IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No.G 265 of 1956 ~wvyewew BETWEEN : DAVID POBERT SIMPSON Applicant AND: L. R. HERON First Respondent AND: G.S. GUTHRIE Second Respendent AND: PB. WILLENSKTI Chairmain of the Public Service Board, G.S.GLENN Commissioner of the Public Service Board and R.B.D. BEALE Commissioner of the Public Service Board sitting as the Public Service Board under the Public Service Act, 1922 Third Respondent MINUTE OF ORDER JUDGE: Fox J. DATE OF ORDER: 22 December 19286 WHERE MADE: Sydnev THE COURT ORDERS THAT: 1. The relief sought under s.39B of the Judiciary Act 1903 on mene ee —~. ne a tg ne a nt nr i me ii ne * be struck cut from the statement of claim, with costs. 2. The application for an order of review be dismissed, with costs. Note: Settlement and entry or orders is dealt with in Order 36 of the Federal Court Rules. ee ee pene Ca mentee mete See en a mR cr one ee ee eee emt ati ee Aires te Se me ee meee eterm te mn eT IN THE FRFDERAL COURT OF AUSTRALTA NEW SOUTH WALES DISTRICT REGISTRY No.G 265 of 1986 we wry GENERAL DIVISION BETWEEN : DAVID ROBERT SIMPSON Applicant AND: L.R. HERON First Respondent AND: G.S. GUTHRIE Second Respondent AND: P. WILLENSKI Chairman of the Public Service Board, G.S. GLENN Commissioner of the Public Service Board and PR.B.D. BEALE Commissioner of the Public Service Board sitting as the Public Service Board under the Public Service Act, 1922 Third Respondent CORAM: FOX J. DATE: 22 DECEMBER 1986 EX TEMPORE REASONS FOR JUDGMENT FOX J. The respondents to an application under the | 2. { Administrative Decisions (Judicial Review) Act 1977, in which orders for prerogative writs are also sought pursuant to s.39B of the Judiciary Act 1903, have by motion sought an order dismissing the application on the ground that so far as concerns the application under the Judicial Review Act, it wags made out of time, and no leave for that purpose has been qranted. The application for prerogative writs is challenged procedurally and on the footing that it has no merit and I will return to that matter. The decision challenged was made on 14 December 1982, and the application was filed on 4 Julv 1986. Although in the body of the application an order is sought allowing the oroceedings to be commenced out of time. no separate application has been made. At a directions hearing on 25 July, it was acknowledged that an application for leave had to be made, and directions were qiven with respect to hearing that application without the filing of a separate notice of motion. When the respondent's motion came on for hearing, application was made by the applicant for the enlargement of time, and the matter has proceeded before me in part as a hearing of that application and in part as an application for orders to show cause why writs of certiorari. prohibition and mandamus should not issue (Order 54A rel). The case concerns the International Training Institute a - meee ee ee ee ee ae eee ce tremenlingnet mt nme Riemer mn eee ("the Institute") which is part of the Australian Develonment Assistance Bureau ("A.D.A.B."), a section of the Department of Foreign Affairs ("D.F.A."). The Institute is a small body, operating under a Principal, who at relevant times was Mr Heron, the first respondent. The applicant seeks an order of review cof Mr Heron's decision not to recommend his reappointment as a Lecturer at the Institute from 1 January 1983. The application is made on eleven grounds which includes the taking into account of irrelevant considerations, the failure to take into account relevant considerations, breach of natural justice, bias and failure to observe procedures which were required by law. Taking the view, correctly, that the history of the case is a consideration relative to the exercise of the Court's discretion on this application. a body of evidence has been adduced which goes to that matter. The applicant obtained in May 1982 a temporarv appointment with the Institute as a Lecturer, Grade III. At the time, the future of the Institute was in doubt. It was known to the applicant that the continuance of his appointment (and that of other officers) after 1982 was a matter dependent upon the continuance of the Institute itself, and a consideration at the end of the vear of what appointments were to be made, to what grades, and for what respective periods. At the time of his appointment and from time to time thereafter Mr. Heron and the next senior officer of the Institute, a Dr. McLaren. had encouraged the applicant in a belief that his employment would be continued, subject to arrangements being made, at the responsible level, for the continuance of the Institute. In August 1982 it was decided that the Institute would continue, and permanent positions were advertised. The applicant duly applied for a position as a Senior Lecturer, although he indicated at the same time that he would consider another (and lower) grade. Mr Heron replied that the applicant would not be considered as a Senior Lecturer but that he would be interviewed for the immediately lower level of Lecturer, Grade I. The applicant appeared before an interviewing panel on 8 December. On 10 December 1982. when Mr. Heron was away for a few days, he was told by Dr. McLaren that he would be re-emploved. So far as the evidence qoes no mention was then made of grade or of duration of appointment. The applicant went overseas, confident that his employment with the Institute was to continue. However, the panel had in fact decided not to recommend him for appointment as a Lecturer, Grade I and not to consider him for other grades. By letter dated 14 December 1982, and signed by Mr. Heron, he was told that his application for employment by the Institute had been unsuccessful. He iid not receive this letter until late in January 1983, when he returned from overseas. After receipt of the letter the applicant teck many steps and made many approaches to a variety of bodies and persons which from his point of view were related to the decision and to his claim for certain amounts payable to him while he served. On 31 January 1983 he wrote to Mr. Heron and asked for a reference but did not therein complain of the decision. Between then and 2 March he consulted lawvers and received advice about the Judicial Review Act, at least so far as concerned the obtainina of a Statement under s.13. On the latter date he requested s.13 Statements from Mr Heron and from the Director of the A.D.A.B. On 2 May (well outside the 28 davs provided for by the Act) a letter was sent to him from Mr Heron stating that the decision in question was not within the class of decisions to which s. 13 applied. Meanwhile, on 6-March he made a complaint to the Grievance and Appeals Bureau of the Public Service Board. By letter dated 5 May the Bureau explained (apparently not for the first time) that investigation by it was not a substitute for the applicant's legal rights. On 8 July the Bureau rejected the complaint on the ground that in its view proper procedures had been followed in dealing with his application for re-employment. In November 1983 the applicant again sought legal advice concerning an application under the Judicial Review Act. On 16 January 1984 the applicant's solicitors wrote to the D.F.A., Canberra, making a claim and referring to their advice to their client that the decision not to reappoint the applicant would probably be set aside under the Judicial Review Act. On 10 August 1984 the Australian Government Solicitor ("A.G.S5."") sought particulars from the applicant's solicitors of the basis of the clain. On 19 October 1984 the applicant's solicitors supplied the particulars. Discussions between the applicant's solicitors and the A.G.S. took place in June, July and August 1985. On 4 July 1985 the applicant's solicitors informed the applicant that the A.G.S. had said that an offer of settlement would be made, but the making of such a promise seems to be in dispute. On 13 August 1985 the applicant's solicitors informed him that the A.G.S. had said that if the applicant did not wish to wait any longer he should commence proceedings; and that the solicitors had advised against doing so at that stade. On ll October 1985 the A.G.S. rejected the claim andon 22 October gave reasons therefor. On 12 September 1984 a complaint had been lodged by the applicant with the Commonwealth Ombudsman. On 2 October 1984 the Ombudsman replied that he would not investigate the matter for the time being as it was under review and a reply to the A.G.S.'s request for particulars was being awaited. On 18 November 1984 the applicant asked the Ombudsman to look at the matter again in view of the fact that a month had passed since the particulars were supplied. On 11 December 1984 the Ombudsman replied that there were no "special circumstances" justifying investigation of a ed woe ee eee ee ee the events of December 1982. but that he would investigate the "alleged unreasonable delay by the C€D.F.A.] in finalising Cthe applicant's] claim for compensation". On 16 July 1985 the Ombudsman wrote stating (incorrectly) that an offer of settlement had been made by the A.G.S. on 30 June 1985 and so it was "inappropriate for this office to become involved". On 26 March 1986 the Ombudsman forwarded reports about the delay from the D.F.A. and_ the Attorney-General's Department to the applicant. Commencing on 2 Mav 1983 the applicant had sought access under the Freedom of Information Act to documents concerning his appointment and the fact that he was not reappointed. There is onagoing correspondence about this; some documents were produced, an application was on9 February 1984 made for review bv the Administrative Appeals Tribunal anda similar application was made on 30 May 1984. The applications were mostly made to the D.F.A., but some were made to the Public Service Board. At one stage Senator Childs was asked to intervene about delay in providing the s.13 Statements and at another the Professional Officers Association was approached. On 4 March 1986 the applicant wrote to the Public Service Board seeking a settlement offer from it and on 4 Julv 1986 he lodged the present application. There was a total of seven persons who were appointed pursuant to the selection made in December 1982, but they were appointed to specified qrades and for a specified number of years. Three were appointed for 3 years, and four were appointed for 4 vears, all from 1 January 1983. The appointments in relation to three have therefore expired and in relation to four will expire in a few weeks. So far as appears, the Institute is likely to continue for at least another 1 or 2 years. Tf successful in his application to apply out of time the applicant seeks at this stage an interlocutory injunction which may be prohibitive or may be mandatory in nature, or perhaps some of both. No matter what is done, however, it is quite apparent that the passage of time has resolved the situation, and it is impossible to restore it to the way it existed at the end of 1982 and beginning of 1983. In the alternative, counsel for the applicant has talked of damages. Although this would be a matter for a final hearing it is necessary to first get leave to apply out of time. So far as concerns the prerogative writs which are sought, the most that the applicant would expect at this stage is an order to show cause in accordance with the Rules (0.54A, r.1). As I have said no document has been filed seeking such orders, but the case has proceeded as if they are included in the relief sought. I have not taken particular note of the procedural defect in this reqard but I may have to return to it later. ee The applicant has been very active since his unsuccessful application for re-employment and I think it may reasonably be inferred that the Institute and the D.F.A. have had a broad awareness of his continuing activity and a knowledge that he has complained to many people and authorities concerning what he regards as his unfair treatment. It has not been so apparent at all times that there was the same awareness that he was qoing to seek relief of the nature now sought and that he was going to apply under the Judicial Review Act. Indeed, the evidence suagests that there were at least long periods when the relevant authorities and people were entitled to think that no further steps were being taken in that reqard. The applicant gives by way of explanation for his failure to apply within time, or at least at an earlier date, his desire to exhaust all extra-curial remedies before coming to Court. No further explanation is qiven as to whv he had this wish. although it is suggested that the costs of litigation were a significant factor. So far as appears there was no express threat at any stage that failing satisfactory resolution of his complaint he would apply to the Court. As to the time within which. under the Act, an application should have been filed. counsel for the applicant contends that time ran from final refusal of the statement under s.13 and he therefore places the expiry date at 30 Mav 1983. Counsel for the respondent submits that this proceeds on a misconstruction of the Act and that the date was 28 davs after 10. the applicant became aware of the decision in late January 1993. I do not think it matters much in this case but in my view the latter construction is correct. The applicant was overseas in January, but, if the submission of the respondent is correct, he then had 28 davs to apply. If the time ran from the makina of the decision. he would have had to apply for an enlargement of time in any event, but the circumstances then would have been verv different. It is apparent however, from the very nature of the case that if action was to be taken with a view to securing a revision of the decision, and the appointment or opportunity for appointment of the applicant, it would have had to be taken very promptly. I do not think it could be said that it was unreasonable to go overseas wnen he did and for as long as he did, but he must have been aware and I think was aware that the appointment had to be made formally and that the authority to make it was not in the hands of Dr. McLaren or of Mr. Heron. The applicant contends that once it was decided. or contemplated, that other people were to be appointed, and that he was not. having in mind the statements made to him by Mr. Heron and Dr. McLaren. he should have been qiven an opportunity to vaise those matters with the panel and the decision-maker. It does not seem to me that this its sound. He applied for the position as a fresh appointment and he was heard by the panel. It was apparent from the panel's findings that he was nota candidate for any other grade. I do not know whether he told the panel of the assurances he had been given. Quite likely, he ee ee ee = ee 11. thought that out of order and one can agree that that might weil have been so. The panel obviously could not be infiuenced by statements made to various people at various times by way of re-assurance or encouragement. Mr. Heron himself was part of that panel. Reliance is placed upon rights said to arise from the statements made by Mr. Heron and by Dr. McLaren in December. It is first said that one or other or both gave rise to a contract. The lanquage used does not permit of that conclusion. but in any event neither person had actual or ostensible authoritv to make the appointment, or was believed to have that authority. This seems plainly to have been accepted by the applicant himself when he applied for reappointment and appeared before the panel. Afterwards, Dr. McLaren was seeking to inform the applicant what he understocd to be the result of the panel's recommendations and perhaps his expectation that the recommendations would be accepted. He has not given evidence at this stage and I will make no further comment on the matter. There is no in my view any form of contract, but if there had been it would not provide a basis for coming to this Court under the Judicial Review Act or, in the circumstances, for obtaining a prerogative writ. It is then said that there is a form of estoppel arising which prevented the Institute from acting on a basis contrary to one in which the applicant was regarded as being appointed. This requirement fails for a mumber of reasons which I think are apparent from what I have already said. The case is in sum, one in which the application to have time enlarged is made years after the time appointed but the case itself seems to have no merit. The consequence of any relief of the nature of judicial review of administrative action would be quite unreal, in the sense that it would not be possible. having in mind the lapse of time to quash the decision or otherwise deal with the decision in a way which has taken account of subsequent events. Counsel has not been able to explain to me how any order made now under the Judicial Review Act could do justice to the applicant and to the persons who were appointed. or to others concerned. The parties to this case do not include the persons who were appointed and if any of them was to be displaced at this late stage, beside the utter confusion to which that would lead, there would have to be some opportunity for them to be heard. There has not simply been the lapse of time but the fact that the relevant authorities and people were not apprised of the fact that an application might be made. On the contrary, concerned parties were allowed to proceed on the basis that no such application would be made. I think the first letter in reply to Mr. Heron is a siqnificant starting point in this reqard. I do not know whether it is submitted that the applicant should be treated as a possible additional appointee, but that in itseif would lead again to an unreal situation. IT have said more than once in the course of argument that one can sympathise with the position of the applicant. having been told, as he had in my view, by Dr. McLaren that he had been re-appointed or was virtually re-appointed, that when he went overseas he had a belief to that effect and came back and found the panel had not in fact appointed him at all. The panel itself duly heard the applicant and apparently had a quite clear (and unfavourable) view about where he stood in relation to the proffered appointments. My view is therefore that the application for the extension of time should be refused and I do refuse it. That leaves the apolication which started this matter, in other words the respondent's application to have the case dismissed. T have not heard any arqument as to whv, if extension of time was refused, the application which has in fact been filed without leave should not be dismissed. There is, within that application as I have said, relief sought which has reference to section 39B of the Judiciary Act. I think as a matter of pleading, apart from anything else that it cannot stand where it is; it is part of a dismissed application and I will order that the relief sought under s.398 be struck out from the statement of claim. If the applicant wishes and is so advised he may renew the application more in 14. accordarce with the rules and one can see then what happens to it. He does not of course lose the benefit of the fact that it was in the amended statement of claim. and has been for a while, because those documents still exist. I add that I do not see how, as matters stand, the 3.39B application can he sustained separately. I make those orders with costs. I certify that this and the thirteen preceding pages are a true copy of the Reasons for Judament herein of his » Honour Mr. Justice Fox. tl a _—— Associate Dated: 22 December 1986 Counsel for the Applicant: Mr AS Martin Solicitor for the Applicant: Messrs Carneys Counsel for the Respondent: Mr L Katz Solicitors for the Respondent: Australian Government Solicitor Dates of hearing: 17, 18 November: 22 December 1986 Date judgment delivered: 22 December 1986