Perkins, Lyle John v Cuthill, William John

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…