Stapleton, P.K v Donaldson, R.

[1988] FCA 716

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G351 Of 1988
GENERAL DIVISION	1

! BETWEEN: PETER KEVIN STAPLETON

Applicant

AND:  R. DONALDSON, A. MORGAN and J. EVANS
Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 DECEMBER 1988
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. the application for an extension of time be

refused;

2.    the princlpal application be dismissed;

3.    there be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALlA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G357 Of 1988

DIVISION GENERAL 1

BETWEEN: PETER KEVIN STAPLETON

Applicant

AND: R. DONALDSON, A. NORGAN and J. EVANS
Respondents

PINCUS J. 12 DECENBER 1988

REASONS FOR JUDGNENT

This is an application for an extension of tlme within

which to lodge an applicatlon for an order of review under the

Administratlve Decisions (Judlcial Review) Act 1977. The decision

sought to be reviewed is one of a Promotion Appeal Committee

disallowing the applicant's appeal against another officer's

promotion to a posltion within the Australian Customs Service.

Under s.ll(l) of the Judicial Review Act such an

application has to be lodged "within the prescribed period or

within such further time	as the Court ... allows". That	is so
because here the terms	of the decision were recorded	in writing

I and set out in a document that was furnished to the applicant.
That occurred on or about 17 August 1987. Under s.ll(3) the
prescribed period depends on the circumstances, but in this case
it is I think common ground that the limit is governed by

L .

s.l1(3)(b)(lii) - i.e. the	prescribed perlod IS that "commencing
on the day on which the	decision is made and ending on the
twenty-eighth day after	. . . the day on which a document setting
out the terms of the	decision is furnished to the applicant".

That is, the last day for making the application was

about 14 September 1987. The application for an order of review,

having been made on 3 November 1988, was thus over a year late.

The application for an order of review which has been

filed sets out as a ground that the respondents (the members of

the Promotion Appeal Committee) took into account irrelevant

considerations in disallowing the applicant's appeal to them, but

no such onsiderations were m ntioned in argument. The

substantial ground of attack 1s that the respondents "received

lncomplete and/or misleading information" from the Customs Service

or interpreted information from the service In such	a way that it
was incomplete or misleading.

Two positions, described in the material as "CLAD 8",

were advertlsed in January

A selectlon committee comprising, amongst others, a Mr. Kerwick 1987, namely positions no. 585 and 274.

intervlewed the applicant for these two positlons and he was later

told that he was unsuccessful. As to position no. 585, the

applicant was told that he was second choice.

As to position 274, the successful applicant was a Mr

Valentine and the applicant appealed to a Promotion Appeal

Committee. That appeal	was disallowed on	17 August 1987, as
mentioned above.

On 18 August 1987, one of the respondents, I4r Donaldson,

told the applicant, amongst other things, that "the advice given

to the PAC was that I had been rated behind Mr. Valentine for both

of the CLAD 8 positions. He stated that the basis of this view

was information given to the PAC by	Mr. Kerwick of the	ACS,
Brisbane".

On 2 September 1987, the applicant wrote to the

Collector of Cus toms complaining about the matter and he received

a reply dated 23 September 1987, which he found unsatisfactory.
On 25 November 1987 the applicant wrote to the Comptroller-General
on the advice of his solicitor and complained in particular that
the Promotion Appeal Committee had been told by 1-lr Kerwick that 1.Ir
Valentine had been rated ahead of Mr Stapleton for position 585;
the applicant said that was in conflict with what he had been

previously told.

The Acting Comptroller-General replied on 7 December

1987 suggesting, in effect, that

Protection and Review Agency (MPRA). an approach be made to the Plerit

On 1 March 1988, the applicant wrote to that agency

asking that the matter be looked into and on 28 July 1988 the J

director of the agency sent the appllcant a report by an

investigating officer, which was said to have been agreed in and
adopted by the agency.

I .

4 .

The report says that, having interviewed the applicant

and Mr Valentine, the Promotion Appeal Committee was "generally,

impressed by	I?r	Stapleton and unimpressed by Mr Valentine". It
goes on:

"The	members	of	the	PAC all	recall	the	views	they
then	held	on	the	way	Mr	Valentine	responded,	or

I

failed to respond, to their questions on aspects of

the selection criteria and specifically in relation

to technical knowledge of personnel procedures."

I

It then says in effect that they spoke to other people,

including Plr Kerwick. The report goes on:

"The PAC interpreted the information given by Mr

Kerwick as indicating that Mr Valentine had been

rated ahead of Mr Stapleton for both of the CLAD 8

positions. This information, in the view of all

the PAC members, was crucial in arriving at heir

decislon.	This	information	was	not	correct,	in
that	Mr	Stapleton	was	the	second	oftwo candidates

who were recommended for promotion tohe other

CLAD 8 position	(position no. 585) and Mr Valentine
was not placed	on this order of merit."

It was not suggested before me that, in golng about the

matter in this way the	committee had acted other than lawfully,
but I cannot refrain from commenting that the procedure adopted
seems to me odd.	It appears that, but for the alleged opinion of

the selection committee as to the relative merits of the two

applicants, the Promotion Appeal Committee might well have allowed

the applicant's appeal.	It is not clear to me why the Promotion
Appeal Committee relied	on that opinion; one would have thought
its task was to form its own opinion rather than to act	on that of
the original selection committee. However, it	is not suggested

that the use of the information from Mr Kerwick involved any

illegality or impropriety on the part of the Promotion Appeal

Committee other than in one respect, namely that the fact stated

by Mr Kerwick was either wrong or misinterpreted.

The report from the agency's investigating officer goes

on to analyse how it came about that the Promotion Appeal

Committee obtained a wrong impression of the opinion of the

original selection committee.	It is unnecessary for the purposes
of determining the application for	an extension of time to discuss
that material; it suggests some criticlsm	of the work of the

selection committee and also that of the Promotion Appeal

Committee.

The officer concludes by saying, in effect, that that

Promotlon Appeal Committee received Incomplete or misleading

informatlon or interpreted information it received	"in such a way
that it could be regarded	as incomplete or misleading" and that

was crltical to the declsion it took.

!

The document just referred to was, as I have said,

forwarded on 28 July 1988 to the applicant. On 26 October 1988,
the applicant was told that two	new positlons of Administrative
Service Officer Class 7 were to be gazetted and	on 31 October the

I

applicant was informed by a minute that I.Ir Valentine had been

appointed to act in one of the positions, pending permanent

i filling. The applicant says:

"I then r alised that, by not challenging the

respondents' decision who disallowed my Appeal

against Valentine's Mr pronlotion the subject of

this application, I would suffer a future economic

!

loss as well as a past economic loss."

It should be added that the position which was the Committee was affected by administrative changes on 24 December 1987. However, the effect of those changes is unclear to me, and subject of the applicant's appeal to the Promotion Appeal

I do not take them into account against the applicant.

In Hunter Valley Developments Pty Ltd v. Hinister f o r Home Affairs and Environment (1984) 58 A.L.R. 305, Wilcox J. at pp.310 and 311 suggests a number of princlples which might guide the exercise of the Court's discretion in a case of this sort. One is that it is a precondition to the exercise o f the discretion

in the applicant's favour that he show an	"acceptable explanation
of the delay". That, this applicant	plainly has not done,

although there are reasons glven for the delay. They amount to no more than this, that the applicant sought a remedy other than judicial revlew; but he was given an answer by the Merlt Protection and Review Agency more than three months before he

commenced these proceedlngs.

It does not seem to me correct that there always has to

be an "acceptable explanation". In some circumstances, it may be right to extend the time although there has been dilatoriness on the part of an applicant.

Another consideration mentioned by Wilcox J. is that the
merits of the substantial application may be taken into account.
Here, thaL consideration goes rather against the applicant. The

complaint made is that a factual point which turned out to be

important was either misunderstood by the Promotion Appeal

Committee, o r else it was misinformed. There is	no suggestion
made that it committed any legal error,	in the ordinary sense.

It is true that sound factual er rors are within the

scope of s.5(1) of the Judicial Review Act, which by paragraph (h)

includes the ground:

"that here was no evidence or other material to

Justify the making of the decislon."

However, the use of that ground is confined by s.5(3).

The operation of that provislon was considered, again by Wilcox J., in Television Capricornia Pty Ltd v. Australian Broadcasting

Tribunal (1986) 70 A.L.R. 147. Although the effect of s.5(3)(b)

is rather obscure, it cannot have been intended, in my opinion,
simply to allow review of administrative decisions on the basis of

a challenge to the correctness of any o f the facts on which the

decision was based. However, I find it unnecessary to reach a

concluslon on the precise scope of s.5(3)(b) for the purpose of

deciding this application. I take into account, however, against

the applicant, that the case sought to	be brought is based purely
on	factual e r r o r .

It was suggested in argument that the public interest

I

should be considered. In my opinion that is correct. If it

seemed likely that a mistake had been made	of such a kind that its
...	.

8.

correction would significantly advantage the community	as a whole,
or some section of it, that must work in favour of	an applicant

who is late.	Here, there is nothing to suggest	an endemic problem
consisting in	the	Promotion Appeal Committee being persistently

misled.	All that is sought to be raised is that on one occasion,
in one important respect,	it was given wrong information - or
else, perhaps, misunderstood information it	was given.

Lastly, there is of course the fact that things have not

stood still In the meantime. 14r Valentlne no longer occupies the

position in question and may never again do so. I can see that in

some circumstances disputes about promotion may properly be

entertained after the situation consequent upon the impugned

promotion has changed	as substantially, as it has here, but it
cannot be rlght, in my	opinion, to encourage the thought that

questions of dlsputed promotion should be dealt with other than

promptly.

_-

The appllcation for an extension of time must be

refused.

certlfy that this and the 7 preced,,lg

judgment herein of His Honour

pages are a trua copy of the reasons for

Mr. Justice Pincus

~ a t e a l a . D.=->& Iqss

!

I