ee nt et CaANCcr dow - Administcovtive Appeel Tocra - x epplicrtioa Jecision until deterniratian Aoinitirctive Ceoessions (Jture Pqaancek py Court rroers Wie af aceisi¢en Greer svspending - principles maications Ack 1977 LYLE JOHN PoerToa Ve outLuitu 5.45 Pig T m CUCFILT and otners (No. VG67 of 1951} YEeli J. 30 April 1981 Melbourne Fiscipiirary IN THE FEDLEAL CCURT OF AUSTRALIA ) . ) VICICRIA DISTRICT REGISTRY ) No. VC67 of 18h] ) ) . GENERAL DIVISION BPTWECN: LYLE JOPN PCRETIS Applicert AND: WILLT™ KENGLTU \ DESUOUNG JL BUSTIALIA Ge LoCCithiC? eI tig Taney LOVELG COMMATSSTICN Resporacnts JUDGE MAKING ORDER: KEELY J. DATE OF ORIER: 30 April 1981 WHERE NACE: Melbourne THE COURT ORDERS THAT: 1. The application for an order suspending the opcraticn of the decision of the Disciplinary Appeal Board, given on 12 vierch 1961, until tne hearing and determinaticn of the matter pe dismissed, 2. The fourth respondent snall file an@ serve upen the applicant's solicitors within 14 days of the date horecof a concise statement setting out precisely what contentions of both fact ard lew it intends to advance at the hearing. 3. The parties serve any netices to adnit facts or Jecurerts within 7 ceys atter the date hercof. 2. 4. Any such notices be repliec to within 7 days «fFter scrvice therecf. 5. The applicant file and serve ery further effidavits to be . filed on his behalf within 14 deys after the time lirited in (3) hereoil, or, if eny such notice to admit 31s served by ham, within 14 days after receipt of the reply thereto. 6. The respondents file and serve any effidavits to be filed on their behalf within 10 days after the time limited in (5) hereof or of any earlier advice from the applicant that he dacs not intend to file any such further affid-vits. 7. The applicant file any effidavits in reply thereco tu oe filed on his behalf within 7 days after the kime limited in (6) hereof. 8. The matter be fixed for heoring commencing -t W.lo o.m. on Wednesday, 17 June 1981. 9. The costs of this hearing chall be costs tn the cruse,. 10. Any party be at liberty to apply further herein. ert en taetnatell tan iteasbaanet aati taeda anentontelienndtansiattatatetemniiaelchealieel ded mane wee . - oe - =. ee ae ee eee ee -- - - - - - - eee eee ee wee ee ~ a a) In THE FEDLRAL CCUrT OF AUSTRALIA ) . ) VICTORIA DISTRICY REGISTRY ) No. VG67 of 1931 ) ; GENERAL DIVISION ) . BETWEEN: LYLE JOH) PERKINS Applicant AND: WIBLETAi JOE" CUTHILL, RENUETH VINCE TY LOPCnGan, AUST? LIAN TELECO LUNI CArrone Coils Regpondcents REASONS FCP JUDGHERT 30 April 1981] KEELY J. Lyle John Pcrkins (the epplicant) has applied to the court under the Administrative Decisions (Tusicial Review) %ct 1977 (the Act) for an order of review in respect of a €ecision of the first, second and third responuents, who are the chairman and members of a Disciplinary Appeal Rosord (the board) constituted under s.63 of the Teleconnuniccticns Act 1975. The board's decision described the appeal by the applicant asc being an appeol ""ageinst a punishment inflicted upon aim by John Patrick Ahern", a delegate of tne fourth respondent (the commission). nc board "dismissed the appeal 2nd confirmed the penalty imposcd by the Delegate". ARS a OE TS Ie RTT Ce i! --e- - eee woe eee ee we wee oe opp vets amore 2 ee wee ee - - nr ee ne ne > . Tne board's decision, mace under s.62(5) of the Telecormunications Act 1975, was given on 12 March 1981. The . Gelegate had decided, on 9 December 1980, that the applicint should "be transferred to a positicn cf a lower claccificaticn, namely, Senior Technical Officer Crade 1 $17,003 - $17,852, Design Standards Branch, Buildings Sub-Divicion, Serviccs Division, Engineering Depertment, with effect from 153th December, 1980" and determinca that the applicent should "be paid at the maximum salary of $17,852". Immediately before the delegate's decision the applicant's selary, as a Senior Technical Cfficer Grade 3, was $20,994 per annum. The preecnt hearing is of an 2pplic:tion for CGireclicons and for an "oraer suspending tune operction of the decision until the hearing and determinetion of this epplication or further order", Section 15(1)(a) of the Act reads as follows: "15. (1) The making of an applicetion to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent tne taking of action to implement the decision but - (a) the Court or a Judge moy, by order, on such conditicns (if any) as 1t or he thinks fit, suspend the operation of the decision; ..." Mr Callaway of counsel, on tehrlf of the applicant, submitted that in considering such an aprlication the court snould apply the ovrincinles applicable to the grant cf interlocutory injunctions. Neither he nor tr Auttner, wno ee ee ed eos ee ~ oe ~ + ~- Mee ee - ee =~ we ee re er - - ne ett athat appeared for the respondents (the first, second <¢na third respondents making no submissions) referred me to any decision as to s.15(1)(2) of the Act which only came into operation on 1 . October 1980. The only decisicn on the section cf which I am aware iS that of Franki J. in Capello v. iinister for Immigcetion and Cthnic Affairs (1980) 2 Admiristrative Lew Decisions 1014. His Honour there was "not setisfiead tniet the applicant has presented any arguable case" and refused to make "any turther order under 5.15 of the Act" but the reasons [er judgment in my view do not suggest that it is sufficient for an applicant to demonstrate an arguable case. I accept Mr Huttner's submissions thet, in exercising its Giseret.ion under s.15(1)(@) of the Act the court shoul? pot apply the principles epplicable to the grant of intcrlocutory tnjunctions. On the other nend, having considered the cases to which he referred, I do not consider that an applicent urder s.15(1)(a) must show "special circumstences" (Scarborovch v. Lew's Junction Stores Pty Limited 1963 V.R. 129 at p.130 rer Adam J.) or "exceptional circumstances" (Klinker Fnittinrg 'tills Pty Ltd v. L'Union Fire, Accicent and Generel Insurance Co. bts (1937) 43 A.L.R. 298 per Lowe J.) or "special re.sons" or something "exceptionai (Amoco Australia Pty Ltc v. Pocca "ros ia) Motor Engincering Co. Pty Ltd (1972) 7 S.A.S.R. 268 at p.325- per Wells J.). Those decisions \.ere under Rules of the Suprcime Courts of Victoria and South Australia, which contained the werds "An appeal shall not operate as a stay of executien or of ET ARNE AER en ee me = eee a te eee S ere ce me mes oe -- - ame -- os - = - - =| ane Cher gee oe ne me te er eee ee Le eee 4. proceedings ... except so far as the Court or a Juaqe may so order vee Ir each of those cesee the Supreme Court decidod that the provision wes so worded 2s to previde e oencrel rule (1.c. no stey) and then permit an exception from that general rulc and that it was necessary for the anplicent to saow "exceptional circumstances" or ""cpecicl circumetenecs" or "special reasons" in order to justify a departere from tne genera] rule. I accept tic Collaway's submission thet s.15(1)(#) of the Act, unlike the provision in the Supreme Court Rules, @oes not provice a general rule and then vermit an excenticn. Tt does not use the word "except" which, arc Mr Callaw2y pointed out, tends to tend siself to a constructson tnet en apeliccnr. as required to show "exceptional" circumstances. In my opinicn ¢.15(1)(a) reguires an applicant to satisfy the court thet reasons or circumstances exist which make it just thot the ccurt should make the order sought but it 1S not necessary for the applicent to show that those reasons or circumstances are in any sense "Specisl" cr "exceptional". Of course the Giscretion must be exercised judicially and not arbitrarily. Mr Callaway, in submitting that reasons exist why tne discretion should be exerciseé in favour of thc epplicert, contended that: (a) there wore manifest errors on the face of th? decision; NAAT ae cee en 2 En ays mpLaIE reo mm ee gee yee we vem wee me ee --—e ae oe ee -- ---- 5. (b) there is a relatively high probability thet the Cecisicn will be quashed by the court aftcr th. fvuli hearing of the matter; , ' > (c) 6.61(2)(a) of the Telecommunications Act 1975 demon- strates a legislative intention that a decision mede under s.61(1)(a) of that Act transferring =n officer to another position should not take effect until] on appoc) against that decision to a Disciplinary Apreel Borrd has been dealt with by that board. Further, that where "there 1S a strong probability that the decision of tne (board) will be quashed, the applicant will be deprived of the protection which it 1s the policy of sub-section 61(2) to give nim urless be could cbtain interim rojicf", i.c. from the court. As to the last contention (in (c) above) Mr HButtner relied upon s.61(2)(a) which reads: "A decision ... does not take effect - (a) 1f the officer appeals against the decision unless ... a Disciplinary Appeal Board confirms ... the decision". I accept his submission that those words refer to the occurrence of an event, namely, the fact of a heerd confirming a decision, and are "not concerned with whether the (board) has correctly done so or hes erred in law". Accordingly, I am unable to come to the conclusion tnat the legislative intention is that a decision under s.61(1) shovld not take effect where the board's decision 1s under appeel end there is a strong probability thet tne decision will be quashed. AR ene an ee a gman A re ee ree - ase eee ~- - ~- -- we MET an oe if Arm Neet ee we ee eee ee weet eee ee -- ee ree e ed Although I have not accepted sir Callaway's svcmission on this espect, it does not fcllow that, in considering the application under s.15(1)(e@) of the ?et, the court shoulé treat as irrelevant to the exercise of its discretion the terms of the decision of the board. In the course of his argument 'Vr Callaway referred to a hypotactical case cf a decision by a board which was, on 1ts face, demonstrobly not capable of being supported at all as an exercise by the board of its function under the Act. In my view in such a case the terms ot tne board's decision would be relevent to tne exercise of the court's discretion. Mc Callavay's contentions, to which I have referred in (a) and (b) above, that there were menifest errors on the frce of the decision of the board and that there 1s a relatively high probability thet the decision will ultimately be quashed by the court, f2ll short of the hypothetical case of a decisicn whi-h was on its face demonstrably not capeble of being supported as an exercise by the board of its function. I do not consicer that his contentions (a) and (b) - even if they were establisned - would on their own constitute sufficient reason for the court to exercise its discretion under s.15(1l1)(a) of the Act. It may be that in e particular case they weuld, wnen added to other facts, be sufficient. In the present matter reference was made to the length of Pe ITT AER ER mney A me ren Cee ee -- ce me me - en Om ey we ee Oe ae ae wee ee eee NE ee Tee © ney Me Rete wenn 7. time which may elapse before the court decides the aprlication to set aside the decision of tne board. Theat aspect mighe assist the applicant 1f the period of time were likely to be long - having regard to the fact that, during tnat time, the applicant 1s performing different duties and, instead of bring paid at his previous salary of $26,994, 1s being paid at en annual salary of $17,852 - at which lower rete he has been paid since 12 Narch 1981. I consider that steps should be taken to give the applicant a speedy hearing and decision. In all the circumstances I do not conside: tnat the court snould, on the Material in this case, exercise its discretion in favour of Making en order suspending the operation of the decision of tre board pending the hearing and determination of the application for a review. I considered the alternative course, discucs3ed during the hearing, of making en order suspending the overation of the board's decision on conditior that the pplicent give an undertaking to "pay to any party adversely affected by the suspension such compensation (1f£ #ny) as the Court thinks just in such mannner as the Court directs" but decided against thet course 1n this case, I consider that the costs of the present nearing should be costs 1n tne cause. I Shall also grant liberty to any varty to apply. I should perhaps refer to the fact that I was informed tnat the applicant was working as a Senior Technical we a Be eee ene or we ee ee ee ee ee we ee ee eee ee 8. Officer Grade 1 from 9 December 1980 until 12 March 19873 but he was paid by the commission at the higher salary (1.¢. his previous salary) in respect of that period pendinae the hearina and decision by the boerd on 12 March 1981. Section 61(2) on ats face provides that the "decision ... does not take cffect" and it would seem that that decision under $.$1(1) wos a decision (a) to transfer the applicant to a different positicn from that previously held by him, being a position with a lower classification; and {(b) to determine the salory to be paid to the applicant. It may be that the applicant 'so worked by consent er by reason of the operation of scmc other section of the Act. Mr Callaway and Mr Huttner were in agreement as io the directions to be given. Those directions contemplated a possible period of thirteen weeks before the Registrar would be asked to fix a date for triel but, efter eiscussion during the hearing, they said it was likely that the matter could be ready for hearing within approximately s1x weeks. In the circumstances 1 have decided to alter the suggested times and to fix the date for hearing for 10.15 a.m. on Wednesday, 17 June 1981 in Melbourne. Although it was not discussed, I heve also decided, with a view to definirg the issues before the hesring, to direct that the commission shall within fourteen days serve upon the applicant's solicitor end file in the court a concise statement setting out precisely what contentions cf both fret and law 1t intends to advance at the hearing. Such a stetement RETR EEE seer one ernie Sn neers eee ee ee -- -- =e - nie we as ee meee Hee an Ale tn were shall contention woicn is open to it on any additional material then not prevent it from advancing at the heering any before the court. (1) (2) (3) (4) (5) (6) (7) The other directicns ere as follows: that the peortiecs serve any notices to edmit facts or documents within seven deys after the date hereof; that any such notices be replied to within seven acys after service thereof; that the applicant file and serve any further affidavits to be filed on his behelf within 14 Gays efter the time limited in (1) hereof, or, if any such notice to admit is served by him, within 14 days after receipt of the reply thereto; that tne respondents file and serve any eftidevits to be filed on tneir behalf witnin 10 doys efter the time limited in (3) hereof cr of any eariicr advice from the applicant that it hees not intend to file any svch further cffidavits; that the cpplicant file any affidavits in reply thercto to be filed on his behalf within seven days after the time limited in (4) hereof; that the costs of this hearing be costs in tho ceuse; that any party be at liberty to apply furtner herein. eens em eee wee ee ee ee ee ee - - re gE ee Bee OC; a wee ee - mee ee ee ee oe neki ee en Sa RE ER | Ot To ecrtity | fee gy | . : ; - eet eee ee - - ee ep