Ross, Michael John v Australia Postal Commission
[1982] FCA 268
•10 DECEMBER 1982
And: AUSTRALIAN POSTAL COMMISSION, W. LEWER, E. WILSON, G. KOSCHARSKIJ
No. G 96 of 1982
Administrative Law
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
Administrative Law - application for order of review by dismissed postman - notice of appeal against dismissal lodged outside prescribed period - whether prescribed period mandatory or directory - whether prescribed period able to be waived.Postal Services Act, 1975 s. 65
Administrative Decisions (Judicial Review) Act 1977, s. 5
Postal Services Regulations rr. 17, 18 and 19
SYDNEY
#DATE 10:12:1982
THE COURT ORDERS THAT:1. The application be dismissed.
2. The applicant pay the respondents' costs.
Michael John Ross ("the applicant") was employed as a postman by the Australian Postal Commission ("the Commission") from 1973 until December 1981 when he was dismissed by the Commission from its Service. He appealed against his dismissal to a Disciplinary Appeal Board established under the Postal Services Act 1975 ("the Act"). A Disciplinary Appeal Board was constituted to hear the appeal comprising the second, third and fourth respondents. I shall, for convenience, refer to those three respondents as 'the Board'. On 19 April 1982 the Board considered a preliminary question whether it had jurisdiction to hear and determine the appeal. The Board held that the applicant's notice of appeal was posted outside the period of fourteen days required by Regulation 18 (1) of the Postal Service Regulations ("the Regulations"), that the provision was mandatory, not directory, and that it had no jurisdiction in those circumstances to hear and determine the appeal. The Board then dismissed the appeal.
The applicant applies to this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review of the Board's decision. He relied on various grounds but essentially on the ground that the Board's decision involved an error of law (para. 5 (1) (f) of the Judicial Review Act).
Two questions were argued before this Court. The first question was whether the statement in sub-reg. 18 (1) that appeals shall be made by letter or telegram posted or delivered to the appropriate office not later than fourteen days after the date on which the appellant received notice of the decision from which he is appealing, is mandatory or directory. The second question was whether, on the assumption that the requirement in sub-reg. 18 (1) is mandatory, the Commission was able to waive the requirement,and, if it was, whether it did so. The applicant says that if either of these questions is answered in his favour the Board's decision should be set aside and a Disciplinary Appeal Board ordered to hear the appeal.
The facts may be briefly stated. The applicant was suspended from his position as a postman, grade 1, on 21 October 1981. On 31 December 1981 he received a letter dated 29 December 1981 from the Commission addressed to him in these terms:-
'Your explanation in relation to the matters to which you pleaded guilty in the Court of Petty Sessions, Lismore, was forwarded to the State Manager.
The State Manager as delegate of the Australian Postal Commission has issued his decision which is attached.
In terms of the Postal Services Act, 1975 you have the right to appeal against the decision to dismiss you. I attach papers advising the manner of lodging an appeal should you so desire. You should particulary note, however, that an appeal of this nature shall be lodged within fourteen (14) days of this notification of penalty being served upon you.
Should you require any further information appeals are covered by the Postal Services Act, 1975 _ Sections 65-67 and Regulations 15-30. A copy of these will be made available to you on request.'
The decision of the Commission attached to the letter purported to be a decision of a Delegate of the Commission dated 29 December 1981 dismissing the applicant from the service of the Commission. The second document accompanying the letter was a standard form issued by the Commission headed 'APPEAL AGAINST PENALTY IMPOSED _ POSTAL SERVICES ACT 1975' which, so far as relevant, provided:-
'YOU MAY, should you so desire, lodge an appeal against the penalty imposed upon you.
If you decide to appeal, you should complete the attached pro-forma and submit it, either through your supervisory officer or direct to the Authorised Officer by whom the penalty was imposed.
If forwarded under cover, the document should be addressed to:
The Chairman Disciplinary Appeals Board C/- Australia Post G.P.O. BOX 7001
SYDNEY 2001The following information based on Regulations to the Act are provided for your guidance.
Regulation 17 A Disciplinary Appeal shall be made in writing and shall specify the grounds of appeal.
Regulation 18
Provides that any appeal shal (sic) be lodged within 14 days of this notification of penalty being served on you. If you wish to lodge an appeal but for any valid reason are unable to do so within 14 days, you should make immediate application through your supervisory officer for the question of the acceptance of an appeal to be submitted for the consideration of the Chairman of the Appeal Board...
General
Should you desire further information regarding any aspect of the procedure related to an appeal you are advised to make enquiry through either your supervisory officer or your staff association as you see fit.
Appeals are covered by the Postal Services Act, 1975 and Regulations _ Section 65-67 and Regulations 15-30.'
The pro-forma attached to the lastmentioned document was a form of notice of appeal headed 'NOTICE OF APPEAL AGAINST PENALTY IMPOSED' in printed form addressed to 'The Chairman Disciplinary Appeals Board' which in substance read as follows:-
'I hereby appeal under Section 65 of the Postal Services Act against the penalty imposed upon me on the day of 19
My appeal is on the ground/s of (Tick as appropriate)
( ) Severity of the Penalty.
( ) Denial of the Truth of the charge(s)
( ) Any other grounds for appealing against the decision.'
The blank pro-forma notice of appeal was inadvertently torn by the applicant's niece at his home in Lismore several days after he received it. The applicant swore:-
'I contacted a representative of the first Respondent at its office at Lismore shortly after that time on or about 5th January, 1982. I know that person to be MR. JACK GREGOR. I spoke to that person about obtaining a new blank Notice of Appeal. I do not recall the exact words spoken, however Mr. Gregor indicated that a new blank Notice of Appeal form would be sent to me...'
The Commission did not concede that this conversation took place; but did not adduce any evidence to rebut the evidence of the applicant except for the tender of a 'file note' out of the Commission's records apparently made by a personnel officer of the Commission dealing with disciplinary matters and dated 5 January 1982 which records:-
'Mr. Ross contacted Mr. Bennett, Manager Personnel Administration Branch, and requested another form PNL60(b) as his young child had torn it up. Another form was sent today.'
The note has a signature which I cannot decipher; but it could not be a signature of a surname being 'Gregor'. In my view nothing turns on this point. I accept that on or about 5 January 1982 the applicant spoke to an officer of the Commission whose duties included dealing with appeals in disciplinary matters, that the applicant told him that the pro-forma notice of appeal had been torn up and requested another form to be sent to him and that the officer said that this would be done.
Soon after 5 January 1982 the applicant received a new pro-forma notice of appeal which he then handed to his Lismore solicitors. He signed the notice of appeal on 20 January 1982 which was posted that day by his solicitors to The Chairman, Disciplinary Appeals Board. The ground of appeal stated in the notice of appeal was 'severity of penalty'.
The applicant received a letter from the Commission addressed to him dated 22 January 1982 saying:-
'Receipt is acknowledged of your Notice of Appeal dated 20 January, 1980 (sic) lodged under the provisions of Section 65.
The appeal will be forwarded to the Chairman, Disciplinary Appeal Board, and you will be further advised in due course.
Your attention is drawn to Regulation 22 of the Postal Services Act, 1975 which reads:
'At the hearing of a disciplinary appeal, the appellant at the Commission may be represented by counsel, a solicitor or agent who may examine witnesses and address the Disciplinary Appeal Board hearing the appeal on his or its behalf'.
You should note that the Commission intends to lodge an objection to the hearing of your appeal as it was lodged after the 14 day mandatory period specified under Regulations 18.'
The applicant's solicitors replied to the Commission on 26 January 1982. The applicant received a further two letters from the Commission each dated 4 February 1982, one saying:-
'Further to my letter of 22 January 1982 your appeal has been set down for hearing at 11.30 am Wednesday 17 February, 1982 in the Board Room, First Floor, General Post Office, Sydney.
Documents intended to be used at the hearing will be forwarded to you in due course.'
The other letter of 4 February 1982 is in these terms:-
'Please find enclosed copies of documents which may be used at your appearance before the Disciplinary Appeal Board. Your appeal will be heard in the Boardroom, First Floor, General Post Office, Sydney, at 11.30 am, Wednesday, 17 February 1982'.
The applicant handed the letter of 22 January and at least one of the letters of 4 February to his solicitors. He appeared before the Board on the date set down for the hearing of his appeal namely, 17 February 1982 in Sydney and was represented by counsel. The Board was not fully constituted then as the union representative was not present. The hearing of the appeal was then adjourned and came on for hearing on 19 April 1982 when it was constituted by the second, third and fourth respondents. On that day the Board dismissed the appeal on the ground that it had no jurisdiction to determine it.
It is convenient to refer to the relevant provisions of the Act and the Regulations. An officer in the service of the Commission may apply to a Disciplinary Appeals Board against his dismissal from the Service: para. 65 (1) (b). Sub-sections 65 (4) and (5) provide:-
'65. (4) The regulations may prescribe the manner in which, and the time within which, appeals may be made under this section and the manner in which the hearing of appeals so made shall be conducted and may include provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation and the administering of oaths and affirmations.
(5)) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the direction or decision against which the appeal is made.'
Part IV of the Regulations relate to Disciplinary Appeal Boards. Regulations 17, 18 and 19 provide:-
'17. A disciplinary appeal shall be made in writing and shall specify the ground of appeal.
18. (1) A disciplinary appeal shall be made by letter or telegram posted or delivered to the appropriate office not later than 14 days after the date on which the appellant received notice of the decision, direction or refusal from which he is appealing.
(2) The Commission shall, within 7 days after receipt of a disciplinary appeal, refer the appeal to the Chairman of a Disciplinary Appeal Board and shall furnish the Chairman with the name of the officer nominated by the Commission to be the member of the Board referred to in paragraph 66 (2) of the Act with respect to that appeal.
(3) Subject to sub-regulation (4), as soon as possible, and in any event not later than 7 days after the date of receipt of information of a disciplinary appeal, the Chairman of a Disciplinary Appeal Board shall fix a date, time and place for hearing the appeal and shall notify the Commission, the other members of the Board with respect to the appeal and the appellant of the date, time and place so fixed.
(4) The Chairman of a Disciplinary Appeal Board shall, in fixing the date for the hearing of a disciplinary appeal, take into consideration the time that will necessarily be taken by the appellant in travelling to the place of hearing and the time that can reasonably be expected it will take for the appellant to receive the notification referred to in sub-regulation (3).
(5) For the purposes of sub-regulation (1), the appropriate office is the principal office of the Commission in the State or Territory in which the appellant performs his duties.
19. Subject to these Regulations, in the hearing of a disciplinary appeal by a Disciplinary Appeal Board _
(a) the Board may inform itself in such manner as it thinks fit;
(b) the procedure to be followed shall be as determined by the Board;
(c) the Board is not bound by the rules of evidence; and
(d) the Board shall proceed without regard to legal forms or solemnities.'
I turn to the first question whether non-compliance by the applicant with the provisions of sub-regulation 18 (1) deprived the Board of jurisdiction to hear and determine the appeal. The answer to this question depends upon whether the requirement in sub-regulation 18 (1) as to time is a mandatory requirement, the performance of which is a condition precedent to the jurisdiction of the Board to hear and determine the appeal or whether it is directory only, in which case the sub-regulation must be complied with in substance, but failure to comply with it does not deprive the Board of its jurisdiction to hear and determine the appeal.
There are many decisions dealing with the question whether requirements in a statute or regulation are mandatory or directory. I see no useful purpose in reviewing them. The principles to be deduced from the cases are of a very general kind. It is sufficient to refer to Hatton v. Beaumont (1977) 2 N.S.W.L.R. 211 where a full analysis is made by Hope J.A.
Procedural requirements are usually mandatory in character and not merely directory. A rule supported by a great deal of authority over many years is that statutes regulating procedures to be followed in commencing or prosecuting actions in courts generally are mandatory: Public Prosecutor v. Oie Hee Koi (1968) A.C. 829 (at p. 852); Barker v. Palmer (1881) 8 Q.B.D. 9. See Maxwell on The Interpretation of Statutes 12th ed. p. 320.
In my opinion the correct approach to this question in Australia today is that statutes or regulations prescribing procedures to be followed in commencing or prosecuting actions in courts are usually mandatory; but no hard and fast rule can be laid down. It is the duty of courts to try to ascertain the real intention of Parliament by carefully examining the whole scope, framework and language of the enactment to be construed. It is relevant for the courts to inquire whether any real injustice or inconvenience flows from the failure to comply with the procedural provision.
In Hatton v. Beaumont (1978) 20 A.L.R. 314 Jacobs J. delivered a judgment concurred in by a majority of the High Court. His Honour said (at p. 319):-
'To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation...'
See generally R. v. Brush (1968) 1 W.L.R. 1740; Ex parte Tasker; Re Hannan (1971) 1 N.S.W.L.R. 804; R. v. Urbanowski (1976) 1 W.L.R. 455; R. v. Croydon Justices ex parte Lefore Holdings Limited (1980) 1 W.L.R. 1465; R. v. Lincolnshire Appeal Tribunal ex parte Stubbins (1917) 1 K.B. 1; Maxwell on The Interpretation of Statutes 12th ed. at p. 320; Craies on Statute Law 7th ed. at p. 262 and Statutory Interpretation In Australia by D. C. Pearce, 2nd ed. paras. 242 and 243.
In my opinion the provisions of sub-regulation 18 (1) fixing the time within which a disciplinary appeal is to be made are mandatory. The purpose of imposing a limitation of time in the regulation is to ensure that the Commission knows with certainty whether an appeal has been brought from its decision. There is no procedure for any release from that requirement.
A decision of the Commission under sub-s. 64 (1) to dismiss an officer from its service does not take effect _
(a) if the officer appeals against the decision, unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms the decision (para. 64 (2) (a); or
(b) in any other case, until the expiration of the period within which the officer may appeal against the decision to a Disciplinary Appeal Board (para. 64 (2) (b).
It would create uncertainty, inconvenience and injustice in the Service of the Commission if the limitation as to time imposed by sub-regulation 18 (1) was merely directory.
I turn to the second question whether the Commission waived the requirements of sub-regulation 18 (1) as to the time for appealing. This raises an initial question whether this requirement is one that may be waived.
A mandatory provision will impose an obligation on a particular person (or class of persons) for the benefit of a particular person (or class of persons) or the public generally. If the benefit is for a particular person he has a right to waive strict compliance with the requirements. On the other hand if the obligation is for the benefit of the public or otherwise in the public interest the obligation cannot be waived.
As a general rule the conditions imposed by statutes which authorise legal proceedings are treated as being for the public benefit and not merely for the benefit of the parties themselves. But there are cases which have recognised that statutory requirements governing the practice and procedure of courts may be waived. Parkgate Iron Co.Ltd. v. Coates (1870) L.R. 5 C. P. 634 concerned the County Courts Act 1850 (England) s. 14 which allowed an appeal from a County Court provided that the appellant, within ten days, gave notice of appeal and security for costs, and which enacted by s. 16 that no judgment of a County Court judge should be removed into any other Court except in the manner so laid down. It was held that want of due notice and security might be waived and that the provision was intended for the benefit of the respondent and was not a matter of public interest or concern. Bovill C. J. said (at p.637) of the provisions of s. 14:-
'...that there shall be notice of appeal and security, seem to me... to have been intended for the benefit of the respondent. It is not a matter with which the public are concerned. If this be so, it falls within the rule that either party may waive provisions which are for his own benefit, and it comes within the case of Graham v. Ingleby'.
See generally as to waiver Corporation of the City of Toronto v. Russell (1908) A.C. 493; S.S. Constructions Pty. Limited v. Ventura Motors Pty. Limited (1964) V.R. 229; Essex County Council v. Essex Incorporated Congregational Church Union (1963) A.C. 808; Kammins Ballroom Co. Ltd. v. Zenith Investments (Torquay) Ltd. (1971) A.C. 850; Sargent v. A.S.L. Developments Ltd. (1974) 131 C.L.R. 634; Maxwell on The Interpretation of Statutes 12th ed pp. 328 to 331; Statutory Interpretation In Australia by D. C. Pearce, 2nd ed. para. 250; Craies On Statute Law 7th ed. pp. 269-271.
Because of the view I take of the facts in this case I do not find it necessary to decide whether the requirement that the letter or telegram be posted or delivered not later than the period of 14 days specified in sub-reg. 18 (1) is capable of being waived. But, as at present advised, I incline to the view that it may not be waived. The Commission is not a private citizen. It is a statutory body concerned to ensure the existence of an efficient Service. The dismissal of one of its officers will frequently be followed by the appointment of someone in his place. The efficiency and contentment of the Service, the making of appointments and the terms on which they are made require certainty. It would perhaps be strange if a Disciplinary Appeal Board had jurisdiction to hear an appeal at any time after the Commission's decision to dismiss the employee was communicated to him. However, I have no final view on the matter.
In this case the applicant relied principally on the following matters as constituting waiver:-
- the terms of the notice explaining appeal procedures which accompanied the letter of 29 December 1981 from the Commission to the applicant, in particular the terms of the notice purporting to explain regulation 18;
- the terms of the letter of 22 January 1982 and of the two letters of 4 February 1982 from the Commission to the applicant.
The term 'waiver' is often used loosely. In its strict sense it connotes either a form of estoppel or an election.
I do not consider that any of the conduct of the Commission could be correctly characterised as waiver of any benefit which it may have arising from the requirement of sub-reg. 18 (1). The strongest point in the applicant's favour is the language of the notice explaining the appeal procedures which accompanied the letter of 29 December 1981. As there is no provision in the Act or Regulations for extending the period of 14 days within which the letter or telegram must be posted or delivered, the statement in the notice
'If you wish to lodge an appeal but for any valid reason are unable to do so within 14 days, you should make immediate application through your supervisory officer for the question of the acceptance of an appeal to be submitted for the consideration of the Chairman of the Appeal Board'
is extraordinary. Counsel for the Commission informed me that this statement has now been deleted from these notices. It is just as well as it is inaccurate and misleading.
However, what the statement means is that, if the officer of the Commission who has been dealt with by it wishes to appeal from the relevant decision but for some good reason is unable to do so within the period of 14 days after being notified of the decision, he should immediately (I think this means before the expiration of the 14 day period) get in touch with his supervisory officer and ask him to request the Chairman of an Appeal Board to consider entertaining the appeal notwithstanding that the letter or telegram initiating the appeal cannot be posted or delivered within the 14 day period. But here no conduct of the applicant answers this description. He did not get in touch with his supervisory officer and ask him to make any such request of a Chairman of an Appeal Board. Indeed, he did not ask his supervisory officer to do anything falling within the compass of the statement in the notice explaining appeal procedures.
Further, the applicant does not assert that he relied on anything said in the notice explaining the appeal procedures accompanying the letter of 29 December 1981 or in any other document or on any other matter which could constitute waiver. Indeed the applicant's counsel expressly disavowed that the applicant relied on any of these matters.
In short, if the Commission could waive any benefit afforded by sub-reg. 18 (1), the terms of the notice explaining appeal proceedings could not amount to anything more than a waiver of the 14 day requirement provided that the applicant complied with those terms, and this he did not do. There is nothing else in the letter of 29 December 1981 or the documents accompanying it which could be described as a waiver by the Commission of its rights or benefits.
The letter of 22 January 1982 and both letters of 4 February 1982 do not constitute a waiver of the respondent's rights. It is true that they acknowledge the 'Notice of Appeal dated 20 January 1980 (sic) lodged under the provisions of s. 65' and refer to the appeal being forwarded to the 'Chairman, Disciplinary Appeal Board' and to the appeal being heard on 17 February 1983. But those statements must be viewed in the light of the statement in the last paragraph of the letter of 22 January 1982 'You should note that the Commission intends to lodge an objection to the hearing of your appeal as it was lodged after the 14 day mandatory period specified under regulations (sic) 18'.
Counsel for the applicant argued that in all the circumstances the Board had waived the requirements of sub-reg. 18 (1). There are several answers to this. First, in my view, even if the Commmission could waive the requirement, the Board could not do so. Reliance was placed on reg. 19, in particular paras. (b) and (d) which provide that, subject to the Regulations, in the hearing of a disciplinary appeal by a Disciplinary Appeal Board the procedure to be followed shall be as determined by the Board and the Board shall proceed without regard to legal forms or solemnities. But this provision cannot be the source of a power to waive the requirements as to the Board's own jurisdiction to hear the appeal. Regulation 19 assumes a properly instituted appeal is on foot and then defines the Board's powers with respect to the hearing of the appeal. Further, on the facts of this case the Board cannot be treated as having waived any rights even if one regarded the Commission as the Board's agent for this purpose.
I would dismiss the application with costs.
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