_ JUDGMENT NO, senacdtOs Stt IN THE FEDERAL COURT OF AUSTRALIA SOUTH ISTRICT REGISTRY G DIVISIO BETWEEN : JOAN MARGARET HERE THY Applicant - AND: MINISTER FOR FOREIGN AFFAIRS & ORS Respondents EXTEMPORE REASONS FOR JUDGEMENT CORAM: WILCOX J, DATE: 16 NOVEMBER 1984 PLACE: SYDNEY There is before the Court an application made under the Administrative Decisions (Judicial Review) Act 1977 whereby the applicant seeks a review of certain decisions made by the respondents in relation to her employment at the International Training Institute at Mosman, conducted by the Australian Development Assistance Bureau. The applicant was appointed to the position of lecturer grade 2 at the Institute for a fixed term, namely, from 30 March 1981 to 30 March 1983; but, according to the letter of appointment, this was subject to the provisions of 3.82 of the Public Service Act, which section deals with temporary employees. 2. It appears that late in the year 1982 contentions arose between various members of the staff at the Institute resulting 'in some incident involving the applicant and Mrs June Whittaker, who is another member of the staff. It is not necessary, for the purposes of the present decision, to go into the merits of the dispute or to attempt to determine who was at fault. However. as a@ result of what happened, and possibly as a result of other matters as well, a view seems to have been formed by the Principal of the college, Mr L R Heron, the fifth respondent, that it would be in the interests of the Institute if Dr Herlihy did not continue at the Institute after the expiration of her current term. At that time there were advertisements seeking applications for a position - or perhaps more than one position - at the college which Dr Herlihy was interested in obtaining and she made application. The evidence indicates that as a result of the view taken by Mr Heron, her application was not considered. Subsequently it was decided that Dr Herlihy would leave the college at the end of the year 1982. There is some dispute as to the circumstances of that decision and, in particular, whether this was the result of a voluntary resiqnation or whether in effect she was forced to leave. Dr Herlihy complained of the way in which she had been treated and a number of letters was sent by her to Mr Heron and to other people in authority in relation to the Institute. On at 3. least three occasions, namely, by letters dated 7 December, 10 December and 28 December 1982, she requested reasons, under 8.13 'of the Administrative Decisions (Judicial Review) Act, for the various decisions which had been made affecting her. There was a response in relation to the letter of 10 December from Mr B J Teasey, Chief Officer of the Department of Foreign Affairs, who is the sixth respondent. His letter, dated 19 January 1983, referred to $.13 in terms indicating his acceptance that the applicant was entitled to reasons under that section in respect of her request of 10 December. The letter referred firstly to the evidence on which he had made his finding - that is, his finding as announced to Dr Herlihy in a letter of 6 December 1982 that her services should be terminated with effect from 31 December 1982 - by saying that the finding was based on the reports of three named persons. Those reports were not made available to Dr Herlihy so that in substance she was told nothing about the evidence upon which the finding was reached. Mr Teasey stated that, as to findings, he considered whether or not the situation of the Institute was such that in effect the running of the Institute was in jeopardy, and he conveyed his opinion, based on the three reports, that the applicant's continued employment at the Institute had created very strained relationships between staff members, which affected the work of the Institute. He said that his reason for his decision was that in a small tightly-knit organisation like the Institute it was undesirable to have on the staff a member whose attitude invests the concern and antagonism that existed at the Institute immediately prior to his decision. I emphasise that at this stage I have given no consideration to the validity of Mr Teasey's conclusion. I have 'not seen the material which would enable me to form any view on that question. No doubt it is correct that in a small organisation such as the Institute differences between staff can affect the workings of the organisation. However, it seems to me that the letter does not comply with s.13 in that it does not disclose the decision-maker's findings on material questions of fact, referring to the evidence or other material on which those findings were based. All that was indicated by the letter was the ultimate conclusion and the factual matter which gave rise to that conclusion is left undisclosed. No doubt Dr Herlihy would herself accept that there is a problem if there are strained relationships. but I think she was entitled to be told why it was said that strained relationships were matters for which she was responsible and why it was said that the degree of strain wags such that her immediate termination of employment was necessary. Subsequently there was a departmental inquiry into the matter by Mr Osborne, who reported on 3 June 1983 to Mr Smith, the First Secretary, Management Foreign Service Division, of the Department of Foreign Affairs. Mr Osborne's report contained findings which were in part favourable to Dr Herlihy. He expressed the view that she had been unfairly dealt with and recommended that she should be paid her salary up to the end of March - that is the remainder of her two year term. Dr Herlihy has subsequently obtained other employment and is now employed in the Ombudsman's office in Canberra as a 'senior investigative officer. Notwithstanding that, she continues to feel aggrieved at her treatment at the Institute, taking the view that this has prejudiced her reputation and her future career as well as having caused her various financial losses which she would wish to recover. The Application before the Court seeks inter alia damages and thus raises a question which does not yet appear to have been judicially resolved as to whether damages are recoverable under the Administrative Decisions (Judicial Review) Act. . The matter was put in for hearing today on a limited basis. The respondents have taken the view that the application was filed out of time. The applicant did not concede this but contended that if the application was out of time then the Court should exercise its discretion under s.11(1)(c) of the Act to extend time. I have in the first instance heard argument on the question of whether the Application is within time. The relevant decisions in relation to the applicant's departure from the Institute were made late in 1982 and early in 1983. However, during a later period of 1983 there were variou: decisions made by the respondents in effect reaffirming the earlier decisions, I see considerable difficulty with the argument that those later decisions were decisions under an enactment so as to attract 6. review but, for reasons which I will indicate, it is not necessary to determine that matter. It does appear to be quite clear that the initial decisions in December 1982 were decisions under an enactment and that within the requisite period of 28 days various requests were made for reasons under 8.13. It seems also to be clear that at least until the sending of a letter dated 19 December 1983 there had not been a compliance with 8.13. It is arguable that the letter of 19 December was a sufficient compliance but it is not — necessary to determine that matter because the Application was filed within the requisite period of 28 days from the receipt of the letter of 19 December. It seems to me that once the view is tormed that there was a proper application for 3.13 reasons within 28 days of any of the relevant decisions and that no document complying with s.13 was furnished - or alternatively, an appropriate notice under s.13(3), an order under 3.13(4A) or a notification under s.13A(3) or 3.14(3) was made - until a period which is less than 28 days from the filing of the application, then it follows that the application is within time. It has been contended on behalf of the respondents that 8.11(3)(b) (111) applies to a case where a s.13 request has been made but not complied with so as to make the time for the application 28 days from the making of the decision. I do not think that this is the correct construction of that provision. It seems to me that 3.11(3) attempts to deal with a number of alternative contingencies. It may be that the decision itself sets out findings on material questions of fact and refers to the 'evidence and other material on which the findings were based and gives the reasons for decision - that is, it does all that would be required under s.13. In that event time runs from the date of the furnishing of the document setting out the decision because all the necessary information is then made available. That situation is covered by s.11(3)(a). Paragraph (b) then goes on to consider the case to which paragraph (a) does not apply; that is the information is not furnished as part of the decision. Sub-paragraph (1) deals with a case where a statement in writing setting out the findings, referring to the evidence or other material and giving the reasons is furnished, otherwise than in pursuance of a request under s.13(1). In other words, there could be a sufficient disclosure of the material which would be requirable under s.13 without there being a formal request. In that event time runs from the day when that statement i3 furnished. Sub-paragraph (ii) deals with a case where there is a formal request and it makes time to run from the day on which the statement is furnished or, alternatively, the date on which the applicant is notified in accordance with s.13(3) of the respondent's opinion that the applicant is not entitled to make a request or, thirdly, the day on which the court makes an order under s.13(4A) declaring that the applicant was not entitled to 8. make the request or, finally, the day on which the applicant is informed in accordance with s.13A(3) or 3.14(3) that a statement 'will not be furnished because of the particular matters which would be required to be disclosed. This means that time for making the application for review runs from the day of completion of the s.13 process. Sub-paragraph (iii) applies to any other case, that is a case in relation to which there has been no request for s.13 reasons. It would make nonsense of the structure of the section if the decision-maker could refrain from supplying the reasons under 3.13 and then use his own default to cause the application for review to become out of time. In the present case there were a series of applications under s.13 and it is accepted that those applications were properly made. There was not a satisfaction with the requirements of 3.13, at least prior to 19 December 1983, and I think it follows that time did not run against the applicant at least until that day. That is enough for her purposes because, calculating from 19 December, her application is within time. I have therefore come to the conclusion that the application is within time and, consequentiy, there is no need to consider whether this is a proper case for the exercise of a discretion to extend time pursuant to s.11(1)(c). 9. I add that Mr Shore has drawn my attention to s.11(4) which deals with a situation where no period is prescribed for 'the making of applications for orders of review in relation to a particular decision or, alternatively, in respect of an application by a particular person for an order of review in relation to a particular decision. I think it is suffictent for me to say that I do not regard this subsection as applying to the present case. The decisions in the present case are decisions in relation to which a period is prescribed by subs (3). The question whether the Application is within time is, therefore, to be determined solely by the terms of that subsection. I hold that it is within time and I will proceed with the making of directions for further and better particulars and for the full statement of the reasons for the various decisions, so as to ensure that the issues are crystallised before the hearing. I certify that this and the eight (5) preceding pages are a true copy of the Reasons for Judqaement herein of his Honour Mr Justice Wilcox. Associate aur Were Dated og i | oy