JUDGMENT No. wel QZ. 2a eect Le. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No G 729 of 1994 ) GENERAL DIVISION ) BETWEEN: CHRISTINA PANAGOPOULOS Applicant AND: THE SECRETARY, DEPARTMENT OF VETERANS' AFFAIRS AND OTHERS Respondent Coram: Davies J. Date: 12 December 1994 Place: Sydney REASONS FOR JUDGMENT EX TEMPORE This is an apphcation m which the ultimate relief sought 1s orders of review with respect to decisions to retire the applicant, Christina Panagopoulos, from the Commonwealth Public Service. I should commence by saying that in my view, the substantive laws and the procedures provided under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") do not provide the best remedy for reviewing disciplinary decisions, retirement decisions, or for that matter, any other decision dealing with the promotion, transfer or alteration of the mghts or status of Commonwealth public -2- servants. It is :mportant that there be adequate merits review of all such decisions. Merits review is far more appropriate than the review available under the ADJR Act. Review by this Court very often cannot get to the heart of the merits of a matter, looking merely to questions such as whether all relevant facts were taken into account, whether any irrelevant fact was taken into account and whether the decision was so unreasonable that no reasonable decision maker could have arrived at it. Those are the principal grounds m many cases. Other grounds, such as non-compliance with procedural requirements and so on are also relied upon. In the end, the Court cannot get to the merits of the case. It 1s desirable that there be adequate merits review whereby this 1s achieved. Having said that, I turn to the motion we are dealimg with this morning. The principal application seeks review of two decisions. One was the primary decision by a Mr Peter Walker, a delegate of the Secretary of the Department of Veterans Affairs, to retire Miss Christina Panagopoulos. The time for review of this decision ran from 31 May 1994, Miss Panagopoulos did not mmediately seek review under the ADJR Act, but appealed to an appeal committee under section 76(Z) of the Public Service Act 1922 (Cth). Such an appeal may be brought on the ground that the retirement of the officer would be unreasonable. That is the ground specified by section 76(Z). The width of that ground is a little uncertam. It certainly covers the ground of unreasonableness, but whether it covers all the grounds of failure to comply with procedural requirements may be a matter of doubt. In any event, the review is not a -3- full merits review, it is a limited review, though no doubt in practice the word 'unreasonable' 1s given a wide ambit. The second part of the principal application seeks review of the decision of the Appeal Committee which, by majority, affirmed the original decision. The first respondent, the Secretary of Department Affairs, has raised the issue whether the application was lodged in time, imsofar as it seeks review of the decision of Mr Walker. This present motion seeks an extension of time so as to validate the application which was lodged on 26 October. The application was lodged in time for the review of the decision of the Appeal Committee. In my opinion, it is inevitable that, in order to determine the validity of the decision making process in relation to the retirement, the Court must consider both decisions and cannot consider just the decision of the Appeal Committee itself. That 1s because the powers of the Appeal Committee are not unlimited; the jurisdiction of that Committee is limited to the ground specified by section 76(Z) of the Public Service Act 1988 (Cth), and there may be some matter arising which goes to the validity of the decision which was not within the jurisdiction of the Appeal Committee. I refer by analogy to the case of Ridge v Baldwin [1964] AC 40. Of course, that was a very different case, but it was there held that a primary decision was invalid on the ground that the officer, a Chief Constable, had not been given proper procedural fairness before the primary decision was taken. It was held by the House -4- of Lords that the primary decision was void. It was also held that the affirmation of that decision by the minister was ineffectual because the affirmation of a nullity was itself a nullity. I cannot readily pick out all the passages in Lord Reid's judgment to which I would like to refer, but his Lordslup dealt with this matter at pp. 80 & 81 and said that, as the decision of the minister was a nullity, then although the appellant had elected to go, in the first place, to the Secretary of State, he had not waived his right to come to the Court and was not estopped from doing so. Lords Morris, Hodson & Devlin expressed views to the same etfect. Circumstances differ according to the legislation and Ridge v Baldwin does not have universal application in circumstances where there are various layers of appeals offered. But in a case such as the present, where the Court could not come to grips with the totality of the matters that the applicant wishes it to look at without looking both at the original decision and at the decision on review, I think that the Court has to consider both applications. It follows, therefore, that time should be extended. I think there was no waiver of the right to come to the Court because of the appeal to the Appeal Committee. I think it was a sensible course for the applicant to take to go first to the Appeal Committee. It seems to me that time should be extended and I shali therefore extend time in respect of the decision of Mr Peter Walker, so as to validate the application lodged on 20 October 1994. Having said that, I am still troubled about cases of this type. My present view -5- is that the Industrial Relations Court 1s the proper court for a case of this type because it can get to the heart of the merits of the matter. For example, s.170(DE) of the Industrial Relations Act 1988 (Cth) provides that there must be a valid reason connected with the employee's capacity or conduct for the termination of the employee's employment and that a reason which is harsh, unjust or unreasonable 1s not a valid reason. That is a wider ground in my opinion than the ground of unreasonableness, the Wednesbury ground (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1968) 1 KB 223), that this Court can apply under the ADJR Act. It seems to be not in dispute, though counsel have not specifically directed thei attention to it, and I have not looked at the issue, that the Industrial Relations Act would apply to officers employed under the Public Service Act 1922. A questions arises, however, under s.170(BE) of the Industrial Relations Act whereby the Court must decline to consider or determine an application if it is satisfied that there is available to an employee an adequate alternative remedy. Apparently, the Industrial Relations Court 1s considering issues such as whether appeals under sections such as s.76(Z) of the Public Service Act 1922 provide an adequate alternative remedy. That is a matter for the Industrial Relations Court and I make no comment on it. My present tentative view, however, is that the jurisdiction conferred on this Court by the ADJR Act would not be an adequate alternative remedy to the remedies which the Industrial Relations Act confers upon the Industrial Relations Court. -6- I can inform the parties of this tentative view at this stage and also of my tentative view that this may be an appropriate case for the Court to exercise the discretion conferred upon it by s.10 of the ADJR Act, namely to dismiss an application because of adequate provision made by another law, the other law being the Industrial Relations Act. [do not wish to rule upon this matter at the present time, but you have my indication that, in my opinion, the jurisdiction and the remedies available under the Industrial Relations Act are more adequate than those available to this Court under the ADJR Act. My present view 1s that parties should be encouraged to go to the Industrial Relations Court, as mdeed the applicant already has done. It may well be premature for me to say anything further about the matter because I am informed that a case dealing with like issues will be considered by the Industrial Relations Court shortly. The view that that Court takes upon the matter would have influence with this Court. For the moment I shall simply make the order @ extending time. I certify that this and the preceding 5 pages are a true copy of the reasons for judgment of the Honourable Justice Davies. Date: ole | 45 Associate: Ws {A