Bragg, M.D. v The Secretary, Department of Employment, Education & Training [1995] FCA 372

C A T C H W O R D S ADMINISTRATIVE LAW - application for order of review of decision to dismiss the applicant from the Public Service pursuant to s.62(6)(b) of the Public Service Act - whether s.63D of the Public Service Act provides "adequate review" for the purposes of s.10(2)(b)(ii) of the ADJR Act - whether discretion to refuse to grant the application should be exercised. Public Service Act 1922 - ss.62(6), 63D(2), 76Z Administrative Decisions (Judicial Review) Act (1977) (Cth) - s.10(2)(b)(ii) Merit Protection (Australian Government Employees) Act 1984 - ss.17, 18 Kelly v Coates (1981) 35 ALR 93 Beck v Thornett (1984) 6 ALN N209 Mercantile Credits Ltd v Federal Commissioner of Taxation (No 1) (1985) 8 FCR 510 Convery v Zimmo (1985) 70 ALR 383 A E Bishop & Associates Pty Ltd v Trade Practices Commission (1989) 11 ATPR 40-985 Inglis v Bateson (1990) 22 ALD 420 Colpitts v ATC (1986) 9 FCR 52 MATTHEW DAVID BRAGG v THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION & TRAINING NG 84 of 1995 Davies J. 8 June 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 84 of 1995 ) GENERAL DIVISION ) BETWEEN: MATTHEW DAVID BRAGG Applicant AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING Respondent Coram: Davies J. Date: 8 June 1995 Place: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. 2. Liberty to apply with respect to costs is reserved. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 84 of 1995 ) GENERAL DIVISION ) BETWEEN: MATTHEW DAVID BRAGG Applicant AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING Respondent Coram: Davies J. Date: 8 June 1995 Place: Sydney REASONS FOR JUDGMENT The present issue is whether the Court should, in its discretion under s.10(2)(b)(ii) Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"), dismiss the application. Section 10(2)(b)(ii) of the ADJR Act provides:- "(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason - ... (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure." The application was filed on 16 February 1995 seeking review of two decisions of Mr George Malicki, a delegate of the respondent, made on 16 January 1995 pursuant to s.62(6)(b) of the Public Service Act 1922. The decisions relate to charges of misconduct made against the applicant. In respect of both charges, Mr Malicki found the charges to be proved and directed that the applicant be dismissed from the Service. The misconduct was found by Mr Malicki to be:- "[A]t about 1:15pm on 25 November 1992, when Mr Matthew David Bragg and Ms Michelle Darmanin were alone together in a lift in Town Hall House, Kent Street, Sydney, Mr Bragg turned towards Ms Darmanin, lunged at her, grabbed her aggressively by the shoulders and pushed her against the wall of the lift. He then grabbed her around the neck and shook her violently." and:- "[A]t approximately 1:30pm on 25 November 1992 in the lunch room of the Public Sector Recruitment Office, Town Hall House, Kent Street, Sydney, Mr Matthew Bragg humiliated Ms Michelle Darmanin by stating to others present that Ms Darmanin had been "dying to get her hands on him", such behaviour amounting to sexual harassment as defined in sub section 28 of the Sex Discrimination Act 1984." It is common ground that the applicant was entitled to appeal against the decisions under s.63D(2) Public Service Act 1922 to a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 ("the Merit Protection Act"). Section 63D(2) reads, inter alia:- "(2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him: (a) if the decision relates to a charge of misconduct - on either or both of the following grounds: (i) that the charge should have been dismissed; or