Walworth v Merit Protection Commission and Anor (No.2)
[2007] FMCA 530
•13 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALWORTH v MERIT PROTECTION COMMISSION & ANOR (No.2) | [2007] FMCA 530 |
| ADMINISTRATIVE LAW – Orders to be made – decisions to be set aside – whether matter should be remitted for reconsideration – whether declarations or orders under s.16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 should be made – costs of self-represented litigant. |
| Administrative Decisions (Judicial Review) Act !977 (Cth), s.16 Public Service Regulations |
| Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 Cachia v Hanes (1994) 179 CLR 403 Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528 Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 Walworth v Merit Protection Commissioner [2007] FMCA 24 Wattmaster Alco Pty Limited v Button (1986) 70 ALR 330 |
| Applicant: | BRIAN WALWORTH |
| First Respondent: | MERIT PROTECTION COMMISSION |
| Second Respondent: | COMMISSIONER OF TAXATION |
| File Number: | SYG 3532 of 2005 |
| Judgment of: | Barnes FM |
| Date of Last Submission: | 28 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the word “consent” be deleted from Order 1 made on 23 February 2007.
That the determination of the Second Respondent dated 10 May 2005 be set aside with effect from the date it was made.
That the decision of the First Respondent dated 11 November 2005 be set aside with effect from the date it was made.
That the decision of the Second Respondent dated 21 November 2005 be set aside with effect from the date it was made.
That the matter be remitted to the First Respondent for reconsideration according to law.
That the Second Respondent pay the Applicant’s costs in the sum of $806.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1781 of 2005
| BRIAN WALWORTH |
Applicant
And
| MERIT PROTECTION COMMISSION |
First Respondent
| COMMISSIONER OF TAXATION |
Second Respondent
REASONS FOR JUDGMENT
This judgment arises out of proceedings in which the applicant sought review of decisions made by the Commissioner of Taxation and the Merit Protection Commissioner in relation to whether he breached the Australian Public Service Code of Conduct. For reasons given on
23 February 2007 in Brian Walworth v Merit Protection Commissioner & Anor [2007] FMCA 24, I indicated that each of the decisions in issue: a determination by a sub-delegate of the Commissioner of Taxation of 10 May 2005 that the applicant breached the Australian Public Service Code of Conduct (‘the McMaster determination’); a decision of the Merit Protection Commissioner of 11 November 2005 to recommend to the Commissioner of Taxation that the determination of 10 May 2005 be affirmed (‘the MPC decision’), and a decision of the Commissioner of Taxation of 21 November 2005 to affirm the McMaster determination (the Diment decision), should be set aside.
It had been foreshadowed that the applicant and the second respondent would seek the opportunity to address the Court in relation to orders to be made to put into effect findings made in my decision. Accordingly I ordered that the parties jointly file consent orders to give effect to the reasons for judgment within 21 days, or in the absence of agreement that each party file and serve a draft of the orders sought by that party together with written submissions within 30 days. The parties did not file consent orders, but each of the applicant and the second respondent has now filed written submissions addressing the orders sought. The first respondent submitted to the jurisdiction of the Court in these proceedings save as to costs and made no submissions as to orders.
First, the parties agree that the order for the joint filing of “consent orders” should be replaced by a differently worded order, omitting the reference to the word “consent”. Deletion of the word “consent” from the order made on 23 February 2007 would more accurately reflect the intention of the requirement that if the parties agreed they would jointly file orders to give effect to the reasons. Despite the fact that the issue is now partly academic, as no form of orders was agreed upon and filed, it is appropriate that the Court’s orders reflect the true position of the parties and the fact that the second respondent did not “consent” to the granting of any relief or seek the making of any order which had the effect of granting relief to the applicant, but accepted that certain relief was necessary or appropriate to give effect to the conclusions set out in the reasons for decision published on 23 February 2007. Accordingly the order made on 23 February 2007 should be varied by deletion of the word “consent” (see s.16(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act)).
Beyond this there is agreement that certain orders are necessary to give effect to the reasons, but the parties differ as to whether certain other orders ought to be made by the Court under s.16(1) of the ADJR Act which is as follows:
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
As the second respondent’s submissions do not contain a draft of orders to give effect to the reasons, I have proceeded on the basis that where there is agreement as to the substance of an order it should be in the terms proposed by the applicant.
Setting aside decisions
First, there is agreement that in order to give effect to the reasons, each of the McMaster determination, the MPC decision and the Diment decision (as each is described in the judgment of 23 February 2007) should be set aside under s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977.
The applicant seeks orders that each of those decisions should be set aside from the date on which it was made. The Commissioner for Taxation does not object to the insertion of such words. As submitted by the applicant, setting aside such decisions with effect from their respective dates is consistent with the principle that the Court must select the date which would best do justice between the parties and any other affected persons (see Wattmaster Alco Pty Limited v Button (1986) 70 ALR 330). I also note in that respect that in Nguyen v MIMA (2001) 112 FCR 19 at [18] Sackville J was of the view that a decision made in contravention of the rules of natural justice (such as the McMaster determination) should ordinarily be set aside from the date on which it was made. It has not been suggested that there are factors pointing to a different date as appropriate.
This approach is also consistent with the acknowledgment for the Commissioner of Taxation that, as the decisions under review are to be set aside, the consequential sanctions for breach of the APS Code of Conduct that were imposed on the applicant by the Commissioner cannot stand.
The McMaster determination
As indicated there is agreement that in order to give effect to my reasons the McMaster determination of 10 May 2005 that the applicant breached the APS Code of Conduct should be set aside. This should be from the date on which the decision was made.
Initially the applicant had sought an order in these proceedings directing the Commissioner for Taxation to refrain from further enquiring into or determining whether the applicant breached the APS Code of Conduct. What the applicant now seeks instead is an order under s.16(1)(d) of the ADJR Act directing the Merit Protection Commissioner to recommend to the Commissioner of Taxation that the Commissioner of Taxation substitute for the McMaster determination a determination that the charge that the applicant breached the APS Code of Conduct be dismissed. That proposal is discussed further below in relation to the MPC decision.
The submissions for the applicant in relation to the McMaster determination proceeded on the basis that the second respondent was not seeking a remittal to the Commissioner of Taxation for reconsideration of the original decision as to whether the applicant breached the Code of Conduct. No such remittal is sought by the applicant.
In written submissions however, counsel for the second respondent clarified that the original omission to seek such an order had been based on the understanding that with the McMaster determination set aside on the basis of an error recognised as going to jurisdiction, the obligation to deal with the complaint against the applicant in accordance with the ATO procedures would be unperformed. It was contemplated that in such circumstances the Commissioner of Taxation would be required by statute to take some action in accordance with the ATO procedures and the Public Service Act 1999 (Cth) in response to that complaint (reference being made to SZEPZ v MIMA [2006] FCAFC 107 at [38] – [39]) so that remittal by the Court would be unnecessary and arguably redundant.
However, for the sake of clarity, the Commissioner for Taxation now seeks that the orders of the Court should include an order remitting the matter to the Commissioner for Taxation for further consideration according to law under s.16(1)(b) of the ADJR Act. It was submitted that this was appropriate because there was no basis for the Court to make orders which would have the effect of foreclosing further action on the complaint against the applicant, as such orders would go beyond the Court’s proper function of determining the issues as to rights and liabilities raised in the proceedings before it (see MIMA v Thiyagarajah (2000) 199 CLR 343, 361 – 362 [46] – [48]). It was also said that there was no barrier to remittal as the Commissioner for Taxation was not in the position of a Tribunal deciding matters inter partes and the so-called Hardiman principles (see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13) had no application. It was submitted that any possible difficulty in identifying an appropriate officer to investigate and determine whether the applicant breached the Code of Conduct would be a matter for resolution, in the first instance at least, by the Commissioner and his officers.
However, I am not persuaded that it is necessary for the sake of “clarity” or appropriate to make an order remitting the matter to the Commissioner for Taxation for reconsideration of the initial complaint against the applicant.
The consideration of a suspected breach of the APS Code of Conduct is a matter left to agency procedures (in this case Australian Taxation Office (ATO) Procedures under s.15(3) Public Service Act). Importantly, those procedures state that not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. Under paragraph 1.13 of the ATO Procedures a delegate of the Commissioner has a number of options where there has been a report of a suspected breach of the Code of Conduct. This can be distinguished from the position of a Tribunal required to conduct a review in certain circumstances under the Migration Act 1958 (Cth) considered in SZEPZ.
Remittal to the Commissioner for redetermination is neither necessary nor appropriate given that there is no statutory requirement that a suspected breach of the APS Code of Conduct be dealt with by way of a determination. (Also see Chapter 5, para 5.1 of the Public Service Commissioner’s Directions).
The applicant raised a number of concerns relevant to the possibility of remittal to the Commissioner of Taxation for further determination either by the same or by a different delegate or sub-delegate. In the circumstances it is not necessary for me to address such concerns further.
Insofar as the applicant posited a number of difficulties that would face the Commissioner of Taxation if he sought, either through the previous delegate and sub-delegate or some other delegate, to redetermine whether there was a breach of the Code of Conduct, as the Commissioner submitted, these matters would be matters for resolution, in the first instance at least, by the Commissioner of Taxation and his officers.
The MPC decision
Again, there is agreement that to give effect to the reasons the MPC decision ought to be set aside. This should be done from the date on which it was made.
The second respondent suggested that for the sake of “clarity” there should be an order remitting the matter to the MPC for redetermination according to law. It was submitted that the fact that the “APS action” which the MPC was called upon to review was and is devoid of legal effect because the McMaster decision is to be set aside, did not mean that the MPC lacked jurisdiction or a duty to deal with the application for review that was made to it by the applicant. It was submitted that as that jurisdiction had not been validly exercised, the MPC remained under an obligation to deal with the application.
The respondent submits however that what the MPC does with the review of the action on reconsideration is a matter for the MPC.
The applicant seeks an order that the MPC be directed to recommend to the Commissioner of Taxation that in lieu of the determination dated 10 May 2005 the Commissioner “makes a determination that the charge that the applicant breached the APS Code of Conduct as set out in the Notice of Suspected Breach dated 25 November 2004 be dismissed”.
The applicant did not seek an order that the matter be remitted to the MPC for redetermination. However it would seem that, as the applicant seeks an order directing the MPC to make a certain recommendation, there is a recognition that this would involve an exercise of the jurisdiction of the MPC to deal with the application that was made to it by the applicant. On this basis, given that the MPC’s jurisdiction has not been validly exercised, it seems that it is not disputed that the MPC is under an obligation to deal with the review application (albeit there is disagreement as to whether it should be given a direction in relation to the exercise of that jurisdiction). Hence it should be ordered that the matter be remitted to the MPC for reconsideration according to law.
However, I am not persuaded that it is appropriate to order that the MPC make a recommendation to the second respondent that the second respondent substitute for the McMaster determination, a determination that the charge that the applicant breached the APS Code of Conduct be dismissed.
The applicant submitted that if the MPC had not made an error of law in failing to address the applicant’s submission that the McMaster determination was vitiated by apprehended bias based on predetermination, the only course open to the MPC would have been to make a recommendation to the Commissioner under Regulation 5.28 of the Public Service Regulations that the Commissioner, acting under Regulation 5.32(2)(c), substitute for the McMaster determination a determination that the charge that the applicant breached the APS Code of Conduct be dismissed.
However Regulation 5.28 is not so limited. It provides (relevantly) that the MPC (or nominated person) must “review the action” and “make a recommendation to the Agency Head in writing about the action”. (Reg 5.28(3)(b) and 4(b)).
The MPC is not restricted as to the nature or form of any recommendation that it makes to the agency head about the action. This is not a case in which the powers of the review body are limited in such a way that it can be said that MPC has only one course open to it making a recommendation about the disposition of the complaint. Hence I am not persuaded that it is appropriate to make the order sought by the applicant in this respect (cf MIEA v Conyngham (1986) 11 FCR 528).
While it is the case that the Commissioner (as an Agency Head who has received a recommendation) may confirm the relevant APS action, vary the action or set aside the action and substitute a new action, the fact that the options available to the Agency Head under Regulation 5.32 are so limited is not such as to persuade me that the MPC can only make one of those three recommendations. This is particularly so where issues are raised about non-compliance with ATO Procedures and where an MPC recommendation may seek to address such issues. It is also relevant to note that reg 5.32(2) does not limit the employer powers of the Agency Head in relation to the action or the affected employee. For example, the agency head may take other appropriate action to rectify effects of the action or to restore the affected employee to the position in which the employee would have been if the action had not been taken.
In the alternative, the applicant sought orders declaring the McMaster determination and the MPC decision invalid. Section 16(1)(c) of the ADJR Act confers power on the court to make an order “declaring the rights of the parties in respect of any matter to which the decision relates”. The applicant pointed out that Burchett J made declarations of invalidity of decisions in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52. However, on appeal, in Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 401 Toohey J stated in Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 401:
“In the ordinary course, if the Court accepts that one of the grounds in s.5 or s.6 of the Act has been made good, it is enough to set aside the decision and remit the matter to the decision-maker for reconsideration. A declaration would then be superfluous unless the Court considered the particular circumstances of the case made the addition of declaratory relief appropriate”.
His Honour was addressing the position under the ADJR Act and did acknowledge that the position may be different at common law.
This is not a case in which there was an issue as to the validity of the regulations such as to warrant a declaration as to invalidity (cf Colpitts at 64 per Burchett J). The reasons for decision make clear the basis on which the McMaster and MPC decisions are to be set aside. In these circumstances a declaration as to invalidity would be superfluous. (See MIEA v Guo (1997) 191 CLR 559 at 578 – 579 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). I am not persuaded that the particular circumstances of this case make the addition of declaratory relief appropriate.
The Diment decision
As set out above the parties agree that to give effect to the reasons the Diment decision ought to be set aside. That order should take effect from the date of the decision.
No order is sought in relation to the Diment decision. Given that the McMaster decision and MPC decisions are to be set aside, there is no legal foundation for the making of the Diment decision. There is no suggestion that there is any reason to make any further order in respect of the Diment decision other than to set it aside.
Sanctions
There is a further issue as to whether the Court should make an order directing the Commissioner of Taxation to reverse sanctions imposed on the applicant. The applicant seeks an order under s.16(1)(d) of the ADJR Act in the following terms:
The Second Respondent is directed to repay to the Applicant the fine of $1,739.54, to withdraw the letter of reprimand issued to the Applicant on 19 July 2005, to remove from the Applicant’s personnel file any Official Conduct Record or other material related to the Second Respondent’s determination dated 10 May 2005, to pay the Applicant performance pay of 5% of the Applicant’s then base salary ($86,977) and increase the Applicant’s base pay to $93,741 effective 30 September 2005, to correspondingly increase the performance pay paid to the Applicant effective 30 September 2006 to 5% of the Applicant’s increased base pay, and to increase the Applicant’s base pay from $97,022 to $99,969 effective 30 September 2006.”
On 19 July 2005 (that is after the McMaster determination in relation to breach of the APS Code of Conduct and after the applicant had sought review by the MPC) he was notified by a delegate of the second respondent that the delegate had imposed a sanction under s.15(1) of the Public Service Act 1999 (Cth) of deduction from salary of a fine of $1,739.54 and a reprimand.
The decision to impose a sanction was not the subject of these proceedings. In written submissions of 25 May 2006 counsel for the second respondent conceded that while it was understood that a separate decision had been made, consequential upon the determination of breach imposing a fine on the applicant, “plainly” that decision could not stand if the applicant succeeded in these proceedings. However as the decision on sanction was not under challenge in these proceedings it was not considered further.
The second respondent’s confirmation of this concession in post-hearing written submissions refers to a previous acceptance by the Commissioner of Taxation that if the decisions under review are set aside, the sanctions that have been imposed on the applicant as a consequence of the Diment decision cannot stand, although in fact the sanction was imposed before the Diment decision. The imposition of the sanction was followed, on 1 November 2005, by a reconsideration of the applicant’s annual appraisal for 2004-2005 (which had recommended an increase in base pay and performance pay). The recommendation was revised to recommend that the applicant receive neither an increase in base pay or any performance pay.
It is the consequences of these decisions that the applicant asks the court to address in the proposed order pursuant to s.16(1)(d) of the ADJR Act.
In Park Oh Ho v MIEA (1989) 167 CLR 637 Mason CJ, Deane, Gaudron and McHugh JJ observed at 644-655:
The legislative purpose to be discerned in the conferral by s 16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is “necessary to do justice between the parties” (s 16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality. In particular, the phrase “any matter to which the decision relates” in s 16(1)(c) should be construed as encompassing any matter which is so related to, in the sense of connected with, the impugned decision that it is appropriate that it be dealt with by the grant of declaratory relief in judicial proceedings for the review of the propriety of that decision. In a case such as the present where the impugned decision is a deportation order which has been found to have been null and void ab initio, the lawfulness of a period of forced imprisonment which was based solely on the void order could, depending on the circumstances, be such a matter. If the applicant in such a case is still held in custody by persons under the control of the respondent decision-maker, an injunctive order that the respondent do whatever be necessary to procure the applicant's release could be properly considered as “necessary to do justice between the parties”. In that regard, it is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial “review” of administrative decisions and actions.
It is notable however that the power in s.16(1) arises on an application for an order of review “in respect of a decision”. In Park the respondent had maintained throughout the proceedings (in relation to a deportation order) that the appellant’s detention was lawful. It was in those circumstances that the Court found it appropriate to address the ‘lawfulness’ of the detention by making a declaratory order that the detention was unlawful under s.16(1)(c).
While the order sought in relation to sanctions is sought under s.16(1)(d), what the Court said in Park in relation to the legislative purpose of ss.16(1)(c) and (d) is in point. Their Honours recognised that such provisions are “to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is ‘necessary to do justice between the parties’ and which will avoid unnecessary re-litigation between the parties of those issues” (emphasis added).
The sanctions were not the subject of these proceedings. The order sought in relation to sanctions is not directed to the decisions that were in issue. It does not seek to compel a decision (on re-determination) of a particular kind (cf Bond Corp Holdings Pty Ltd v Australian Broadcasting Tribunal (no.2) (1988) 84 ALR 669 at 683 per Gummow J, and also see Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185).
In MIEA v Conyngham (1986) 11 FCR 528 (relied on by the applicant) what was in issue was a decision refusing the grant of temporary entry permits to Australia and a decision of a Disputes Committee not to recommend the grant of such permits. At first instance Wilcox J had ordered, inter alia, that sponsorship for the purposes of the issue of temporary entry permits be approved. The Full Court held that s.16(1)(d) of the ADJR Act did empower the Court, in an appropriate case, to order a decision-maker to decide a matter in a particular way. However as the Minister had a residual discretion as to what decision he should reach, the Court would not order him to grant temporary entry permits, but merely set aside the decision and ordered a re-determination according to law. The focus of the Court was on the question of whether the Court would direct that the power or duty in relation to the impugned decision be exercised or performed in a particular way (see Sheppard J at 536 and 538).
As the sanctions decision was not the subject of these proceedings I am not persuaded that it is appropriate that the Court make the order sought. Moreover, it is not clear, on the evidence that before the Court in these proceedings, that all the “consequences” which the applicant seeks to have the court address, can in fact be categorised as sanctions under s.15(1) of the Public Service Act 1999. The review of performance and base pay in fact appear to be separate administrative decisions.
Costs
The applicant seeks that the Commissioner of Taxation pay his costs. The Commissioner does not resist such an order, but submits that in accordance with ordinary principles, the applicant being self-represented should be limited to his out-of-pocket expenses and that freedom of information fees sought are not properly regarded as costs incurred in the proceedings.
The Court has power under Rule 21.02 of the Federal Magistrates Court Rules 2001 to set the amount of the costs. I consider that it is appropriate to do so in this case. (See Cachia v Hanes (1994) 179 CLR 403 as to the principles applicable to costs recoverable by a litigant in person such as the applicant).
The costs to be recovered by a self-represented litigant should, as with costs generally, be limited to expenses incurred in and incidental to the proceedings. It is appropriate that such order extend to out-of-pocket expenses necessarily and reasonably incurred in relation to the proceedings (see Cachia v Hanes at [19] – [20]).
The applicant seeks expenses consisting of filing fees (which should be recoverable) and application and processing fees in relation to freedom of information requests.
While it is clear (see ss.3 and 45 of the Federal Magistrates Act 1999) that this Court should act informally and use streamlined procedures, so that discovery is not allowed unless the Court declares it is appropriate and in the interests of the administration of justice (s.45(1)), nonetheless it is open to a litigant to seek discovery of documents of potential relevance to proceedings in an appropriate case (s.45(2)). Freedom of information application and processing fees are not out of pocket expenses necessarily and reasonably incurred in relation to these proceedings and should not be recoverable as costs in the proceedings.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 13 April 2007
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