Vickers v Hanks [1999] FCA 695

FEDERAL COURT OF AUSTRALIA

Vickers v Hanks [1999] FCA 695

VICKERS V HANKS

W 84 of 1999

CARR J

25 AUGUST 1999

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 84 OF 1999

BETWEEN: ALAN STEWART VICKERS

Applicant

AND: PETER LAWRENCE HANKS

Respondent

JUDGE: CARR J

DATE OF ORDER: 25 AUGUST 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant's claim for interlocutory relief, as set out in paragraph 2 of his application, be dismissed. 2. The costs of that interlocutory application be costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 84 OF 1999

BETWEEN: ALAN STEWART VICKERS

Applicant

AND: PETER LAWRENCE HANKS

Respondent

JUDGE: CARR J

DATE: 25 AUGUST 1999

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT

Introduction 1 The Court has before it an application for an interlocutory injunction to restrain the respondent, until the final hearing and determination of the principal application, from proceeding with an inquiry or making a proposed decision. 2 I shall outline the factual background to this matter. It should be clearly understood that by referring to the factual background, I am not to be taken to be making any final findings of fact. As I have mentioned, this is an application for interlocutory relief and my decision has to be based on the affidavit material which has been filed to date. None of that affidavit material has been tested by cross-examination or otherwise. 3 The applicant is a civilian General Service Officer level 5 employed by the Department of Defence at Palmer Barracks near Perth. Since early 1996 the applicant has been the workplace delegate at Palmer Barracks for members of the National Union of Workers, Western Australian Branch ("the Union"). The applicant's evidence is that in the course of his duties as workplace delegate he had dealings with, in particular, two persons at Palmer Barracks. The first was a Ms Frederika Cousins and the second was a Lieutenant Robinson. On 22 March 1998 Ms Cousins lodged a formal complaint (termed "a grievance") alleging workplace harassment by the applicant. The Department of Defence instigated an investigation into that complaint. At that stage the applicant, through his solicitors, foreshadowed an application to this Court to prevent that investigation proceeding, on the basis that while undertaking the role of a union representative his actions could not constitute actions to which the relevant regulation applied. In circumstances which it is not necessary, at this stage, for me to relate, the Department (with Ms Cousins' consent) suspended consideration of her complaint and appointed an Authorised Officer, a Mr P Hansar to determine whether disciplinary charges should be laid against the applicant. Mr Hansar engaged a firm in Canberra, Quality Management Solutions (whose principal is Mr P Grills) to investigate the allegations made by Ms Cousins of misconduct on the part of Mr Vickers, the applicant. Mr Grills' firm was retained for that purpose on 12 February 1999. It appears from the materials filed on behalf of the applicant, that Mr Grills interviewed some 24 persons, including the applicant. Mr Grills interviewed the applicant on 18 February 1999 and on 15 March 1999, through his solicitors, the applicant supplied a signed statement to Mr Grills. Later that month, Mr Grills submitted to the Department an 18-page report. A copy of that report, together with some 19 attachments was provided to the applicant on a date which has not emerged from the evidence to date. On 11 May 1999, Mr Hansar, who is the Director of Personnel Administration, Australian Capital Territory at the Department of Defence wrote to the applicant advising him that he (Mr Hansar) had charged the applicant with two charges of misconduct which were to be investigated by an inquiry officer. Mr Hansar, in that letter, told the applicant that the officer who had been appointed to inquire into these charges was the respondent. The respondent is Assistant Director, Personnel Practices, Defence Corporate Support Centre – ACT/Southern NSW Region. Enclosed in Mr Hansar's letter were copies of the two charges, described as "Charge A" and "Charge B". Charge A charged the applicant with having failed to fulfil his duty as an officer within the meaning of s 56(f)(i) of the Public Service Act 1922 (Cth) in that between mid-1996 and the first part of 1998 he contravened the provisions of Regulation 8A(e) of the Public Service Regulations. Charge B charged the applicant with having failed to fulfil his duty as an officer within the meaning of s 56(b) of the Public Service Act in that during the same period he engaged in improper conduct as an officer. There appears to be a substantial overlap of the particulars to the two charges, although those particulars are not identical. 4 Mr Hansar's letter of 11 May 1999 also enclosed a document headed "Notice of Charge Under Section 61 and Notice of Inquiry Under Section 62". I incorporate the text of that notice by reference, but I shall not read it out in full this afternoon. The notice advised the applicant that the inquiry would be held by Mr Hanks, the respondent, and informed him that he could state in writing within 14 days whether he admitted or denied the truth of the matters set out in the charges, and might also within that period furnish a further statement in relation to the matter. The notice also informed the applicant that his statement might take the form of a submission that even if the matters set out in the charges were true, they were incapable in law of constituting the misconduct charged, and that if he submitted a written statement, he could also make a further oral statement to the Inquiry if he so requested. 5 It does not appear from the materials filed on behalf of the applicant what steps he took after having received Mr Hansar's letter of 11 May 1999. I was told from the bar table, without objection from the respondent's counsel that: · on 18 June 1999 the respondent informed the applicant that he would not be given an oral hearing which he, the applicant, had requested; · on 30 June 1999 the applicant instructed his solicitors to bring this application; · on 23 July 1999 the applicant's solicitors advised the respondent that the application would be brought; and · on 18 August 1999 they sought an undertaking from the respondent that he not proceed with the inquiry. 6 On 23 August 1999 (i.e. the day before yesterday) the applicant filed the principal application for an order of review. Paragraph 2 of the orders sought read as follows: "2. An order that the respondent be restrained until after the final hearing and determination of this application from proceeding with the inquiry or from making the proposed decision." 7 The principal application is worded, somewhat ambiguously, in the following terms: "Application to review conduct in which the respondent proposed (sic) to engage whereby the respondent proposes to make a decision ("the proposed decision") as to whether the applicant is guilty of having failed to fulfil his duty as an officer of the Australian Public Service within the meaning of section 56(d) and section 56(f)(i) of the Public Service Act 1922 ("the Inquiry")." 8 The grounds of the application are expressed as follows: 1. The respondent does not have jurisdiction to make the proposed decision pursuant to s 6(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). 2. The enactment in pursuance of which the decision is proposed to be made, namely the Public Service Act 1922, does not authorise the making of the proposed decision pursuant to s 6(1)(d) of the Act. 9 It appears from the applicant's affidavit sworn on 23 August 1999, his solicitor's affidavit sworn today and an outline of submissions filed on behalf of the applicant today that the applicant seeks interlocutory relief in two respects. First, he asks this Court to halt the Inquiry. Secondly, he says that the respondent proposes to make a decision "in relation to the Inquiry by Friday 27 August 1999" (i.e. the day after tomorrow). The respondent has filed an affidavit today which suggests that he will not be completing his inquiry by that date, but will do so as soon as possible. The applicant suggests that the respondent is proposing to decide whether the charges are proved and what action, if any, under s 62 of the Public Service Act should be taken in respect of them. For the purpose of today's proceedings I shall work on that assumption, i.e. that that is what the respondent proposes to decide, if not by the end of this week then as soon as practicable thereafter. 10 I turn now to the question whether interlocutory orders should be made in the terms sought by the applicant, namely, halting the inquiry and restraining the respondent from making his decision. The authorities (which I do not intend to revisit) establish that in deciding whether to grant an interlocutory injunction a Court considers two main factors and, depending on the circumstances, may consider other various discretionary matters. The first main factor is whether there is a serious question to be tried. The second main factor is where the balance of convenience lies. The balance of convenience is sometimes, aptly in my opinion, referred to as involving a comparative assessment of the risks of doing an injustice to the applicant by not maintaining the status quo or to the respondent by making orders which maintain the status quo. These two broad factors are not to be assessed independently. A strong case shown on the first test may make up for a relatively weak case on the balance of convenience and vice-versa. 11 In summary, the applicant argues that the process in which the respondent is engaged is fatally flawed. He submits that the relevant inquiry was that which was carried out by Mr Grills and that this was done prior to the applicant being charged, contrary to s 61(2) which requires an inquiry after a person is charged. The steps which the applicant described as a statutory scheme had been, so it was submitted, reversed. The applicant says that the Secretary of the Department of Defence did not make a formal delegation to Mr Grills to carry out the duties of an authorised officer under s 61(2), that the authorised officer relied upon Mr Grills' report in laying the charges and that the respondent as Inquiry Officer is relying upon Mr Grills' report in determining the Inquiry. In oral submissions, Professor Stein, for the applicant, argued that the authorised officer, Mr Hansar, invalidly delegated to Mr Grills the formation of his opinion under s 61(2). To establish the latter proposition the applicant relies on the notice of charge and inquiry dated 11 May 1999 and on paragraph 4 of his solicitor's affidavit where the respondent is alleged to have said: "I have reviewed the papers 3 times and I'm reviewing them again". 12 The applicant says that this is a reference to the statements taken by and the report of Mr Grills. The applicant contends that Mr Grills' investigations should not take the place of an inquiry. The respondent contends that the evidence establishes no such thing, that Mr Hansar was entitled to delegate the investigation and that there is no evidence that he did not form his own opinion as s 61(2) requires. In submissions in reply, Professor Stein said that his client did not dispute that Mr Hansar may have formed the requisite view but that he had invalidly subdelegated various matters, including the investigation carried out by Mr Grills. 13 Emphasising, as I do, that everything which I say today should be regarded as being very much on a provisional basis, I have some reservations about the case advanced by the applicant under this head. It seems to me that it would be quite logical to have an investigation followed by the laying of charges and then an inquiry. The evidentiary basis for the allegation that the respondent is simply reviewing Mr Grills' report and that report only, does not appear to be very strong at this stage. However, I am prepared to accept that there is a serious question to be tried in that regard but my assessment is that the applicant's case is not, on the evidence adduced to date, a very strong one. 14 A further matter which the applicant raises is that the wrong charges have been brought against him. In summary, the applicant says that he was, in respect of all the allegations, acting as a union delegate and was not engaged in the performance of his duties "as an officer". He says that notwithstanding the extension of the meaning of "failed to fulfil his duty as an officer" in s 56(e), it is not open for the respondent to rely upon that extension as "an alternative head of power". The applicant says that he has not been charged under s 56(e) but under ss 56(d) and (f). Neither side has referred to any authority on this point. For the purposes of today's proceedings, I accept that there is a further serious question to be tried in relation to this issue. I now turn to the question of the balance of convenience. 15 I appreciate that if an interlocutory injunction is not issued, then there is a possibility that the respondent will find the charges proved and take action under s 52(6) of the Public Service Act. Of course, it is also possible that the charges will be dismissed. If the charges are found to be proved then I accept, for present purposes, that would constitute a detriment to the applicant. Nevertheless, there are remedies available to him by way of appeal under s 53(d) of the Public Service Act or under s 5 of the Act. The respondent has not contended that there would be prejudice to him if he were restrained from proceeding with the Inquiry and making his decision. On the other hand, should the decision be adverse to the applicant there are, as I have just mentioned, avenues available to him to challenge that decision. 16 This matter of alternative remedies was one which appears to have influenced Spender J in Collie v Behan (1998) 16 ACLC 41 at 46 in refusing interlocutory relief in that case. One relevant question is whether it would be just, in all the circumstances, to confine the applicant to a remedy whereby he challenged any decision reached by the respondent. It seems clear that all of the challenges which the applicant seeks to make in respect of the Inquiry may be made in respect of the respondent's decision, assuming, for the time being, that such decision were adverse to him. The parties, and indeed the Court, would also have the advantage of the respondent's reasons in assessing whether the factual bases relied upon by the applicant and forming the second main ground of his application today had merit in an administrative law sense. As I say, it may be that the decision will turn out not to be adverse to the applicant. In that event, the conduct of full scale administrative law proceedings in respect of the Inquiry would be largely wasteful of both public and private resources. 17 Another important discretionary factor is the delay in bringing this application. The applicant was notified about the Inquiry by letter dated 11 May 1999. I assume that he received that letter a day or so after that date. I do not consider that the matters which Professor Stein had put to me in relation to the events of 18 June, 30 June, 23 July and 18 August 1999 provide a satisfactory explanation of the delay in bringing these proceedings. In fact, as Mr Macliver, for the respondent submitted, as at 18 June 1999, the applicant, far from challenging the respondent's jurisdiction to conduct the Inquiry, was seeking to have the respondent give him an oral hearing as part of that Inquiry. The applicant says that delay is only important if there is prejudice to the other side. I do not accept that the discretion to take into account delay in refusing interlocutory relief is limited in that way. 18 On the basis of the evidence before me to date, it appears that these proceedings (involving, as they do, an application for urgent interlocutory relief) were delayed until the "death knock", a term used by Spender J in Collie. Sometimes delay in making an application for urgent interlocutory relief is regarded as being not so important where matters of public interest are involved. In this case, I consider that there is a public interest in the Inquiry, which appears to have been under way for approximately three months, being brought to a conclusion and a decision made. Section 62(1) itself stipulates that the Inquiry shall be held "without undue delay". There will then be ample scope for the applicant to challenge the legality of any decision, should he so wish. 19 In so far as the applicant seeks to restrain the respondent from making his decision, it seems to me, speaking on an interlocutory basis, that the application is misconceived. Section 6 of the Administrative Decisions (Judicial Review) Act expressly distinguishes between conduct and the making of a decision - a distinction explained at the highest level in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-342. 20 I have not ignored the practical outcome of denying interlocutory relief in this matter. I acknowledge that the practical outcome is that the respondent may complete the Inquiry and make his decision fairly soon. But that is a consequence of the manner in which these proceedings have been brought to this Court i.e. very late in the piece and without any satisfactory explanation for the delay. 21 Given the public interest in the efficient administration of the Public Service Act, the availability of alternative relief if the respondent finds against the applicant and the unsatisfactorily explained delay in approaching the Court I consider that interlocutory relief should be refused. In my view the costs of today should be costs in the cause, but I will hear counsel in that regard. Subject to that, the formal orders which I propose to make are: 1. The applicant's claim for interlocutory relief, as set out in paragraph 2 of his application, be dismissed. 2. The costs of that interlocutory application be costs in the cause - but, as I say, I will hear counsel. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.