Rose v Pezzullo: Secretary of the Department of Immigration

[2017] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSE v PEZZULLO: SECRETARY OF THE DEPARTMENT OF IMMIGRATION & ANOR [2017] FCCA 213

Catchwords:
ADMINISTRATIVE LAW – Application for an extension of time – no adequate explanation for the delay – consideration of the merits of the application – whether the applicant breached s.13(2) and s.13(5) of the code of conduct – no arguable case of relevant legal error within s.5 to warrant an extension of time – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977, s.5
Public Service Act 1999 (Cth), s.13

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Skorich v Merit Protection & Review Agency [1997] FCA 266
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: JAMES BERNARD ROSE

First Respondent: MICHAEL PEZZULLO: SECRETARY OF THE DEPARTMENT OF IMMIGRATION

Second Respondent: MERIT PROTECTION COMMISSIONER

File Number: SYG 3721 of 2016

Judgment of: Judge Street

Hearing date: 9 February 2017

Date of Last Submission: 9 February 2017

Delivered at: Sydney

Delivered on: 9 February 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr D Robertson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application in a case is dismissed.

2. The originating application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3721 of 2016

JAMES BERNARD ROSE

Applicant

And

MICHAEL PEZZULLO: SECRETARY OF THE DEPARTMENT OF IMMIGRATION

First Respondent

MERIT PROTECTION COMMISSIONER

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for an extension of time for the bringing of an application under the Administrative Decisions (Judicial Review) Act1977 (Cth) (“the ADJR Act” in respect of four decisions made by different officers of the first respondent concerning the applicant.

2. The proceedings were commenced on 23 December 2016 and seek relief setting aside a decision of Mr Muir dated 13 May 2015 in respect to which the delay in bringing the proceedings is 15 and a half months, a decision of Mr Conlon dated 20 October 2015 in respect of which the delay is approximately 13 months, a decision of the Merit Protection Commissioner made on 5 April 2016 in respect of which the delay is approximately seven and a half months and a decision of Mr Haywood dated 19 October 2016 in respect of which the delay is approximately one month.

3. The applicant filed an application in a case on 20 January 2017 seeking an extension of time in respect of the four decisions, supported by an affidavit. The matter came before the Court on 2 February 2017. On that occasion, the applicant was given further time to put on any further material on which the applicant wished to rely in support of the application for an extension of time. The applicant did put on an affidavit dated 6 February 2017 which relevantly did not develop or advance any adequate explanation for the failure to bring the proceedings within the 28 day period. Nothing in the other affidavit evidence adequately explained the failure by the applicant to bring the proceedings within the 28 day period.

4. The applicant did seek to draw attention to a letter dated 17 June 2016 in relation to the decision made on 5 April 2016. That letter was however, outside the 28 day period in respect of which the applicant was notified in respect of the decision dated 5 April 2016 that he had to bring any challenge under the ADJR Act within 28 days.

5. The principles relating to an application for an extension of time have been identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] to [349] as follows:-

   a. It is a pre-condition to the exercise of discretion in favour of the applicant to grant an extension of time that the applicant show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

   b. Action taken by the applicant, other than by making an application for review under the ADJR Act, is relevant to the consideration whether an acceptable application for delay has been furnished.

   c. Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. However, the mere absence of prejudice is not enough to justify the grant of an extension.

   d. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

   e. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion.

6. I also take into account what was said by learned Finn J in Skorich v Merit Protection & Review Agency [1997] FCA 266 relevantly as follows:-

   The expeditious implementation of the Public Service Act 1922 disciplinary regime: cf Public Service Act (Cth) ss 61(2), s 62(1), s 62(10) and reg 141; and the need for its orderly administration across the Australian Public Service: cf Lucic v Nolan (1982) 45 ALR 411 at 416; are factors of no little public interest significance of which account needs to be taken in a case such as this. They again tell against the grant of an extension of time - the more so given the applicant's appreciation of the time limit involved.

7. At the commencement of the hearing, the Court explained to the applicant that this was an application for an extension of time in respect of the four decisions and that the Court would identify the evidence, then hear submissions from the applicant, then hear submissions from Counsel for the first respondent and then hear submissions from the applicant in reply. 

8. From the bar table, the applicant proffered an explanation for the delay in terms of inability to access work computers and other pressures. The explanation advanced by the applicant is not an adequate explanation in relation to the delay in respect of the four decisions. More importantly though, the Court must also consider the merits of the application under the ADJR Act. In this regard, the Court is considering whether there is an arguable case on the merits of a breach of s.5 of the ADJR Act by the respective decision-makers. Mr Rose maintained that he did not breach s.13(2) and s.13(5) of the Public Service Act 1999 (Cth).

9. Mr Rose confirmed that although there was a sanction of reprimand imposed, it was not the sanction that was the focus of his challenge and he did not allege that if there was a breach, that the sanction was itself the subject of error.

Consideration

1. The relevant conduct in question involves an occasion on 2 November 2014 where Mr Rose allowed two passengers to clear and render safe their own firearms at a time that Mr Rose did not hold the Custodial Safe Handling certification. Mr Rose had previously held that qualification and the Court accepts that Mr Rose has an extensive history through the armed services as well as his career with the first respondent in the handling and safety of firearms.

2. Mr Rose’s contention was that the decision made by Mr Muir was one that imposed upon him a requirement that was not the subject of any direction and was not in breach by him of s.13(2) and s.13(5) of the Public Service Act 1999 (Cth). On the occasion in question, Mr Rose having identified that the owners of the weapons were registered owners and had appropriate qualifications and experience, permitted those persons in a safe room to carry out a safety clearance in his presence. At that time, Mr Rose did not personally handle the guns.

3. Prior to this occurring, there were in Mr Rose’s mind exigencies that warranted him making a judgment call to permit the passengers to safety check their own firearms without the presence of a qualified officer. Those exigencies related to circumstances concerning the passengers having other connecting flights and commitments and having a busy work environment. 

4. In considering whether there was any evidence in respect of which the adverse findings were open, for the purpose of assessing the merits of the application, it is of considerable significance that Mr Rose acknowledges that prior to carrying out this safety check procedure he endeavoured to contact and obtain a qualified officer. Mr Rose acknowledges that that was the practice that had been followed in the past. Mr Rose’s contention was that that was not in fact what was required though by the letter of the directions. Materially, the relevant directions referred to as the Custodial Firearms I&G’s procedures sets out as follows:-

   “All firearms are hazardous and have the potential to inflict life threatening or fatal injuries. Customs and Border Protection officers must never handle firearms unless they hold the appropriate qualification. A qualified officer is an employee who has successfully completed an approved Customs and Border Protection firearms training course and who has been deemed competent in the safe handling of firearms by an authorised Regional Firearms Instructor (RFI), a certified National Training Provider or an authorised officer under Section 189A of the Customs Act 1901. In the custodial context this means all officers must have completed the Custodial Firearms Safety and Handling Course and be currently certified in order to handle firearms".

5. Mr Rose contended that the reference to “officers must never handle”, meant that as Mr Rose did not handle the weapons, there was no breach of the Public Service Code of Conduct. The firearms safety and handling requirements are of the utmost importance for all officers of the first respondent. Adherence to those safe practices is fundamental to the safety not only of travellers, but the officers themselves. The notion that the provision where it refers to “officers must never handle” permits an unqualified officer to get an unqualified third party to handle and carry out a safety check is not open on the proper construction of that provision. The reference to “handle” patently includes getting another unqualified person to handle the weapon. This is what Mr Rose did.

6. Mr Rose’s explanation that he did not personally carry out the safety check is not an adequate explanation or a basis upon which any arguable error under s.5 of the ADJR Act arises. I take into account and caution the principles identified in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. Mr Rose made reference to the proposition that the decision-maker Mr Muir, failed to apply the Evidence Act 1995 (Cth). The Evidence Act 1995 (Cth) did not apply to that administrative decision-making process and there is no arguable error under s.5 of the ADJR Act revealed by that proposition.

7. Mr Rose also submitted that Mr Muir had in essence become an expert himself in identifying a procedure that he said should be followed where he referred to the correct procedure being that Mr Rose should have waited for a firearms-trained officer and should have held the firearm under customs control until such trained firearms officer was available to clear the firearm for release to the traveller. That finding of the correct procedure is entirely consistent with the procedure that Mr Rose admitted that he did not adhere to because of the exigencies and his own judgment call as to the approach he should adopt in those exigencies.

8. The fact that Mr Rose made an endeavour to contact a qualified officer shows that he fully appreciated and understood what the proper practice was. The explanation advanced by Mr Rose that he personally did not touch the firearms does not identify any basis upon which it could be said that the adverse decisions the subject of the application for leave were not open. The correct procedure identified by Mr Muir was patently apparent in the language identified in the Custodial Firearms I&G’s requirements that Customs and Border Protection officers must never handle firearms unless they hold the appropriate qualifications. Mr Muir’s decision was open on the material before him and there is no substance in the allegation that there was an assertion of a role of expert by Mr Muir.

9. It is not acceptable and it was an obvious breach for Mr Rose to make a judgment call and to permit the holders of the weapons who are not qualified Customs and Border Protection officers to carry out the safety check. This was in effect the handling of the weapons contrary to the direction by Mr Rose. In mitigation in relation to the conduct, I fully accept that Mr Rose is an extremely experienced and on the material before this Court, an impressive reserve officer. Mr Rose appears also to be a person who has insight and comprehension as to the importance of firearm safety handling requirements.

10. It was no doubt due to the exigencies perceived by Mr Rose and his past experience that the sanction of reprimand was imposed. But for those exigencies and experience, breach of that safety requirement could as I have indicated, give rise to a sanction of dismissal. I do accept Mr Rose’s contention that he is a person of considerable expertise in relation to firearms. That makes it all the more important that he ensures that the systems in place for discipline in respect of breaches are adhered to and respected. Mr Rose’s background in the military is one in respect of which he obviously has a deep appreciation of the importance of discipline and the adherence to discipline process by those required to comply with procedures. It is of considerable importance and much to Mr Rose’s credit that he has acknowledged he would never do this again. It is also much to his credit that he has not challenged, and does not in this Court, the sanction if the breach was open. There was one further ground that Mr Rose raised which was suggestive of a vendetta or personal pursuit or bullying of him. There is no material whatsoever to support such an allegation and there is no arguable case that the decision of any of the decision-makers was an exercise of power in bad faith.

11. It is perfectly proper for the responsible authorities to pursue disciplinary sanctions under the disciplinary process in respect of breaches of firearm safety requirements. Mr Rose contended that he had apologised on the day to his immediate superior who had reprimanded him and directed him never to do it again which he said he would not.  Mr Rose is well alive to the fact that that it was not the exercise of the disciplinary regime that is in place and that the formal disciplinary regime was open to be pursued and should have and was properly on the material before this Court, properly pursued in the present case.

12. I have made these broader observations because it is apparent that Mr Rose is a person of considerable intelligence and ability and a person who should continue to have a successful career, including involving any handling of firearms. The insight that he has acknowledged before this Court is of importance in that regard.

13. The Court raised with Mr Rose a potential concern in relation to his tenacity in pursuing the issue of breach of the relevant sections. It is apparent from what was said by Mr Rose that he genuinely believed in the merit of his application. It is also apparent that the Court finds that he fully understands the importance of the safety procedures and requirements in relation to firearms. 

14. Considering the issue of prejudice, whilst it may be the case that the most recent decision is one arising out of the earlier decisions, any challenge to a decision under the ADJR Act should be made within the 28 day period. For the reasons identified by Finn J in Skorich v Merit Protection & Review Agency [1997] FCA 266, the disciplinary regime within the public service is of considerable importance in its timely and prompt enforcement. The prejudice advanced by the respondent was general.

15. If the Court had been satisfied that there was an arguable case of relevant legal error within s.5 of the ADJR Act, this is a case where the Court would have extended time given Mr Rose’s identification of the potential seriousness of such an adverse finding. Mr Rose’s genuine and sincerely held views that there was no breach and his explanation for the potential adverse impact on his career of the finding of a breach would in the interests of justice have warranted an extension of time in respect of the last decision if there had been an arguable case on the merits of relevant legal error.

16. For the reasons I have given, this is not a case in which there is any merit in the contention hat the decisions were the subject of error within s.5 of the ADJR Act. The respective decisions were lawful and open under the Public Service Act 1999 (Cth). The adverse decisions are not however, conduct that should impair the ongoing career of Mr Rose. For the reasons given, the Court was impressed by Mr Rose and is confident that he will adhere to appropriate safety practices in respect of firearms in the future.

Conclusion

1. Given that there is no legal merit in the application, for the reasons given, the Court refuses to extend time in respect of each of the four decisions.

2. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 February 2017