Roderick, David James v Telstra Corp Ltd [1998] FCA 900

FEDERAL COURT OF AUSTRALIA Administrative law - application for leave to appeal against refusal to extend time to seek review of an administrative decision - application made four years out of time - no error in the exercise of the primary judge's exercise of discretion. Administrative Decisions (Judicial Review) Act 1977, ss 11(1)(c), 11(3) Telecommunications Act 1991 (Cth) House v The King (1936) 55 CLR 499 Matter No. SG3 of 1998 DAVID JAMES RODERICK v TELSTRA CORPORATION LIMITED VON DOUSSA, WHITLAM and CARR JJ 20 JULY 1998 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 3 of 1998

BETWEEN: david james roderick

Applicant

AND: telstra corporation limited

Respondent

JUDGES: VON DOUSSA, whitlam and carr jj

DATE OF ORDER: 20 july 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application to the Full Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 3 of 1998

BETWEEN: david james roderick

Applicant

AND: telstra corporation limited

Respondent

JUDGES: VON DOUSSA, whitlam and carr jj

DATE: 20 july 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT. The applicant seeks leave to appeal against an interlocutory judgment delivered by Mansfield J on 16 December 1997 which refused an extension of time within which to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("The ADJR Act"). The applicant sought an extension of time to review a decision of a Board of Review acting under the Telecommunications Act 1991 (Cth) which disallowed an appeal by the applicant against a decision of the respondent to annul his probationary appointment and to terminate his appointment as a radio linesman. This matter has a very long history. The applicant commenced permanent employment on probation with the respondent on 25 September 1989. The respondent purported to terminate his employment on 19 November 1990. Then started a long course of challenges to that termination by the applicant. The history of appeals, judicial reviews, and appeals to the Full Court since then is recorded in the judgment of Mansfield J. The various proceedings taken by the applicant include a hearing before a Board of Review in February 1991 (the first Board of Review), a Review under the ADJR Act of the decision of the first Board of Review leading to two judgments by the primary judge and an appeal to the Full Court of the Federal Court. On the appeal the decision of the first Board of Review was set aside. This led to a hearing before a second Board of Review in July 1993. The second Board of Review delivered its decision on 1 September 1993, again disallowing the appeal by the applicant, and confirming the recommendation that his employment be terminated. That decision was implemented by the respondent on 28 September 1993. It is in respect of the decision of the second Board of Review that the applicant now seeks an extension of time within which to take proceedings for review. The time limited by s 11(3) of the ADJR Act within which the application for review should have been commenced was 28 days. The application for review should have been filed not later than 29 September 1993. It was not until 9 October 1997 that the applicant filed the application seeking an extension of time, that is more than four years after time expired. The applicant has produced a draft application which he proposes to file if an extension of time is granted. The draft application seeks: (a) to review conduct of the respondent between May 1990 and February 1991 which preceded the termination of his employment. (b) to argue that a letter dated 16 February 1990 given to the applicant by the respondent had the effect of removing him from the status of a probationary employee and confirming unconditionally his status as a permanent employee. (c) to review the decision of the first Board of Review given on 21 February 1991. (d) to review the decision of the second Board of Review given on 1 September 1993. For the reasons given by Mansfield J, the first three issues are no longer issues that can be the subject of review or further decision by the courts. The question of the respondent's conduct between May 1990 and February 1991 was dealt with by order of von Doussa J made on 11 July 1991. There has been no appeal from that order, and in any event the conduct preceded the decision of 21 February 1991. That decision was set aside by order of the Full Court and accordingly the conduct leading up to it is no longer a matter of relevance. There can be no further review of the decision of 21 February 1991 as it has already been set aside by the Full Court. The question of the interpretation of the letter of 16 February 1990 was also dealt with by judgment of a Full Court on 4 December 1992. The Full Court held that the letter did not have the effect contended for by the applicant. There has been no further appeal from that judgment which is now binding on the applicant. The only matter that could have been the subject of further review in September 1993 was the decision of the second Board of Review given on 1 September 1993. Mansfield J was therefore correct to confine his consideration to whether an extension of time should be granted to review that decision. The applicant sought to have time extended under s 11(1)(c) of the ADJR Act. That paragraph vested a discretion in the primary judge, the exercise of which the appellant now seeks to challenge. An appeal against an exercise of a judicial discretion is to be determined according to well established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in a position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the judgment, mistakes the facts, or does not take into account some material consideration, then the determination should be reviewed and the appellate court may exercise its own discretion in substitution for that of the primary judge, if the appellate court has the materials for doing so. The appellate court may also interfere if upon the facts the exercise of the discretion was unreasonable or plainly unjust, even though a precise error of fact or law may not have been identified: see House v The King (1936) 55 CLR 499 at 504-505. The applicant's application for leave to appeal does not identify precisely any error of law by the primary judge. It alleges in general terms that a substantial injustice would result if leave is refused, and that the primary judge came to the wrong conclusion "in making his decision on the merits of questions of fact". The applicant in his written and oral submissions has contended that the second Board of Review came to erroneous conclusions on matters of fact and in particular reached the wrong conclusion in holding that there had been no conspiracy amongst officers of the respondent to bring about his dismissal. The applicant's arguments as to errors of fact made by the second Board of Review were made to Mansfield J and he has addressed them in his reasons for decision. We have considered carefully the submissions both written and oral which the applicant has made in support of the present application. We are unable to identify any error of law or of fact made by the primary judge. In our opinion the primary judge correctly identified the issues which were relevant to the exercise of the discretion. Moreover, we consider that the reasons given by the primary judge for refusing to extend time were correct. Both before the primary judge and before this Court, the applicant has contended that he will suffer a serious injustice if time is not extended. He will only suffer injustice if, upon a review, the court would set aside the decision of the second Board of Review, and, further, if on a rehearing another Board of Review came to a different decision. In our opinion the information advanced before the primary judge discloses no reasonable prospect that the decision of the second Board of Review would be set aside even if time were extended. The applicant has failed to establish the likelihood that he will suffer any injustice from the refusal of the application to extend time. In our opinion the application for leave to appeal must be dismissed and we order accordingly. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Court