Pinchback, Brian Terence v Wilenski, Peter

[1983] FCA 323

Re: BRIAN TERENCE PINCHBACK
And: PETER WILENSKI
No. ACT G25 of 1983
Administrative law
6 IR 111

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

ADMINISTRATIVE LAW - Judicial review - Application for extension of time to lodge application - Directions under regulation 116 of Public Service Regulations - direction operative for short period - undue delay.

Administrative Decisions (Judicial Review) Act 1977

Public Service Act 1922

HEARING

CANBERRA

#DATE 10:11:1983

ORDER

1. The application is dismissed.

2. The applicant pay the respondent's costs of the application.

JUDGE1

Mr. Brian Terence Pinchback ("the applicant") has applied to this Court under paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") for an extension of the time within which to lodge an application under the Act for an order of review in respect of a decision said to have been made by Mr. Kenneth Norman Jones on or about 20 September 1982 under regulation 116 of the Public Service Regulations. The extension sought is up to and including 14 June 1983 when the application for the order of review was filed.

At the time the decision was made Mr. Jones, who was named as the respondent in the application filed on 14 June 1983, was the Permanent Head of the Department of Education, a Department of the Australian Public Service. An amended application was filed on 8 July 1983, the only substantial difference from that filed on 19 June 1983 being that Dr. Peter Wilenski is named as respondent in lieu of Mr. Jones. This amendment reflected the fact that since the decision sought to be reviewed was made Mr. Jones had ceased to be the Permanent Head of the Department of Education and Dr. Wilenski had been appointed to that office. Section 17 of the Administrative Decisions (Judicial Review Act 1977 provides, inter alia, that where a person has, in the performance of the duties of an office, made a decision in respect of which an application may be made to the Court under that Act and the person no longer holds that office, the Act has effect as if the decision had been made by the person for the time being holding that office.

Sub-regulations (1) and (2) of regulation 116 of the Public Service Regulations provide -

"(1) Where, for any reason it is necessary so to do, the Chief Officer may, by instrument in writing, direct an officer occupying an office in the Department to perform temporarily the whole, or such part as is specified, of the duties of another office in the Department, other than an office in the First Division.

"(2) If, in the selection of an officer to whom a direction under the last preceding sub-regulation is to be given, it is necessary to select an officer occupying an office in the Department of a classification lower than the office in relation to the duties of which the direction is to be given, the Chief Officer shall make the selection of an officer from officers who occupy offices of lower classification by selecting the officer who is, in the Chief Officer's opinion -

(a) in the case of a direction to be made for a period not exceeding one month and in the case of a direction to be made in relation to an office specified in sub-regulation (1) of regulation 109G of these Regulations for a longer period - the senior efficient officer available; or

(b) in any other case - the more or the most efficient officer available"

Sub-regulation 109G has no relevance to these proceedings.

By virtue of sub-section 25(3) of the Public Service Act 1922 Mr. Jones, as the Permanent Head of the Department of Education, was entitled to exercise the powers conferred on a Chief Officer by regulation 116 of the Public Service Regulations.

At the material time Mr. G.D. Fowler held an office of Clerk, Class 11, Mr. Roy Quill held an office of Education Officer, Class 4 and the applicant held an office of Clerk, Class 8 all within the Department of Education. For a period of five days from 20 to 24 September 1982 inclusive Mr. Fowler was overseas on duty. Mr. Quill was directed by Mr. Jones pursuant to regulation 116 of the Public Service Regulations to perform the duties of the office held by Mr. Fowler during those five days.

By memorandum dated 23 September 1982 addressed to the Assistant Secretary, Departmental Services Branch, Department of Education the applicant requested, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, "a written statement of reasons as to why I was not selected instead of Mr. Quill." An interim response was given by memorandum dated 29 October 1982.

On 2 November 1982 the applicant addressed a note to the Manager Personnel, Department of Education reading as follows -

"Request for Statement under Administrative Decisions (Judicial Review) Act 1977: Mr. B. Pinchback.

Thank you for your note of 29/10/82 in which you indicated you are pursuing my application.

You do realise, of course, that the Department is in breach of the Act at this point in time, and that I would be within my rights to take out a writ in the Supreme Court, as a result of the delay by the Department in response to my original application."

On 9 November 1982 the applicant consulted a solicitor concerning the request he had made for a statement under section 13 of the Act. He was advised to pursue his application under section 13. He was not told that the Act placed a time limit upon the making of an application for an order of review. The solicitor has filed an affidavit in these proceedings stating that he was not aware of such time limitation.

The statement under section 13 was subsequently furnished to the applicant. It is dated 1 December 1982 and is signed by Mr. Jones. The statement reads in part -

"It has been the practice for some time in this Department to consider only those officers who possess what is considered to be the necessary qualities and experience required to perform certain duties when the question of higher duties and temporary transfer arises. In this case the qualities considered essential to perform the duties of the Clerk Class 11 were:

. Management skills of high order . Specialist educational qualifications and experience.

"It has been my opinion for some time that these qualities have been found mostly in the occupants of the Education Officer Class 4 positions and it has been my practice to draw the temporary occupants from these positions.

"With regard to your summary of claims, I wish to advise you that I do not dispute any of your assertions in relation to your present duties. I am of the opinion, however, that, in the interests of efficient management of the Department, seniority alone cannot be accepted as a deciding factor."

Assuming the statement was received by the applicant on 1 December 1982, any application for an order of review should have been filed on or before 29 December 1982.

The applicant again consulted his solicitor on 6 December 1982 and showed him a copy of the section 13 statement. The applicant suggested that an approach be made to the Public Service Board and his solicitor endorsed that suggestion. A memorandum dated 14 December 1982 was addressed by the applicant to the Secretary of the Public Service Board seeking the Board's advice whether the decision of the Department of Education was in accordance with the Public Service Regulations. The final paragraph of that memorandum reads -

"You will be aware that under the AD (JR) Act 1977 I have recourse to the Court to present my case more fully. However I am understandably reluctant to take this course of action unless pressed to do so, because the Service as a whole could receive some adverse publicity. Your consideration of this matter would therefore be greatly appreciated."

The Secretary of the Public Service Board replied by letter dated 15 March 1983. The letter concluded -

"The manner in which officers are selected for temporary transfer is one for each Chief Officer to determine provided that the requirements of the Public Service Act in relation to which officer is selected are met. On this basis, this Office would not question the practices adopted by your Department in the selection for short-term temporary performance in the particular position."

By letter dated 16 March 1983 the applicant informed his solicitor that he wished to make an application to this Court. A brief was prepared and sent to counsel on 4 May 1983. Advice dated 25 May 1983 was received from counsel and was read by the solicitor on 2 June 1983. The advice included a reference to the limitation period and the necessity to make an application for leave to apply out of time. The application, as mentioned above, was filed on 14 June 1983, that is almost six months after the expiration of the prescribed period.

The applicant was cross-examined on the affidavit sworn by him and filed in the proceedings. He was aware at the time of writing the memorandum dated 23 September 1982 to which I have referred that the Administrative Decisions (Judicial Review) Act 1977 enabled administrative decisions to be reviewed by this Court. He had had access to a copy of the Act and had read parts of it on at least two occasions though he denied having read section 11. He had read section 13 and was aware that it enabled a statement of reasons for a decision to be obtained and that it placed a time constraint upon a decision maker within which to furnish such a statement. He claimed that he was not aware that the Act placed a time limit on making an application for an order of review. He said on more than one occasion during cross-examination that the first he had heard about a time limitation was when counsel advised him of it on the morning of the hearing, 14 September 1983. This statement is inconsistent with the statement contained in his affidavit sworn 7 June 1983 that -

"I have now been informed by my solicitors that counsel has advised that I have reasonable prospects of success in an application but I need to apply for an extension of time within which to make application for review."

The direction sought to be reviewed, as I have said, relates to the temporary performance of the duties of a position of Clerk, Class 11, for the period of five days from 20 to 24 September 1982 inclusive. Even if Mr. Pinchback can establish that that direction should be set aside under section 5 of the Administrative Decisions (Judicial Review) Act 1977, he can obtain no substantive relief. No order can be made that he perform the duties of that position during the relevant period or that he receive a higher duties allowance as if he had performed those duties during that period. At best a decision to set aside the direction given by Mr. Jones could give guidance in respect of future decisions, assuming that the reasons given for such decision have relevance in such future cases.

The direction given by Mr. Jones is attacked on the ground that he did not apply the criterion prescribed by paragraph 116(2)(a) of the Public Service Regulations namely that the person chosen be the senior efficient officer available. It is asserted that Mr. Jones had regard to relative efficiency as between officers, a factor only relevant to the giving of a direction under paragraph 116(2)(b). It was also submitted that Mr. Jones erred in having regard to the meaning of efficiency in sub-section 50(4) of the Public Service Act 1922, that meaning being expressly limited to the word "efficiency" where appearing in section 50 itself.

I do not propose to discuss the merits of the application for review except to say that the statement furnished to the applicant pursuant to section 13 of the Act does not on its face show that the applicant has a strongly arguable case. Added to this is the circumstance that Mr. Jones has ceased to have the powers of a Chief Officer within the Department of Education.

The applicant, having received the statement pursuant to section 13 of the Act on 1 December 1982 chose not to commence proceedings for an order of review but instead chose to pursue an avenue of redress through the Public Service Board. It was not until the Board indicated that it was not prepared to intervene that the applicant decided to apply to the Court but even after he gave instructions to his solicitor there was a substantial period of delay before the application was filed on 14 June 1983.

The burden of showing why, in all the circumstances, an extension of time should be granted remains upon the applicant. He has not demonstrated, in my opinion, that this is a case in which an extension of time should be granted. I, therefore, dismiss the application.