Twining v Australian Public Service Commission
[2005] FMCA 1738
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TWINING v AUSTRALIAN PUBLIC SERVICE COMMISSION | [2005] FMCA 1738 |
| ADMINISTRATIVE LAW – Judicial review – application for extension of time – explanation for delay – unaware of right to judicial review – researching issues – prejudice to public administration – small agencies – effect on third parties – merits – futility – extension refused – application dismissed. |
| Administrative Decisions (Judicial Review) Act1977, s.11 |
| Aleksander Peter Skorich v Merit Protection & Review Agency [1997] 266 FCA Comcare v A’Hearn (1993) 119 ALR 85 Gallo v Dawson (1990) 93 ALR 479 Harris v Moore, Delegate of the Secretary of the Department of Health Housing & Community Services & Anor (1993) 34 ALD 333 Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 58 ALR 305 |
| Applicant: | ANTHONY ALBERT TWINING |
| Respondent: | AUSTRALIAN PUBLIC SERVICE COMMISSION |
| File Number: | CAG 19 OF 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 9 November 2005 |
| Delivered at: | Canberra |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Advocate for the Respondent: | T Howe |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 5 May 2005 for extensions of time be dismissed.
The application filed on 5 May 2005 for judicial review of the decisions of 17 September 2004 and 5 November 2004 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 19 OF 2005
| ANTHONY ALBERT TWINING |
Applicant
And
| AUSTRALIAN PUBLIC SERVICE COMMISSION |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment given on 10 November 2005 which has been revised and edited from the transcript.
Mr Twining was employed by the Australian Public Service Commission (APSC) from 7 June 2004 as an APS Class 3/4. His employment was subject to a condition of probation for a period of three months which could be extended to a maximum of six months. His three month probation was initially extended by one month.
On 17 September 2004 his probation was extended by a further two months to the maximum six month period. The decision was made by Ms Jacqui Curtis who was the Director of SCDT in the APSC. I will refer to this decision as ‘the probation decision’.
On 5 November 2004 Mr Twining's employment as an ongoing employee with the APSC was terminated by Michael Damien Jones, a delegate of the Public Service Commissioner. I will refer to this decision as ‘the termination decision’.
On 5 May 2005 Mr Twining applied to this Court for orders quashing both the probation and termination decisions. He sought extensions of time in which to apply for judicial review of those two decisions. He also sought further relief which is not relevant for present purposes.
On 1 July 2005 the APSC sought dismissal of the extension of time applications. In addition it submitted that the probation decision should be dismissed as it was beyond the Court’s jurisdiction.
Extension of time
Section 11 of the Administrative Decisions (Judicial Review) Act1977 sets out the manner of making applications. An application must be lodged within the prescribed period or within such further time as the court concerned allows.
It is agreed that the prescribed period in this matter was 28 days after the decisions were furnished to Mr Twining. Mr Twining received these documents soon after they were promulgated in 2004 but his application to this Court was not made until 5 May 2005.
The application for the probation decision was approximately seven and a half months after the decision. The application for the termination decision was approximately six months after the decision.
There is a discretion vested in this Court to extend the time beyond the 28 day period (s.11(1)(c)). It is common ground that Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 58 ALR 305 at 310 outlined the principles to be applied. In that decision his Honour enunciated the various considerations, including:
·whether there was an acceptable explanation for delay
·what action the applicant may have taken after the decision to make the decision-maker aware that the decision was still contested
·any prejudice to the respondent
·considerations of public interest
·the merits of the substantial application
·considerations of fairness between the applicants and other persons in a similar position.
These principles have been applied by the courts with one modification. It is now agreed that an acceptable explanation for delay is not a precondition to granting of an extension of time. Rather it is a consideration that must be taken into account and a significant consideration: Comcare v A’Hearn (1993) 119 ALR 85.
In this matter there are three issues
·Mr Twining’s explanation for his delay
·the prejudice to the APSC
·the merits of Mr Twining’s case.
I will deal with each of these in turn.
Explanation for delay : unaware of right to judicial review
Mr Twining’s explanation for his delay turned upon his lack of awareness of his right to judicial review. In his affidavit filed on
5 May 2005 he said:
I first became aware of my right to judicial review under the Administrative Decisions (Judicial Review) Act 1977 on 14 April 2005, after failing to persuade the Respondent to reconsider the termination of my employment on the basis of evidence which came to light on 14 March 2005.
He said that he then searched the Court web site and became aware that he could make an application.
However, on 27 September 2004, after the probation decision but before the termination decision, Mr Twining extracted from the APSC web site a document on probation which is at page 44 of the annexures to his affidavit filed on 29 June 2005. In this document he noted an appointment with Patrick Palmer an officer of the Merit Protection and Review Agency (MPRA). This document says in part:
Taken together with the requirements of the Administrative Decisions (Judicial Review) Act 1977 and the Privacy Act 1988 these Values do require agencies to ensure…
So at that stage as a result of his own research he was made aware of the AD(JR) Act. He gave evidence that he saw Mr Palmer about
27 September 2004. He said that he saw Mr Palmer because he was not happy with the probation decision of 17 September 2004.
Mr Palmer told him that he should seek a review of action that is, internal review, by the APSC of the decision. If he was unhappy with the review of action then he could go to the MPRA. The MPRA however would not be able to make a determinative decision. Mr Twining said that Mr Palmer referred to the possibility of judicial review after he had undertaken other internal avenues. Judicial review was the final step.
Mr Twining said at that stage he was not sure what judicial review meant, apart from going to the court and putting his case. He testified that he did not seek to access the AD(JR) Act on the Commonwealth legislation data base and he made no other inquiry about judicial review at that time.
The parties also put to me as agreed facts the following from Mr Palmer. Mr Palmer generally accepted the substance of Mr Twining’s account. Mr Palmer could not recall any specific reference to the AD(JR) Act in the conversation. He advised Mr Twining that he was unaware what avenues were available in the Federal Court. He told Mr Twining that he should seek advice on this.
In his affidavit filed on 29 June 2005 Mr Twining referred to oral submissions he made on 29 October 2004 to Ms Blake who was conducting the review of action. He first requested mediation between himself, Ms Flynn and Mr Bedford. Secondly he submitted that if Ms Flynn lied about her advice concerning confirmation of Mr Twining’s employment, he would "move heaven and earth, AAT, Federal Court, HREOC, whatever" to expose her. Thirdly he submitted that if there were certified barriers to advancement within the broadbands, applicants and interviewees should be informed of it. Finally he submitted that any employees could apply for an interpretation of the certified agreement.
Mr Twining testified that the reference to action in the Federal Court was to the possibility of seeking an interpretation of those provisions on work level standards and performance ratings in the certified agreement under the Workplace Relations Act 1996. The reference was not to a challenge to probation and employment decisions relating to him.
At paragraph 10 of his affidavit filed on 29 June 2005 Mr Twining referred to an email that he sent to Mr Mike Jones, a senior officer of the APSC on 28 October 2004 which said:
I don't like this and it appears we are drifting ineluctably towards a showdown in the Federal Court.
Again Mr Twining said he was considering an application to the Federal Court for an interpretation of the APSC certified agreement under the Workplace Relations Act. The words had been included in the email as a threat made in frustration.
Mr Twining’s explanation for the reference to the Federal Court in these two documents is inherently implausible. The certified agreement issue arose in July 2004 in the context of performance appraisals. These two documents related to Mr Twining’s own employment issues that arose in September and October 2004.
The email to Mr Jones was not about the certified agreement issues. Rather it concerned Mr Twining’s review of action, and complaints on code of conduct breaches by other officers of the Commission and the monitoring and assessment of his performance as a probationer. I also note that the email to Mr Jones was one week before the termination decision.
I do not suggest that Mr Twining deliberately misled the Court. In my view he has perhaps unconsciously reconstructed the events in a way which was more suitable for his case.
The notice of termination dated 5 November 2004 has a section headed "Avenue for Review of this Termination Decision":
There is no right of review or appeal under the Public Service Act 1999 or the Public Service Regulations 1999 in relation to termination of employment. The Commission's Certified Agreement provides that the sole and exhaustive rights and remedies of an employee in relation to termination of employment are those that the employee enjoys under Division 3 of Part VIA of the Workplace Relations Act 1996, other Commonwealth laws (including the Constitution) and common law.
The Workplace Relations Act 1996 provides remedies for both unfair dismissal and unlawful termination. Where, however, an employee is serving a period of probation which has been determined in advance and is reasonable having regarding to the nature and circumstances of the employment, employees do not have access to these remedies.
In my view this notice of the appeal rights or avenues for review is almost totally inadequate. It is not helpful. Reference to other Commonwealth laws is vague at best. There is no specific reference to the AD(JR) Act. On the other hand it advised and should have alerted Mr Twining to the possibility of redress under other Commonwealth laws including the Constitution. It alerted him to the existence of those rights.
Mr Twining gave evidence that about 15 to 20 November 2004 following the termination letter he sought advice from the Legal Advice Bureau conducted by the ACT Law Society and another lawyer who he described as a person he had dealings with some time earlier and who was a friend. Paragraphs 14 and 15 of his 29 June 2005 affidavit said:
I sought preliminary advice from two solicitors on whether a termination decision could be considered under the ADJR Act. Neither was able to advise: the first admitted that he simply didn't know, but that his firm did administrative law for a fee of $300 per hour; while the second lamented the loss of access to unfair dismissal provisions by probationers under certified agreements.
While I was aware that $300 per hour is not an extraordinary fee, given the potential complexity of my case, and my then failure to locate crucial evidence (the draft performance agreement in Ms Flynn's handwriting), without which I thought I could not demonstrate merit, I could see little point in engaging a solicitor and exhausting my limited savings on speculation.
In oral evidence Mr Twining said that his solicitor friend had misadvised him. He had actually said that there was no remedy under the AD(JR) Act, only under the Workplace Relations Act. His oral evidence to that extent conflicted with that in his affidavit.
He agreed under cross-examination that the two solicitors had been unable to satisfy his query. Given what it might cost him he said that there was little point in engaging a solicitor. This view is of some significance when read with paragraph 15 of the affidavit set out above.
Mr Twining also testified that he had contacted the Administrative Appeals Tribunal, the Office of the Employment Advocate and the Commonwealth Ombudsman's Office. They were not able to advise him on his appeal rights.
Has Mr Twining offered an acceptable explanation for the delay in filing for judicial review? As I noted before this is not a pre-condition for the exercise of my discretion, but an important consideration.
Mr Twining filed on 5 May 2005 some seven and a half months after the probation decision, and six months after the termination decision. In his 5 May 2005 affidavit he said that he did not discover his rights under the AD(JR) Act until 14 April 2005. While I do not believe that Mr Twining has been deliberately untruthful, I find his explanation both unconvincing and most unsatisfactory.
The evidence indicates that the possibility of judicial review was brought to Mr Twining’s attention both directly and indirectly very early. For example, see the extract from the APSC web site of
29 September 2004 (paragraph 14 above).
Mr Twining gave evidence that judicial review was an active consideration in his mind at an early stage. Strangely and perhaps unconvincingly he thought it only relevant to the probation but not the termination decision. Indeed as Mr Howe for the APSC said there were a whole range of signposts suggesting judicial review should be explored and should not be ignored. But Mr Twining appears to have ignored those until the lodging of his application.
As I have pointed out Mr Twining gave evidence that at one stage he deliberately chose not to pursue judicial review because he thought it was fruitless and would be expensive. However the onus was on Mr Twining to resolve the issue.
Although spoken in a different context the comments of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 481 are apposite:
A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes, McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O.70, r.3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because a person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.
Prejudice to public administration : APSC a small agency
In Hunter Valley Developments Wilcox J said at 311:
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.
The APSC submitted that it was only a relatively small agency and the reinstatement of Mr Twining would impact on its administration. This was supported by affidavit evidence of David Mylan, the Chief Financial Officer of the APSC, filed on 19 July 2005 and of Gordon McDonald, a Director in the relevant group in the APSC, filed on 19 July 2005.
Their evidence included:
·the APSC's 2005/2006 budget provided for a reduction in staff numbers which would continue at least until 2008-9;
·currently there was only one vacancy at the APS3/4 level and that was for a specialist IT person;
·the APSC would be recruiting three graduates in January in 2006. Following their training they would be placed at the APS 3/4 level;
·positions previously held by Mr Twining had been filled by permanent employees;
·all bar one APS 3/4 position in the group were filled by permanent employees;
·the one exception was being back-filled while the permanent APS 3/4 occupant was undertaking higher duties;
·the present budget of the APSC was very tight. If Mr Twining were reinstated, some programs would need to be deferred or cancelled.
Mr Twining said that the staff situation in the APSC was fluid. It was not set in concrete. Indeed he would be prepared to accept part-time work if returned to the APSC. For current purposes, I think this is beside the point.
Mr Howe for the APSC submitted that it was only a small body. There was no regular staff turnover such as expected in larger organisations. Although reinstatement of Mr Twining would not be an impossibility, it would be difficult and a burden. An adjustment would need to be made to the APSC's budget and programs offered by the APSC could be affected.
Furthermore, had the probation decision been challenged within the relevant time, the APSC would have had notice of it when it was considering the termination of Mr Twining's employment. Being on notice that the decision to extend probation was subject to a legal challenge may have altered the approach that the APSC took when considering the termination decision.
In Hunter Valley Developments Wilcox J said at 311 to 312, and 314:
It is in relation to the former category of cases, ie those "which affect only the immediate parties" that the approach adopted by Bray CJ in Lovett v Lagall (1975) 10 SASR 479 at 485, in respect of private litigation but adopted in this context in both Doyle at p 287 and Duff at p 485, is apposite namely: "If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension."
By contrast, in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even only after a short delay.
…
An applicant concerned to challenge a decision which has implications for other people or for day-to-day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications.
In Aleksander Peter Skorich v Merit Protection & Review Agency [1997] 266 FCA Finn J said at 4 to 5:
The expeditious implementation of the Public Service Act 1922 disciplinary regime … and the need for its orderly administration across the Australian Public Service … 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 ….
In Harris v Moore, Delegate of the Secretary of the Department of Health Housing & Community Services & Anor (1993) 34 ALD 333 the Full Federal Court said at 338:
The department has both a private and public interest in the orderly and efficient discharge of its functions. This necessarily involves the disposition of personnel to discharge certain work functions. Proper management principles require that there is certainty and a chain of responsibility by necessary positions being filled with qualified persons. Obviously, individuals will be affected by disruptions in the placement of persons to positions and the permanency attaching to appointment to a classified position.
Where therefore the relevant decision in respect of which judicial review is sought relates to personnel management and in particular to the permanent appointment to particular positions, delay and uncertainty have the potential to lead to problems in proper departmental management, service delivery, and human resource management until the question of judicial review has been permanently resolved.
Then further at 338 to 339:
That is, delay in the institution of proceedings led to a failure to arrest the process of filling the position before a permanent appointment was made. Once that occurred the rights and interests of that appointee became involved as did the wider public interest in the orderly administration of the department. His Honour treated that consequence, occurring as it did because of the delay, as important. He said: -
"Therefore because of the long delay in instituting the application the position which had been held by the applicant on a probationary basis had been filled. That is a very important factor, having regard to the weight that must be given by the Court to the effect on other persons arising from the delay."
In adopting that view it cannot be said that his Honour wrongly had regard to some irrelevant consideration.
For the reasons submitted by Mr Howe and having regard to the considerations which are discussed in Hunter Valley Developments, Skorich and Harris, Mr Twining’s delay in instituting proceedings in my view as the potential to significantly prejudice the APSC. This is an important factor to which I give significant weight.
Merits
In Hunter Valley Developments Wilcox J said at 311:
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
Nevertheless, an extension of time hearing is not the place for a full blown inquiry into the merits.
Mr Twining's 5 May 2005 affidavit set out twelve grounds. The APSC submitted:
The applicant has clarified that each of the grounds contained in his application relate to both the probation decision and the termination decision. It is submitted that the twelve grounds upon which the applicant relies have little merit.
The APSC submitted that in general Mr Twining claimed that the decisions were defective because of the review of action and/or the code investigation requested by him were defective. The short answer to these claims was that Mr Twining had the opportunity to address the evidence before the decision-maker, including the review of action and the code investigation. The APSC asserted that Mr Twining's protests were really concerned with merits.
Mr Twining rejected this and pointed to a number of documents he recently received from the APSC containing material he claimed were prejudicial and was not put to him.
I have however examined these documents and have formed the tentative view that in the main the substance of the adverse material was put to him before the termination decision.
I have considered the grounds and the supporting particulars set out in Mr Twining’s affidavit. I have not been able to form a view on all the issues raised: see Harris at 334 to 335 for a discussion of what obligations there are on the court to consider the merits.
Nevertheless it is clear to me that some grounds have very little chance of success. I refer particularly to ground 1 which concerns the timing within which a performance agreement was completed at the commencement of Mr Twining's employment with the APSC and ground 7 which alleges bad faith. Some grounds also appear to seek merits review under the guise of purported legal error. Some grounds may well be arguable.
Both parties accept that any hearing on the challenge to the probation decision would be futile Overturning that decision would serve no practical purpose.
Conclusions
In considering s.11 of the AD(JR) Act in Hunter Valley Developments, Wilcox J said at 310:
Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416).
Section 11(1)(c) gives me a discretion. Having regard to the matters that I have discussed above especially:
·the unsatisfactory explanation for the delay provided by Mr Twining
·the significant prejudice to the APSC
·the effect that a decision overturning the termination decision would have on other parties
·the futility of the challenge to the probation decision
this is not a case in my view in which an extension of time should be granted.
I therefore dismiss the application for extensions of time in relation to both the decisions of 5 November 2004 and 17 September 2004. I also dismiss the substantive application seeking judicial review of those two decisions.
I order that the applicant pay the respondent's costs as agreed or taxed.
I certify that the preceding sixty paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 10 December 2005
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