

(7) that any party be at liberty to apply further herein.