Schultz, Lancelot Franklin v Beldon, Edmund Michael

[1983] FCA 322

Re: LANCELOT FRANKLIN SCHULTZ
And: EDMUND MICHAEL BELDEN, IAN HAMISH GAMMAGE AND JOHN STEWART FRASER BOWAN
AND: IAN STANLEY LINCOLN
AND: ROBERT WILLIAM COLE, ROBERT JOHN YOUNG AND JOHN VINCENT MONAGHAN
No. ACT G71 of 1983
Administrative law
6 IR 115

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

ADMINISTRATIVE LAW - Judicial review - Extension of time in which to lodge application - review of decision of Promotions Appeal Committee - reasons for delay - need for financial assistance - delay of 22 days.

Administrative Decisions (Judicial Review) Act 1977 s 11

Lucic v. Nolan & Ors. (1982) 45 A.L.R. 411

Becerra v. Fowell & Anor. (unreported decision of Morling J. - 18.2.83)

HEARING

CANBERRA

#DATE 10:11:1983

ORDER

The time within which to lodge the application for an order of review be extended up to and including 6 September 1983.

JUDGE1

The applicant, Mr. Lancelot Franklin Schultz, has applied to this Court under paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 for an extension of the time within which to lodge an application under that Act for an order of review in respect of a decision of the first respondents, being the members of a Promotions Appeal Committee constituted under the Public Service Act 1922, allowing an appeal by Mr. Ian Stanley Lincoln, the second respondent, against the applicant's provisional promotion to a position of Foreign Affairs Officer, Class 4, in the Department of Foreign Affairs. The extension sought is up to and including 6 September 1983 when the application for the order of review was filed.

The applicant was provisionally promoted to the position of Foreign Affairs Officer, Class 4, on 5 August 1982. Eleven other officers were provisionally promoted at the same time to positions of similar designation and classification. Twenty-one officers lodged appeals against the provisional promotion of Mr. Schultz, eleven of those appeals being protective appeals lodged by the officers who had been provisionally promoted at the same time as Mr. Schultz. Mr. Schultz himself lodged protective appeals against those eleven officers. Mr. Lincoln, who had not been provisionally promoted, lodged an appeal against the promotion of Mr. Schultz and of each of the other eleven promotees.

At the time of his provisional promotion and until he resumed duty in Canberra on 6 June 1983 Mr. Schultz performed his duties at the Australian High Commission, London.

By letter dated 6 June 1983 the Promotions Appeal Committee informed the Secretary to the Department of Foreign Affairs that the appeals against the provisional promotions had been determined. The appeals against the provisional promotion of nine of the officers were disallowed. An appeal against the provisional promotion of each of the other three officers, including Mr. Schultz, was allowed. In the case of Mr. Schultz the appeal of Mr. Lincoln was allowed. The Secretary was also informed by the same letter that the Public Service Board had cancelled the provisional promotions of those three officers and had promoted the successful appellants.

According to Mr. Schultz he became aware on 7 June 1983 that Mr. Lincoln's appeal against his promotion had been allowed. On the same day he became aware, he says, of a written record prepared by a committee that interviewed him while he was overseas in connection with his application for promotion to the position. He was informed that a copy of the interview report prepared in respect of each officer who was an applicant was available, on request, to that officer if he were performing duty in Canberra. He was also informed that the interview reports, including that relating to himself, were forwarded to the Promotions Appeal Committee in connection with its consideration of the appeals. His contention is that the interview report contained material adverse to him and was taken into account by the Promotions Appeal Committee without giving him an opportunity to deal with it by refutation or otherwise. That will be one of the matters for consideration on the hearing of the substantive application if the present application is granted.

On the same day, 7 June 1983, Mr. Schultz sought advice from Mr. J.E. Smythe of the Administrative and Clerical Officers' Association. On the following day Mr. Schultz wrote to the Chairman of the Promotions Appeal Committee requesting him to furnish a statement under section 13 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision to allow Mr. Lincoln's appeal. Mr. Schultz made an inquiry by telephone on 8 July 1983 as to when he could expect to receive the statement as 28 days had elapsed since his request was made.

A statement under section 13 of the Act was forwarded to Mr. Schultz by the Chairman of the Promotions Appeal Committee under cover of a letter dated 13 July 1983. Mr. Schultz has stated in his affidavit sworn on 6 September 1983 and filed herein that, to the best of his recollection, the statement was received by him on 18 July 1983.

Had the application to review the decision of the Promotions Appeal Committee been filed on or before 15 August 1983, no extension of time would have been necessary. The application was in fact filed on 6 September 1983 so that an extension of 22 days is now requested.

Mr. Schultz has explained the delay in filing the application. First, he says that he was not aware until 25 August 1983 that there was a time limit within which to apply to this Court under the Administrative Decisions (Judicial Review) Act 1977. He says that he was informed on or about 7 June 1983 that the Act imposed a time limit of 28 days on the furnishing of a statement under section 13 but that in none of the conversations he had with Mr. Smythe prior to 25 August 1983 and in none of the conversations he had with officers in the Staffing section of the Department of Foreign Affairs was he informed of the time limit for filing an application for an order of review. Mr. Schultz appears to have relied on advice from the above sources as to the procedure to be followed and did not consult a solicitor until advised on 25 August 1983 that the time for filing an application to the Court had already expired.

Secondly, Mr. Schultz says that the delay in filing the application was due to delay by the Administrative and Clerical Officers' Association in considering an application to that Association for financial assistance to enable him to bring these proceedings. That application for assistance was not made until 27 July 1983, the applicant having taken no steps to approach that Association or, indeed, to prepare a submission for assistance until after he had received from the Chairman of the Promotions Appeal Committee the statement under section 13 of the Administrative Decisions (Judicial Review) Act 1977.

On 25 August 1983 Mr. Schultz enquired of the Association whether assistance was to be granted to him. He also enquired whether there was any time limit on making an application to the Court and was informed later on the same day that the time limited by the statute had expired and that he should seek legal advice.

Mr. Schultz arranged to see a solicitor and a conference took place on the following day, 26 August 1983. The solicitor, by letters dated 29 August 1983, informed the Chairman of the Promotions Appeal Committee and Mr. Lincoln that he expected to receive instructions within the next seven days to take proceedings to challenge the decision of the Promotions Appeal Committee.

On 2 September 1983 the applicant was informed by the Administrative and Clerical Officers' Association that it was prepared to assist him in the proceedings. Mr. Schultz has deposed that, because of relocation expenses incurred by him on his return to Canberra in June 1983 from a posting in London, he was not in a financial position to commence the proceedings unless he received that assistance.

The application was opposed by the respondents. For the first and third respondents emphasis was placed on the public interest in the need for finality in disputes, particularly disputes concerning promotions, affecting as they do the orderly administration of the public service. Counsel did not press this submission so far as to exclude in all cases the granting of an extension of time but submitted that an extension should only be granted in special circumstances. Counsel further submitted that the determining factor which resulted in the application being filed out of time was the applicant's reluctance to commence the proceedings until assured that financial assistance would be available to him through the Administrative and Clerical Officers' Association. This, it was submitted, did not amount to a sufficient reason to allow an extension and reference was made to the following passage in the judgment of Fitzgerald J. in Lucic v. Nolan and Others (1982) 45 A.L.R. 411 at pp. 417-8:

"Although in the event it does not matter, I am quite unpersuaded that an absence of legal aid at any time impeded the relatively formal step of the filing of an application which could later be expanded (s.11(6)). Indeed, I doubt whether the legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any delay in obtaining a grant of legal aid; except in exceptional circumstances. It seems to me that, in general at least, it is for the Legal Aid Commission to meet times fixed by statute or by the courts rather than for an absence of legal aid to provide an excuse for noncompliance." Reference was also made to the judgment of Morling J. in Becerra v. Fowell and Anor. (unreported - 18 February 1983) where, in dealing with a submission that some part of the delay in that case was due to an unsuccessful attempt to obtain legal assistance to bring the application, his Honour said: "But I can see no reason why at least she could not have made her application within time, leaving until a later date the making of a final decision as to whether she would pursue it to its conclusion without legal aid."

In addition to the matters relied upon by the first and third respondents, the second respondent asserted that he would suffer substantial prejudice if the application were granted. Prejudice was said to arise in two ways. First, it was said that the second respondent, being unaware that the applicant intended to question the correctness of the decision of the Promotions Appeal Committee, did not apply for promotion to one of the positions of comparable designation and classification which had been advertised on 7 July 1983 and for which applications closed on 21 July 1983. The applicant had, however, applied for one of those positions and had on 13 October 1983 been provisionally promoted. Secondly, it was said that his professional standing and opportunities for career development were being adversely affected by the continuing uncertainty surrounding his promotion.

I do not propose to discuss the merits of the application for an order of review of the decision of the Promotions Appeal Committee beyond saying that the application appears to raise a substantial, arguable question concerning the procedures of a Promotions Appeal Committee where some or all of the parties to the appeal are performing duty overseas.

The period for which the extension is sought is a comparatively short period and the first and third respondents would have been aware from the communications regarding the furnishing of a statement under section 13 of the Administrative Decisions (Judicial Review) Act 1977 of the possibility that an application would be made to the Court for an order of review. So far as the second respondent is concerned, the matters to which he refers would have affected him if the application had been filed within the prescribed period - he has not shown any additional prejudice arising from the delay of 22 days in filing the application.

While I agree that delay in obtaining legal aid will not, in general, provide an excuse for non-compliance with the time limits prescribed by the statute, in the particular circumstances of this case it was not, I think, unreasonable for the applicant to delay the filing of the application for a short period until he could be assured that legal assistance would be available to him.

In the result I am satisfied that this is an appropriate case in which to grant an extension of time. I, therefore, order that the time within which to lodge the application for an order of review be extended up to and including 6 September 1983.