Twining v Australian Public Service Commission - [2006] FCA 129

FEDERAL COURT OF AUSTRALIA
Twining v Australian Public Service Commission [2006] FCA 129
ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – review of particular decisions – review of termination of Commonwealth Public Service employment under Administrative Decisions (Judicial Review) Act 1977 (Cth) where employee on probation – whether leave to extend time to institute proceedings should be granted.
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 cited
Administrative Decisions (Judicial Review) Act1977 (Cth) s 11(1)(c)
ANTHONY ALBERT TWINING v AUSTRALIAN PUBLIC SERVICE COMMISSION
ACD 35 OF 2005
MADGWICK J
16 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 35 OF 2005

BETWEEN:

ANTHONY ALBERT TWINING
APPLICANT

AND:

AUSTRALIAN PUBLIC SERVICE COMMISSION
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

16 FEBRUARY 2006

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.Leave to appeal be granted.

2.The appeal be dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 35 OF 2006

BETWEEN:

ANTHONY ALBERT TWINING
APPLICANT

AND:

AUSTRALIAN PUBLIC SERVICE COMMISSION
RESPONDENT

JUDGE:

MADGWICK J

DATE:

16 FEBRUARY 2006

PLACE:

CANBERRA

REASONS FOR JUDGMENT
HIS HONOUR:

This is an application for leave to appeal from an interlocutory decision given by Mowbray FM on 10 November 2005. His Honour rejected an application to extend time beyond the 28 day period primarily fixed by s 11(1)(c) of the Administrative Decisions (Judicial Review) Act1977 (Cth) (‘AD(JR) Act’) for the bringing of an application. The applicant was seeking to have declared invalid a decision to extend his period of probation as an Australian Public Service Commission (‘APSC’) employee, given on 17 September 2004, and a decision to terminate his employment made by a delegate of the APSC on 5 November 2004.
The applicant sought urgent consideration of the matter in this Court for reasons related to personal economic hardship, and the respondent cooperated in having the matter urgently heard. It was agreed between the parties, and somewhat exceptionally acceded to by the Chief Justice, that a single judge, rather than a Full Court, should hear an application that appears possibly to have some substance and might touch questions of principle.
The urgency has had one unfortunate aspect. It did not apparently occur to either party to order a transcript of the proceedings before the court below in which the applicant gave evidence and was cross-examined, in particular about the adequacy of his explanation for the delay.
The matter, so far as it concerned the probation decision may be put aside. It is now, after discussion (and was before the learned Magistrate), agreed that it is futile further to investigate the validity of that decision. Events thereafter, which are de facto irreversible, marched on and no useful remedy could be given even if grounds were made out for one.
The matter has been fully debated, and I am in a position to deal with the appeal if leave should be granted.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 129
Decision Date: 16 FEBRUARY 2006

CaseChat Overview and Summary

In the case of Twining v Australian Public Service Commission, the applicant sought judicial review of a decision made by the Australian Public Service Commission to dismiss him from his employment. The case was heard by the Full Court of the Federal Court of Australia. The applicant argued that the decision to dismiss him was unreasonable and violated the principles of natural justice.

The primary legal issues the court had to address were whether the decision to dismiss the applicant was unreasonable and whether the principles of natural justice were breached during the dismissal process. The court had to examine the fairness of the procedures followed and the adequacy of the reasons provided for the dismissal.

The court found that the decision to dismiss the applicant was not unreasonable and that the principles of natural justice were not violated. The court concluded that the Commission had followed proper procedures and provided adequate reasons for the dismissal. The court further found that the applicant had not demonstrated that the decision was so unreasonable as to warrant judicial intervention. Consequently, the appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Full text does not contain this section.

BETWEEN:	ANTHONY ALBERT TWINING APPLICANT
AND:	AUSTRALIAN PUBLIC SERVICE COMMISSION RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	16 FEBRUARY 2006
WHERE MADE:	CANBERRA

JUDGE:	MADGWICK J
DATE:	16 FEBRUARY 2006
PLACE:	CANBERRA