Roderick, David James v Telstra Corp Ltd

[1997] FCA 1449

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE  - extension of time - applicant seeking to review respondent’s decision under the Administrative Decisions (Judicial Review) Act 1977 - application out of time by nearly four years - whether discretion to extend time should be exercised - consideration of prospects of success if able to pursue application - consideration of prejudice - application refused.

Administrative Decisions (Judicial Review) Act 1977 ss 5, 11

Ulowski v Miller (1968) SASR 277 considered and applied
Barrett v Minister for Immigration, Local Government and Ethnic Affairs
(1989) 18 ALD 129 applied

DAVID JAMES RODERICK v TELSTRA CORPORATION LIMITED, P  NEWMAN,
J  DUNNING AND F  W  HILL
SG 80 of 1997

MANSFIELD J
ADELAIDE
16 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 80  of   1997

BETWEEN:

DAVID JAMES RODERICK
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
FIRST RESPONDENT

P  NEWMAN
J  DUNNING
AND
F W HILL
SECOND RESPONDENTS

JUDGE:

MANSFIELD J

DATE OF ORDER:

16 DECEMBER 1997

WHERE MADE:

ADELAIDE

ON THE APPLICANT’S NOTICE OF MOTION DATED 9 OCTOBER 1997 THE COURT ORDERS THAT:

1. Application for extension of time within which to bring the application dated 9 October 1997 for judicial review under the Administrative Decisions (Judicial Review) Act 1997 refused.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 80 of 1997

BETWEEN:

DAVID JAMES RODERICK
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
FIRST RESPONDENT

P  NEWMAN
J  DUNNING
AND
F W HILL
SECOND RESPONDENTS

JUDGE:	MANSFIELD J
DATE:	16 DECEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

This application for review under the Administrative Decisions (Judicial Review) Act 1977 (“the Act”) is against Telstra Corporation Ltd (“Telstra”) and the three persons who, in September 1993, comprised a Board of Review under the Telecommunications Act 1991 to conduct an internal review of the decision terminating the applicant’s employment with Telstra. It is accepted by Telstra that any order appropriately made in the proceedings under the Act should be against it. The proceedings against the second named respondents have not been served. It is unnecessary to refer to them further.

The application issued on 9 October 1997 seeks the following:

“1 (a)Application to review the decision of the respondents that the applicant’s employment be annulled and his services terminated which said decision was made on 21st February 1991 and 1st September 1993.

(b)     Application to review the decision relating to the Conduct of the respondents from the month of May 1990 until the month of February 1991 and 1st September 1993 to review the decision as to the applicant’s conduct in relation to the terms and conditions of employment of the applicant and the criteria to be used in assessing such employment.”

It is accepted by the applicant, and correctly so in light of the history of events set out below, that this application for review should have been instituted within twenty eight days after the date of the decisions referred to: see ss 11(1)(c) and (3)(a) of the Act. The decisions in question each set out the findings on material questions of fact, refer to the evidence or other material upon which those findings were based and give reasons for the decision. The decisions were furnished to the applicant in that form on or about the day of them.

Consequently, this application is well out of time. By notice of motion also dated 9 October 1997, the applicant seeks an order extending the time within which to bring the application. It is accepted by Telstra that s 11(1)(c) does enable the Court to extend the time to seek review of those decisions under the Act. Telstra however opposes the granting of the extension of time sought. It is that motion which is now before the Court.

The relief sought in the application, in summary, is the setting aside of the decision of Telstra annulling the applicant’s probationary employment and terminating his employment effective from 22 February 1991.  It is plain from the application, and from the course of submissions, that the applicant seeks to have declared that he has continued employment with the respondent since 22 February 1991.  Very briefly, the application complains of the decisions given on 21 February 1991 and 1 September 1993 of internal boards of review of Telstra confirming Telstra’s decision to terminate the applicant’s employment, and the conduct giving rise to those decisions.

This is not the first proceeding in this Court in which those issues have been aired.  The applicant referred to the earlier decisions in the course of his submissions in support of his application for an extension of time.  It is convenient to refer to them, as well as the other material read on the motion, to describe in more detail that history of events, to identify the decisions sought to be reviewed and the conduct which is complained of, to ascertain what earlier decisions of the Court have resolved, and to isolate the matters relevant to determination of the notice of motion.

The Australian Telecommunications Commission was established by the Telecommunications Act 1975.  Its name was changed to Australian Telecommunications Corporation by the Telecommunications Amendment Act 1988 and continued under that name under the Australian Telecommunications Corporation Act 1989.  At the same time as that statutory status was restructured, the Telecommunications Act 1989 dealing more generally with telecommunications was enacted.  Those two pieces of legislation remained in force until 30 June 1991.  At that time they were repealed by the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1991, and the Telecommunications Act 1991 came into force.  It was this legislation which commenced the course of opening to competition the telecommunications industry within Australia.  By the Australian and Overseas Telecommunications Corporation Act 1991 the Australian Overseas Telecommunications Corporation was established which took over the functions of the Australian Telecommunications Corporation and the Overseas Telecommunications Corporation.  In 1993 the name of that corporation was changed to Telstra Corporation Ltd.  That legislation preserves continuity relating to the employment of persons now employed by Telstra.  I shall refer to Telstra generally, even where it would be more accurate to use a name applicable to it or to an earlier statutory corporation whose functions and responsibilities it inherited.

On 25 September 1989 the applicant was employed by Telstra as a probationary employee.  The detailed terms of that employment are set out in the reasons for decision of von Doussa J given on 11 July 1991 in Roderick v Australian Telecommunications Commission: (1991) 24 ALD 694 at 695-696. The relevant industrial award then in force was the Telecom General Conditions of Employment Award 1989. On 2 November 1990 Telstra determined to annul the applicant’s probationary employment and to terminate his employment from 19 November 1990. That decision was reviewable internally by a review board comprising three members, and set up pursuant to determinations issued under s 38 of the Telecommunications Act 1975 as amended by the Telecommunications Amendment Act 1988 (relevantly operative from 30 June 1989) and under s 85 of the Australian Telecommunications Corporation Act 1989.  That review (“the first review”) decided on 21 February 1991 to confirm the decision to annul the applicant’s probationary employment and to terminate his employment. The applicant was informed of that decision by letter of that date which satisfied the requirements of s 11(3)(a) of the Act, so that the prescribed period under s 11(1)(c) was twenty-eight days. Telstra regarded the applicant’s employment as having ceased on 22 February 1991, as notified by its letter to him of the preceding day.

The applicant applied to this Court under the Act to review that decision. The application at that time sought to review decisions of Telstra made on 21 June 1990, 2 November 1990 and 21 February 1991, and the conduct of Telstra between May 1990 and February 1991 which had the effect of bringing his employment with Telstra to an end on 22 February 1991. As can be seen, there is a correspondence with that application and the present application in respect of the decision on 21 February 1991 and in respect of the conduct between May 1990 and February 1991. Telstra objected to the competency of that application for review.

In Roderick v Australian Telecommunications Commission (above) von Doussa J ruled upon that objection to competency.  His Honour rejected the objection of Telstra to the competency of the application in so far as it related to the decision to terminate the applicant’s employment with it made on 21 February 1991.  His Honour then turned to the grounds of objection to competency relating, inter alia, to the alleged conduct of Telstra between May 1990 and February 1991 (at 706).  His Honour observed that the conduct alleged was not the operative cause of the aggrievement to the applicant.  He said:

“Even though the events surrounding these decisions [including the earlier decisions of 21 June 1990 and 3 November 1990], and the conduct of Telecom, constitute part of the background history that is likely to be agitated on the review of the decision made on 21 February 1991, I consider the objection to competency should be upheld in relation to the decisions alleged on 21 June 1990 and 2 November 1990, and to the alleged conduct.”

No appeal was brought from that decision.

Consequently, in so far as the present application seeks to review the conduct of Telstra between May 1990 and February 1991, that decision has ruled that such an application is not competent.  I do not think the applicant should therefore be permitted to revive that question.  He did not appeal.  He has offered no evidence to explain why he did not do so.  He has not suggested the relevant materials are different from those considered by von Doussa J.  The description of that conduct as “background history” to the decision of 21 February 1991 is clearly apt. Those considerations, in my view, outweigh any factors in favour of the granting of an extension of time to bring the application in respect of Telstra’s conduct between May 1990 and February 1991. Furthermore, that conclusion is further reinforced as that conduct relates to the decision of 21 February 1991. For reasons which appear below, I do not think I can or should grant an extension of time to review the decision on 21 February 1991 because the decision in any event has been set aside by this Court. If the decision itself may not now be further reviewed under the Act, there is no point in permitting review of the conduct giving rise to it. Those matters are in addition to the general discretionary considerations to which I refer below.

On 3 February 1992 von Doussa J dismissed that application for review:  Roderick v Australian Telecommunications Corporation(No 2) (1991) 27 ALD 192. There were two issues upon which his Honour was asked to rule. The first was whether Telstra, by letter of 16 February 1990 and the circumstances surrounding it, had confirmed the applicant’s appointment or employment so as to remove him from the status of a probationary employee. His Honour found that that letter had not done so. The second was whether the conduct of the first review had been in breach of the rules of natural justice in reaching the decision of 21 February 1991. His Honour also rejected that argument.

The applicant appealed from that decision to the Full Court.  On 4 December 1992, the Full Court (Hill J, Heerey and O’Loughlin JJ agreeing) allowed the appeal:  Roderick v Australian and Overseas Telecommunications Limited (1992) 111 ALR 355. The Full Court agreed with von Doussa J that the letter of 16 February 1990 did not constitute confirmation of the probationary appointment of the applicant. It held nevertheless that there had been a denial of natural justice in the procedures adopted by the first review tribunal. The formal order of the Full Court is a matter upon which the applicant in this application placed considerable weight. It is in the following terms:

“(1)The appeal be allowed and the order made by von Doussa J be set aside.

(2)       The decision of the review tribunal be set aside.

(3)The matter be remitted to a differently constituted review tribunal to be determined in accordance with law.

(4)The respondents to pay the costs of the proceedings before von Doussa J.

(5)       There be no order as to the costs of the appeal.”

It was apparent in the course of submissions before me (although not from the application itself) that the applicant somehow, by this application, seeks to have reventilated the question of whether his probationary appointment was confirmed by the letter of 16 February 1990.  In my view, that issue has been decided by the Full Court.  That decision was not the subject of a further appeal.  I do not have the power to alter that decision.  Even if I did, the decision of the Full Court would overwhelmingly tilt the scales against now extending the time to enable the applicant to revisit the very question which the Full Court in that decision has determined adversely to him.

As the decision of 21 February 1991 was set aside by the Full Court, that decision therefore no longer has legal significance in relation to the applicant’s employment status.  He succeeded in his application to have it reviewed and set aside.  Accordingly, again I do not think I have the power to further review that decision, and consequently it would not be appropriate to extend the time to enable an application to be made to do so.  Furthermore, even if the power now existed to review that decision, I would not extend the time to permit that because the Full Court has already reviewed it.  No additional or different material in relation to it has been identified.  It would be a pointless process.  Those considerations are distinct from the general considerations relevant to the exercise of my discretion on the motion which are discussed below.

In accordance with the decision of the Full Court, Telstra constituted a second review board.  It conducted a further review of Telstra’s decision (“the second review”). The decision on the second review was given on 1 September 1993. The applicant was informed by letter of that date of that decision. That letter satisfied the requirements of s 11(3)(a) of the Act. Accordingly the prescribed period under s 11(1)(c) of the Act was twenty eight days. That decision concluded with a unanimous recommendation that the decision of Telstra to annul the applicant’s probationary appointment and to terminate his employment as a radio lineman (and later as a communications officer, grade 2), and that the applicant’s review be disallowed. Telstra accepted that recommendation. On 28 September 1993 the applicant was formally notified by Telstra that that recommendation was accepted by Telstra, so that his employment with Telstra was therefore “deemed to have terminated”.

No application under the Act to review the decision of 1 September 1993 was made until this application. That is why it is out of time, and why it is necessary for the applicant to pursue the present motion. Before referring to the merits of the motion, there is one additional proceeding before the Court which should be noted.

In April 1997 the applicant lodged in this Court in matter SG 10 of 1992 (the matter in which the Full Court decision had been made) a notice of motion for “further consequential orders” arising out of the Full Court’s decision.  It was supported by an affidavit of the applicant of 27 April 1997, also before me, which does not depose to facts but seeks further consideration of various matters said to arise from the Full Court’s decision of 4 December 1992.  On 6 May 1997, von Doussa J, after providing the applicant with the opportunity to make submissions on the question, directed the Registrar under O 46 r 7A of the Federal Court Rules to refuse to accept that notice of motion.  His Honour published reasons for that direction on 6 May 1997 (unreported).  It was clear to his Honour that the applicant wanted to ventilate before the Court, whether constituted of a single Judge or the Full Court, the question of the validity of his termination.  The relief sought was similar to the relief sought in this application.  His Honour considered he had no jurisdiction in that proceeding to entertain the notice of motion.  His Honour further observed that, whichever of the earlier proceedings was used as a vehicle to pursue the matters the subject of the proposed notice of motion, there would be no jurisdiction to entertain it.

After referring at some length to the history, his Honour said (at 9):

“As the history recited above shows, in action number SG 10 of 1992 the matter was remitted by the Full Court to a differently constituted Review Tribunal which has heard and determined the review of the decision to terminate Mr Roderick’s employment.  The Review Tribunal is the tribunal with statutory jurisdiction to review and finally determine questions of fact.  Provided that the Review Tribunal conducted its procedures according to law, the findings of fact made by it are conclusive.  Mr Roderick aired his grievances about the merits before that Tribunal, and they have decided against him.”

His Honour then noted that no proceedings under the Act seeking judicial review of the decision made on the second review had been brought.

For the reasons already given, I will mainly focus my consideration on the motion in so far as it seeks review of the decision of 1 September 1993. There was no separate submission developed in relation to the conduct of Telstra on 1 September 1993, or earlier, except as it was relevant to the decision itself. If the motion for an extension of time to bring this application is unsuccessful in respect of the decision of 1 September 1993, in my view the same considerations will lead to its refusal in respect of the conduct of Telstra of the same date. The applicant relies upon his three affidavits, the earlier judgments referred to and a claim for worker’s compensation against Telstra, and certain additional material to which I shall separately refer. I have carefully considered the material in the applicant’s three affidavits. They largely contain assertions or contentions or conclusions on his present complaints, rather than primary factual material. The applicant asserts that he has been unsuccessful in his attempts to procure legal aid. Details of his applications for legal aid are not revealed. He asserts that Telstra has failed to honour the order of the Full Court of 4 December 1992 and has failed to apply the rules of natural justice. No details of that assertion are contained within the affidavits; the assertions are reflected simply in the use of words which appear in s 5(1)(a), (b), (e) and (h) of the Act. No facts are set out upon which it would be possible to assess whether all or any of those assertions might be made out. It appeared from answers to my questions of the applicant in the course of submissions that his principal attack upon the decision on the second review was, in his view, that the preponderance of evidence strongly favoured findings different from those which were made upon the second review.

The decision on the second review records the following:

“During the Review Board’s hearing of this appeal 29 “Information Providers” were interviewed at length in the presence of Mr Roderick who was given the opportunity to discuss and argue his case fully with each and every one of the information providers and to make submissions and table further documents that he considered appropriate and relevant.”

The applicant did not point to any material to contradict that.  In answer to me, in submissions, when I was seeking to ascertain whether there may be some foundation for his complaint of a lack of procedural fairness in the conduct of the second review, the applicant acknowledged each of the matters so described.  Other than his contention that the preponderance of evidence justified a different conclusion on the second review, no other matter relevant to whether the applicant was accorded procedural fairness was identified by him.

The applicant also relied upon an affidavit of John Kavooris (“Mr Kavooris”), Union Organiser, sworn in matter SG 21 of 1991 in this Court on 19 October 1992.  The respondent acknowledged that Mr Kavooris still holds the views expressed in that affidavit.  Mr Kavooris deposes to having examined the applicant’s “appointment advice” dated 16 February 1990, and says that it represents permanency to the receiver of such advice.  Thus, it seeks to argue a matter which the Full Court has already decided adversely to the applicant.  In my view, it does not usefully advance the applicant’s claim for an extension of time.

The applicant further adduced an affidavit from Luke Donald Irlam (“Mr Irlam”) sworn on 24 September 1992 also in that proceeding.  It appears from other evidence tendered by the respondent that Mr Irlam is now deceased.  Mr Irlam deposes to the applicant’s good attitude to work, and that officers of Telstra had been instructed to give the applicant “a hard time” in relation to his work performance.  It is Mr Irlam’s belief that senior officers of Telstra wanted to dismiss him under any pretext.  The affidavit does not depose to facts upon which that belief is asserted other than as noted above.  Again, I do not think that affidavit usefully advances the applicant’s claim for an extension of time.  In particular, the material before me shows that Mr Irlam gave evidence at the second review.  The material does not show what that evidence was.  He did not provide a statement to Telstra prior to that review.  There is no reason to think that Mr Irlam’s evidence at the second review was different from that contained within his affidavit.  Nor is there any reason to think that, at the second review, his evidence was not given weight for any improper reason.

Under the heading “Conspiracy Claim” the decision of the second review addresses that particular allegation in detail.  It concluded:

“The Review Board’s initial reaction regarding Mr Roderick’s conspiracy claim that it was, on the surface, not without significant substance proved on further investigation to be without foundation.  While some similarities in some on-the-job actions by different supervisors and employees were found as well as some similarities in some written and oral assessments, reports and statements made by various information providers such similarities are, in the opinion of the Review Board, a far cry from organized conspiracy.  The Review Board could not link the similarities together to prove an organized conspiracy against Mr Roderick.

The Review Board after careful consideration of the evidence before it, rejected Mr Roderick’s organized conspiracy claim believing it to be only Mr Roderick’s perception of the situation.”

and in its summary and conclusions, on this topic it said:

“On the evidence presented, the Review Board concluded that Mr Roderick’s claim of an organised conspiracy against him, the object of this conspiracy being to deprive him of his right to work, was not sustained and was therefore rejected unanimously by the Review Board.”

I do not find, in the light of that material, that Mr Irlam’s affidavit provides any sound basis for the applicant having any real prospect of establishing a failure to accord procedural fairness to him in the conduct of the second review.

The applicant further tendered a bundle of material comprising a report dated 27 November 1990 from K W Alison, Superintendent Engineer, Telstra, to the first review, with a series of reports, letters and minutes.  He referred to certain audio cassette recordings.  It was material put forward by Telstra to the first review.  It was suggested that that material should not have been given the weight which it was given by the first review.  There is no evidence suggesting that document and its enclosures was given to the second review.  It appears from other evidence adduced by Telstra that Telstra adduced at the second review similar material under the hand of Ian Jeffrey Hitch (“Mr Hitch”), Regional General Manager, Telstra under cover of a letter of 17 March 1993.  The applicant’s real point is merely that there was evidence, and in his view strong evidence, inconsistent with the ultimate findings of the second review despite that material.

The applicant contended that the material referred to demonstrated that he had a strong case for review of the decision of 1 September 1993 under s 5(1)(a) of the Act. He did not, on the motion, separately contend that he had prospects of successfully reviewing that decision under the other provisions of s 5 of the Act which the wording of the application and the three affidavits of the respondent appear to refer to. Nothing was suggested to indicate that those other provisions of the Act: s 5(1)(b), (e) and (h) had any additional or different foundation than the weight of the evidence on the second review, as it is asserted by the applicant.

The general content of the rules of natural justice, as discussed for example in Kioa v West (1985) 159 CLR 550 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, is clear. In the light of those authorities, there is, in my view, no material upon which it could be concluded that the applicant has any real prospect of showing that he was not accorded natural justice in the conduct of the second review. Nor, in my view, is there material from which it could be concluded that the applicant has any real prospect of showing an error of law in relation to the conclusions of fact on the second review. As Mason CJ pointed out in Bond (above, at 357) there is a sharp distinction between errors of fact and errors of law for the purposes of the Act. The applicant has not sought to show that there was no evidence before the second review upon which its conclusions of fact could have been made, nor indeed did he assert that there was no such evidence. In Bond (above) Mason CJ (with whom Brennan J agreed), at 355-360 explains the limits beyond which judicial review under the Act of findings of fact may not move. Toohey and Gaudron JJ in their separate judgment also, at 387, agreed with those observations of Mason CJ. Nothing has been shown, or put, which brings the applicant’s complaints in respect of the second decision within those boundaries.

Accordingly, I am not satisfied that he has shown any prospect that he will be able to establish a foundation for successfully reviewing the decision of 1 September 1993 if the extension of time is granted to enable him to pursue his application.

The balance of the applicant’s material on the motion relates to other discretionary matters.

That material included an Information for an indictable offence laid on the information of an administrative officer of Telstra on 21 February 1991, alleging that on or about 6 September 1989 the applicant imposed upon Telstra by an untrue representation with a view to obtaining a benefit, contrary to s 29B of the Crimes Act 1914, namely that he had not previously made a claim for worker’s compensation.  The evidence does not show the outcome of that information, but in the course of submissions the applicant indicated that it had not been proceeded with.  I do not think those matters are of significance on the present application.  It is not possible on the material before me to draw any conclusion adverse to Telstra by reason of what has been adduced in evidence.

The remaining material of the applicant related, or was said to relate, to his reasons for his delay in bringing this application.  It was argued to be due to a combination of lack of knowledge, and his medical condition.  It was also said to be relevant that the applicant had continuously sought review of the decision on the second review since 1 September 1993.  It is convenient first simply to note that evidence.

That material included a letter dated 4 February 1993 from Telstra acknowledging that the applicant had presented himself for work following the Full Court decision on 4 December 1992.  Telstra had earlier, by letter of 29 January 1993, told him that it would not be in a position to consider his request to resume work until after the decision on the second review.  Following the second review, the applicant by letter dated 14 February 1994 wrote to the Executive Manager, Promotions Appeal Board of Telstra.  It is in the following terms:

“I wish to appeal against the decision of the Review Board’s Recommendation as a result of a Federal Court order to conduct a further review, and apply the rules of natural justice this review was convened on the 5th July 1993.

In making this request I consider a further denial of natural justice has been committed by the board members, in the evidence of tapes taken at this review.

I request a further hearing as soon as possible to prove my statement and views about review tribunals.”

Telstra responded under the Promotions Appeal Board letterhead by letter of 7 March 1994 that it had neither the authority nor responsibility to accept and/or conduct an appeal.  It simply declined to do so.

There the question of any application for judicial review of the decision on the second review lay, until the misconceived proposed motion upon which von Doussa J gave his direction on 6 May 1997.

There were three medical certificates of a general practitioner adduced by the applicant.  They certified him unfit for work due to a heart condition, for which he apparently underwent a coronary by-pass operation, during the period 13 August 1996 to 22 February 1997.

The applicant referred also to a claim for compensation made by him, which he argued included adjudication upon the grounds for his termination.  Evidence adduced by Telstra indicates the nature of that claim and its history.  The applicant made a claim for worker’s compensation for a stress condition or anxiety disorder.  Telstra rejected it on 4 September 1992.  That decision was affirmed on 28 May 1993 after internal review.  On 1 September 1993, the applicant appealed against that decision to the Administrative Appeals Tribunal (“the AAT”). On 29 April 1994, in the course of the hearing before the AAT, and some eight months after the decision on the second review, the applicant asserted to that tribunal as part of his claim that he was seeking re-employment, not compensation, as he had been wrongfully dismissed. It is clear from the transcript that Telstra through its counsel then made it plain that the applicant’s appeal to the AAT was not able to be used to seek his re-employment or any order that he had not been dismissed. Comments of the AAT at that time also make that point to the applicant. In June 1994 the AAT rejected the appeal. In April 1995, some nine months later, the applicant applied to this Court to extend time to appeal from the decision of the Administrative Appeals Tribunal. That application came on for hearing before Branson J. In the course of it, the applicant again asserted that his application included, or was principally directed towards, seeking his re-employment or orders that he had been wrongfully dismissed. Branson J also made it plain to the applicant that, in that application, there was no issue as to the status of his employment. Her Honour said that, although his employment and events concerning it may have provided background information to the compensation claim, the applicant could not raise in that application issues which could lead to any determination as to his employment status. Her Honour granted an extension of time to seek review of the AAT decision. By direction of the Chief Justice pursuant to s 44(3) of the Administrative Appeals Tribunal Act 1975, that application was heard by the Full Court (Lee J, O’Loughlin and Mansfield JJ) on 15 November 1996.  That Court allowed the appeal in part (unreported, 15 November 1996).  The tribunal appeared to have erred in respect of a period of compensation in issue between 22 February 1992 and 17 March 1992.  In the course of delivering the reasons, the Court said (at 4):

“The appellant in his submissions on this appeal, sought to further ventilate the matters relating to his employment status, including the calling of further evidence directed to establishing that his employment by the respondent was no longer probationary by November 1990, and that the grounds given by the respondent for the termination of his employment were invalid.  His purpose, as he candidly acknowledged, was not to have the decision of the Tribunal relating to his compensation claim altered beyond correcting the error conceded by the respondent, but to have this Court on this appeal rehear and redetermine matters relating to his employment status with the respondent.  The question of whether he was entitled to do so was raised at the commencement of the hearing.  The brief description of the nature of this appeal, and of the history of the procedures followed by him in separate proceedings relating to his employment status and to the grounds of its termination by the respondent, are sufficient to indicate that this Court has no power on the hearing of this appeal to entertain such matters.”

It is clear, and I find, that it has been made apparent to the applicant throughout those various hearings and as early as April 1994, that his claim for compensation could not provide a vehicle for him to appeal from or to seek to reverse the decision of the second review given on 1 September 1993.

The Court has a discretion to extend time for the bringing of an application for judicial review under the Act. There is no set of rules which can, or should, dictate how that discretion should be exercised. It must be exercised judicially, but otherwise each case must depend upon its own particular facts. See generally Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517. No one factor will be conclusive, or indeed necessarily critical, to how the discretion should be exercised. In Ulowski v Miller (1968) SASR 277 at 280, Bray CJ said in relation to a discretion similar to that now under consideration:

“It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules.  It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.”

That list, of course, will not necessarily be comprehensive, nor necessarily in every case will each such factor require consideration.  The applicant did focus in his submissions on those matters, together with what he called the public interest in having a determination of his claim on the merits but with a factual outcome which would result in his employment status being restored and the alleged conspiracy of certain officers of Telstra exposed.

The delay in this matter is lengthy.  There are apparently periods of inactivity entirely unexplained.  There is a period between 1 September 1993 and the letter of 14 February 1994 unexplained.  Telstra’s response then gave no reason to think any appeal process was underway.  At least from 29 April 1994, the applicant was or should have been aware that his appeal to the AAT in respect of his worker’s compensation claim did not provide a vehicle to review the decision on the second review.  That matter was reinforced from time to time during those proceedings, and finally on 15 November 1996.  Even after the Full Court decision of 15 November 1996, a period of some months elapsed before the proposed motion was presented to the Court in matter SG 10 of 1997, but by reason of von Doussa J’s direction it was not issued.  A further period of five months then passed until this application.

The medical certificates adduced cover only a small part of that period.  It was moreover during the period to which those certificates relate that the applicant conducted the Full Court appeal with respect to his worker’s compensation claim.  The certificates do not say that the applicant was not capable of attending to such matters as this application during the whole of the period to which they relate, but assert unfitness for work.  The applicant must, of course, have been quite disabled for some of that period if he underwent operative treatment, but clearly he could attend to the Full Court appeal and so to such affairs for some of that period.  Even if they were to provide an explanation for inactivity during the whole of the period to which they relate, that is but a small part of the overall period.

The correspondence with politicians, as tendered, does not in my view give the applicant any reason to think that somehow he had properly sought judicial review of the decision on the second review, or otherwise had properly appealed from that decision.

Accordingly, in my view, the long delay is not fully explained satisfactorily by the applicant. That is not to say that, of itself, that is decisive. Ignorance of time limits, or other factors, may nevertheless dictate the exercise of the discretion in favour of granting an extension of time. The applicant’s affidavits do not assert that he was ignorant of the fact that some time limitations may have applied to judicial review of the decision on the second review, nor that he was unaware of the specific time limitation under s 11 of the Act. He asserted in argument ignorance of those specific time limits. Were the delay of some months only, it may have been appropriate to invite evidence on the topic. However, even accepting his ignorance of specific time limits, the delay is very lengthy and no adequate reason for the full period of the delay, or for a substantial part of it, has been given.

The length of the delay has, to my mind, the further significance prompted by the nature of the application for review.  In matters such as employment, it is desirable that the resolution of disputed issues be resolved promptly.  The applicant’s claim, if fully successful in the terms he seeks, will oblige Telstra to reinstate his employment and to pay him his salary entitlement for a period of the order of seven years.  He made it clear on submissions that, if he was ultimately successful, his objective was to receive those benefits.  Telstra did not seek to establish that, due to any matters relating to its operations, it could no longer employ him if ordered to do so.  However, in my view, an elapse of some seven years, of which in the order of four years is attributable to delay in determining to pursue the present claim, is significant having regard to the nature of the employer-employee relationship and the desirability of having issues relating to that relationship promptly resolved.  There is, of course, the additional factor that, in respect of the period of delay, the applicant if successful will assert an entitlement to recover from Telstra his earnings entitlement as if he had been continuously employed.  It was neither offered, nor submitted, that the Court could or should on the motion formulate some order by which the applicant waived that entitlement for all or any part of the period from a period of twenty eight days after 1 September 1993.

In forming my view as to the appropriate way to exercise my discretion I have also considered the impact upon the applicant of an order refusing his motion for an extension of time.  He will be unable to pursue his claim.  The decision on the second review will stand.  Obviously, that is a weighty matter.  It is weighty not first because it will mean that the applicant will be left as a person no longer employed by Telstra, but also with what I am sure is a great sense of injustice at the way he perceives he has been treated by Telstra in the annulment of his employment and in the review processes.  That is illustrated in part by his contentions during the hearing that, upon this application, this Court could and should rule that his employment with Telstra had been made permanent by the letter of 16 February 1990, that it could and should vary order (3) of the Full Court’s decision on 4 December 1992, and that it could and should order Telstra to pay the costs of the earlier proceedings culminating in the Full Court’s orders of 4 December 1992 notwithstanding orders (4) and (5) then made.  As I have said, it is plain that on this application the Court cannot do so, even if an extension of time is granted.

In that regard, in my view, it is permissible to have regard in a general way to the prospects of the applicant succeeding on his application in any event:  Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129, at 130-131. I do not of course suggest that it is appropriate to assess in any specific way the prospects of success in the application, but I have reached the view for the reasons given earlier that the applicant has not adduced material which shows that he has any real prospects of success on the application on the basis on which it is proposed to be pursued. I have put that matter into my considerations.

I have separately considered whether any conduct on the part of Telstra might have induced the applicant not to pursue this application in a more timely manner.  I think the reverse is true.  No other material concerning Telstra’s conduct tends to provide a basis for granting the applicant the extension of time he seeks.

I have not separately referred to the evidence adduced on the motion by Telstra.  It has been reflected in much of the above discussion.  In one respect, it is desirable to separately refer to it.  The affidavit of Mr Hitch, who in 1992 was the person within Telstra directly involved in the preparation and presentation of material to the second review, is directed to the question of possible prejudice to Telstra by the delay.  At the second review, twenty eight persons gave evidence, but now only eleven remain in Telstra’s employment  A greater number were employed by Telstra at the time of the second review.  Of the other seventeen, Mr Irlam is deceased, and one was called by the applicant.  Telstra cannot oblige the remaining fifteen persons to give evidence to a further review, and it does not know whether either the twelve whose addresses it has recorded or the three for whom it has post office box addresses only are still contactable in any event.  Any element of prejudice by reason of a relevant witness either being uncontactable or uncooperative is, in my view, a slight but not insignificant one on that material.  Telstra could have made inquiries which clarified the position.  I am not critical of it for not having done so.  In the absence of such inquiries and therefore being obliged to speculate as to their outcome leaves me with the view that I should ascribe only

slight weight to those possible sources of prejudice.  Any such prejudice is, however, compounded to some degree by the passage of time:  memory fades, detail becomes more elusive, the spontaneous and graphic detail sometimes of great significance in assessing complex factual matters is less likely to emerge.  Not all those persons gave statements to Telstra at the time, but on the other hand I assume that transcripts of the second review were taken or its proceedings recorded.  Consequently, I am not disposed to place much weight upon possible prejudice to Telstra in those respects by reason of the delay.  I have given it some weight.

Despite that, I have come to the firm view that it is not appropriate to grant the applicant the extension of time which he seeks in respect of the decision on the second review.  I have discussed above the various matters to which I have had regard, and the way I have assessed them.  Ultimately, for the purpose of doing justice between the parties, the scales fall against acceding to the motion.  It is, for the same reasons, my view that no extension of time should be granted for the application to judicially review the conduct of Telstra on 1 September 1993.

I have separately considered the motion in respect of the application for review of the first review decision of 21 February 1991 and the conduct of Telstra leading up to it.  In addition to the reasons expressed earlier in these reasons, if the matter were purely for my discretion, I would similarly refuse the motion.  I would do so for much the same reasons as those given for refusing the motion in respect of the decision on the second review.

Accordingly, on the notice of motion, I refuse to order that the time for the making of the application dated 9 October 1997 be extended.  It follows that that application is substantially out of time.  I will leave it to Telstra to pursue any orders it seeks in the circumstances in relation to the application itself, although I expect - in the absence of any further material - it might now be appropriate to dismiss the application.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:
Dated:                 16 December 1997

Applicant appears in person
Counsel for the First Respondent:	Mr M Roder
Solicitors for the First Respondent:	Norman Waterhouse
Date of Hearing:	8 December 1997
Date of Decision:	16 December 1997