Wedesweiller v Cole

[1983] FCA 91

Re: CRAIG ANTHONY WEDESWEILLER AND OTHERS
And: ROBERT WILLIAM COLE AND OTHERS (1983) 71 FLR 256
No. NSW G214 of 1982
Judicial Review - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Judicial review - extension of time - considerations to be taken into account - Administrative Decisions (Judicial Review) Act 1977, s.11.

Administrative Law - Decision - Review of - Application for extension of time of prescribed period for application to review - Whether extension of time should be granted - Matters to be taken into account - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11(1), 11(3) - Public Service Act 1922 (Cth), s. 32A(1).

HEADNOTE

The applicants, some 153 in number, are all public servants employed in the Commonwealth Department of Social Services. Decisions were made by the respondents, who were senior officers of a Commonwealth department, pursuant to s. 32A(1) of the Public Service Act 1922 (Cth) that the applicants not be paid salary from a certain date. These decisions were made in November 1981. The times for making applications for review of the decisions pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Act) expired on various days in December 1981. In November 1982 the applicants filed this application seeking an extension of time to institute proceedings under the Act for review of the decisions.

Held, that in all the circumstances of the case the applications for extension of time should be granted having regard to, inter alia, whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to the applicants and the prejudice which may be suffered by the particular Government department if the application is refused or granted respectively, and what the justice of the case requires.

Sophron v. The Nominal Defendant (1957) 96 C.L.R. 469, applied.

Duff v. Freijah (1982) 62 F.L.R. 280, not followed.

Esso Research and Engineering Co. v. Commissioner of Patents (1960) 102 C.L.R. 347; Doyle v. Chief of General Staff (1982) 71 F.L.R. 56; Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 69 F.L.R. 328; Lucic v. Nolan (1982) 45 A.L.R. 411; Becerra v. Fowell (unreported, Morling J., 18 February 1983, Federal Court of Australia), referred to.

HEARING

Sydney, 1983, April 21; May 24. #DATE 24:5:1983

APPLICATION.

Application by a large number of applicants seeking an extension of time within which to make application for review of decisions which were claimed to be decisions for the purposes of the Administrative Decisions (Judicial Review) Act 1977.

D. M. J. Bennett Q.C. and W. R. Haylen, for the applicants.

R. Burbidge Q.C. and P. Hastings, for the respondents.

Solicitors for the applicants: Geoffry Edwards & Co.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

E.F.F.

ORDER

1. The time within which the applicants may bring applications for review under the Administrative Decisions (Judicial Review) Act 1977 be extended up to and including 7 June, 1983.

2. The costs of the parties to these applications for extension of time be costs in the applications to be brought by the applicants for review.

3. In the event that such applications are not brought the applicants are to pay the respondents' costs. Orders accordingly.

JUDGE1

This is a proceeding in which a large number of applicants have joined, each seeking an extension of time in which to make application for review of decisions which they claim to be decisions for the purposes of the Administrative Decisions (Judicial Review Act 1977 ("the Act"). The applications are made pursuant to paragraph 11(1)(c) of the Act. Section 11, so far as it is material, is as follows:

"11.(1) An application to the Court for an order of review -

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

"(c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.

. . . . . . . .

(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after -

(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

. . . . . .

(iii) in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant."

The decisions, review of which will be sought if these applications are granted, were all made on various dates in November 1981. The subject application was filed on 23 November, 1982, in round terms one year after the decisions in question. It is common ground that the prescribed period for the purposes of paragraph 11(1)(a) of the Act was the period of 28 days provided for in sub-section (3) and that the applicable provisions of that sub-section were either paragraph (a) or paragraph (b)(iii). The times for making application for review pursuant to s.5 of the Act accordingly expired on various days in December 1981. The applications for extension of time were therefore made approximately 11 months after the times for lodging applications for review had expired.

No submission was made that I had no power to entertain the applications for extension of time because of a failure to lodge or make the applications for extension within the prescribed period of 28 days; cf. Esso Research and Engineering Co. v. Commissioner of Patents (1960) 102 C.L.R. 347 per Fullagar J. at p.351. The respondents did not make any such submission because of the decision of Northrop J. in Duff v. Freijah (1982) 43 A.L.R. 479; see particularly pp.481-483. The applicants are all public servants employed in the Department of Social Security. They number 153 in all. The decisions, review of which will be sought if the applications for extension of time succeed, are decisions purporting to have been made by a variety of more senior employees in the Department, each a delegate of the Public Service Board, to declare, pursuant to sub-section 32A(1) of the Public Service Act 1922 that the applicants not be paid salary from the time specified in the declarations.

The first three respondents are the members of the Public Service Board. The remaining respondents are the various delegates who signed the declarations which will be in question in the applications for review if they are permitted to be brought.

I pause to mention at this stage that in former times questions may have been raised by the court concerning the propriety of joining so many different applications in the one proceeding. But the respondents have taken no objection and the provisions of Order 6 Rule 2 are probably such as to enable the course taken to be followed. However, I express no concluded view and I mention that, although all the cases are of a similar kind, the detail of them is such as to reveal that there are factual differences and different circumstances in a variety of them. The matter not having been the subject of argument, I do not propose to say more of it.

The declarations which the applicants wish to challenge were made because of an alleged failure on the part of each applicant to comply with a lawful direction given by a person having authority to give it. Each of the directions was connected with the recording or notifying or taking steps to recover overpayments of social security benefits paid to pensioners and others pursuant to the Social Services Act 1947. For example, the direction said to have been given to the first applicant, Mr. Wedesweiller, was as follows, "To commence withholdings on, or to notify recoveries section or clients of, any overpayment where recovery action has not been initiated".

The reference to "clients" is puzzling. I do not know to what the expression refers. But that is not a material matter, at least in relation to the applications now under consideration.

The effect of a declaration made pursuant to s.32A of the Public Service Act is provided for in sub-section (3) of the section which is as follows:
"An officer or employee is not entitled to be paid salary in respect of any period in respect of which a declaration under sub-section (1) has effect, or is to be deemed to have had effect, in relation to him."

Apparently the making of the declarations in the instant cases led to the applicants not being paid their salaries for periods of about one month or a little longer. The stake of each applicant in the proceedings is, therefore, approximately one month's salary.

There have been a number of decisions by other judges of the Court dealing with the considerations which the Court should take into account in exercising the discretion which it has to extend time. These cases include Doyle v. Chief of General Staff (1982) 42 A.L.R. 283 (Fisher J.), Ralkon Agricultural Co. Pty. Limited v. Aboriginal Development Commission (1982) 43 A.L.R. 535 (Keely J.), Duff v. Freijah (supra), Lucic v. Nolan (unreported, 1 November 1982, Fitzgerald J.) and Becerra v. Fowell (unreported 18 February 1983, Morling J.). I have read the judgments in each of these cases. I am inclined to agree with Morling J. in Becerra's case (p.11) that differences are discernable in these various decisions as to the emphasis which should be given various matters in deciding whether or not an extension of time should be granted in a particular case. But I would respectfully suggest that this is not because of any fundamental disagreement amongst judges as to the approach which should be taken, but more to the need for each judge to address himself to the particular circumstances of the case before him. I do not wish to add to what has been said except to say that there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved. In this respect I refer to what was said by Fitzgerald J. in Lucic v. Nolan (p.13). The discretion is vested in the Court in completely unrestricted terms and no indication is given of the matter which the Court is to consider. The discretion is therefore a very wide one and I would not wish to say more in case my doing so may have the effect of circumscribing in another case what the facts of that case require.

There is only one matter in the earlier judgments which I wish to mention expressly. In Duff v. Freijah Northrop J. said (43 A.L.R. at p.485), "It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution". That is not, with great respect, a proposition which I would accept as having general application. It will be so in some cases, but it may not be so in others. There can be no general rule. In this regard I refer to what was said by the High Court in Sophron v. The Nominal Defendant (1957) 96 C.L.R. 469 with regard to a view of the prothonotary of the Supreme Court of New South Wales to the contrary of that propounded by Northrop J. The Court said (pp. 474-475):
"When the application was before the prothonotary he appears to have adopted the view that a fixed general rule existed that when the failure to give notice within time could not be ascribed to the fault of the claimant but was attributable entirely to fault on the part of his solicitor, that necessarily amounted to sufficient cause within the meaning of s.30(2)(b)(ii). Such a view is opposed to the principles laid down by Walsh J. in Martin v. Nominal Defendant ((1954) 74 W.N.(N.S.W.) 121) and it gained no support in the Full Court in the present case. No one, of course, doubts that such a consideration as the blamelessness of the claimant and the responsibility of his solicitor is very material. But every case must be determined on its own facts. Fixed formulae cannot be substituted for the wide words of the sub-section, . . . ."

It is now appropriate to come to the particular facts of this case. It should first be mentioned that there are pending in the list of this Court a number of applications for judicial review in which issues similar to those which will arise if the applications here made for extension of time are granted. The applications for review to which I refer are made in matters G 59 to G 65 of 1982 inclusive. In all there are approximately a further 190 employees in the Department of Social Security involved in these other cases. In all but one of them the question is the validity of declarations made pursuant to s.32A of the Public Service Act. In the remaining case the provisions of the Commonwealth Employees (Employment Provisions) Act 1977 are in question. The applications G 59 to G 65 of 1982 were filed early in 1982. Some may have been filed out of time but orders by consent have been made extending the time as necessary. Those applications have been the subject of extensive directions hearings before judges of this Court and were fixed for hearing on 20 April last. On that day it was announced that there were good prospects of the matters being settled "industrially" and the applications were stood over generally. Counsel for the parties asked if some of the time set aside for the hearing of the other applications could be made available to deal with these applications for extension of time with the result that they were heard on 21 April last. It seems likely, although I have not been so informed, that the respondents and the industrial organisation to which all applicants belong would wish to know whether these applications for extension of time will be granted before settlement negotiations in the other applications are concluded.

The applications for extension of time are supported by affidavits of Mr. Pasfield who is the applicants' solicitor. No affidavit has been filed by any applicant. Mr. Pasfield, in his evidence, referred to the dispute earlier mentioned and to the standing down or suspension of employees in the Department of Social Security. He referred in detail to the extensive preparation needed before any applications could be filed and to the history of the applications G 59 to G 65 in this Court. Particular reference was made to attempts to shorten the hearing time necessary to dispose of all the cases by attempts to select one or more as a test case or test cases. One, so selected, came on for hearing and succeeded by consent. It was of no assistance in indicating what the outcome of any other applicant's case should be. Despite the attempts which were made, it was clear to me when I conducted a directions hearing a week or so before 20 April that no selection had been made and that great difficulty was being experienced even then by the parties and their legal representatives in trying to shorten the hearing. Mr. Pasfield deposed to the extensive preparation that was necessary to prepare the other applications for hearing and of the time occupied in that task.

More relevantly to the present application he said that during 1982 numerous other employees in a similar situation to those whose applications were to be heard on 21 April had sought advice as to the legality of their being stood down or suspended. He added, "Many of these people have lived and worked in other parts of New South Wales, such as Wollongong and Newcastle, as well as other country areas. Receiving instructions from these people has been a lengthy and time consuming task, which has only recently been completed". Mr. Pasfield's affidavit had been sworn on 23 November, 1982. He said that the cases which were out of time raised no new issue of fact or law which was not raised by the cases presently before the Court, that is the cases involved in applications G 59 to G 65. Mr. Pasfield suggested that in the circumstances no prejudice would be caused the respondents by granting the extension of time which was sought.

The respondents contest that statement. It is common ground that the respondents had no notice of the claims which the applicants wish to bring if their applications for extension of time are successful until they were served with the application now under consideration. The period involved is a period of approximately 15 months, the decisions review of which is sought having been made in November 1981. On behalf of the respondents Mr. Cassin, who is a member of the Crown Solicitor's staff, has deposed to prejudice which the respondents will suffer if time is extended. The prejudice is of two distinct kinds. Firstly it is said that the re-awakening of the matter will have an adverse effect on good industrial relations which presently exist in the department. Secondly it is said that in many cases relevant evidence may have been lost to the respondents because various officers in the department now either have no recollection of the events in question or have a recollection of them which is much diminised because of the lapse of time. Although I am prepared to take into account what Mr. Cassin says about a possible effect on good industrial relationships within the department I am not persuaded that this is a matter of substantial weight. I find it difficult to think that such relationships could be affected adversely, at least to any great extent, if employees were permitted to pursue claims for unpaid salary in circumstances where they considered that payment had been wrongly withheld.

The other head of prejudice raised by Mr. Cassin is of a much more serious kind. I do not recount the detail of his evidence in this regard but it does tend to establish that the incidents in question have faded from the memories of those concerned, or at least a large number of them. On the other hand I must bear in mind that there are departmental records available from which potential witnesses may refresh their recollections and that it is human experience that many persons called upon to recall events which occurred in the past are able to remember a good deal if their minds are applied to the problem properly. Mr. Cassin does not suggest that he has attempted to take statements from any of the persons in question. Once that exercise is commenced it may be found that the witnesses, particularly with the aid of documents which are available, will remember sufficient of the events to enable the respondents' case to be properly put. After all evidence is given in many jurisdictions of events which took place many years before. The frailty of human recollection is well known but, generally speaking, reliable evidence of events long since past is given daily in the courts of this country.

It is true that a person who has been involved in an incident will often known either at the time it happens or very soon afterwards that his evidence will be required. This tends to keep the event close to the surface of his mind more so than if he is asked more than twelve months after it occurred to recollect it for the first time.

I have taken all the matters mentioned by Mr. Cassin into account and endeavoured to weigh them as best I can.

Ordinarily one might regard an application for extension of time made almost twelve months after the expiry of the prescribed time as being too late, particularly where the prescribed period is as short as 28 days. That is the view I think I would have had in relation to these applications were it not for the fact that there are pending for hearing in the Court's list approximately 190 similar applications all arising out of similar incidents to those complained of by these applicants. It is that circumstance which, according to the submission of senior counsel, makes this case different from others. Furthermore, as a matter of fairness amongst employees in similar situations it is only right, in his submission, that these applicants be allowed to proceed. He further submitted that no real prejudice was shown by the respondents, not forgetting the difficulties they may have in obtaining evidence as mentioned by Mr. Cassin. Certainly there was not here any administrative reason or reason not associated with the direct interests of the parties which ought to dissuade me from granting the extension which is sought.

Senior counsel for the respondents submitted that the period of 11 months was far too long. He said that there seemed no reason why there could not have been at least some general and earlier warning from the applicants' solicitors that these applications were in train. So far as they were concerned the matter was past and was better left where it was. He also drew attention to the fact that there was no direct evidence from any applicant explaining the delay or deposing to facts from which one could make a judgment as to the possibility or probability of a successful challenge to the decisions which are sought to be reviewed.

I have weighed these various considerations with some anxiety. I confess to not having found the matter easy of resolution but in all the circumstances I have reached the conclusion that on balance the applications should be granted. The time for bringing the applications will be extended up to and including 7 June. The costs of the parties to these applications are to be costs in the substantive applications to be brought by the applicants. In the event that such applications are not brought, the applicants are to pay the respondents' costs of these applications.

Before concluding this judgment I would mention that during the argument I expressed concern about the selection of the procedure to determine the applicants' claims. Notwithstanding what was said to me by senior counsel for the applicants, I remain unconvinced that the claims could not have been brought in courts of general jurisdiction or in an industrial magistrate's court. If claims as numerous as these are to be brought in this Court in applications for judicial review, the Court will soon become overburdened. Particularly will that be so if, as appears to be the case, the cases do not have sufficient in common to enable one or a group of them to be made a test case or test cases. The remedy may be in the exercise of a discretion pursuant to Order 6 Rule 2 so as to compel the bringing of cases or groups of similar cases in separate applications. That would have the effect of the applicants having to pay the usual filing fee of $100 in respect of each application or group of applications. I mention this because I was informed by senior counsel for the applicants that one reason for joining so many applicants in the one application was to avoid having to pay more than one filing fee.

I express no concluded view on any of these matters. All I say is that if this procedure is resorted to in any substantial way by industrial organisations, it will give rise to very serious problems for the administration of the Court's list.