Karakus v Australian Prudential Regulation Authority [2000] FCA 1129

FEDERAL COURT OF AUSTRALIA

Karakus v Australian Prudential Regulation Authority [2000] FCA 1129 ULGEN KARAKUS v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY N 315 OF 2000 N 316 OF 2000 LEHANE J 11 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 315 OF 2000

N 316 OF 2000

BETWEEN: ULGEN KARAKUS

APPLICANT

AND: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

RESPONDENT

JUDGE: LEHANE J

DATE OF ORDER: 11 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

In proceeding N 315 of 2000:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

In proceeding N 316 of 2000:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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 N 315 OF 2000

N 316 OF 2000

BETWEEN: ULGEN KARAKUS

APPLICANT

AND: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

RESPONDENT

JUDGE: LEHANE J

DATE: 11 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Ms Karakus, has commenced two proceedings against the respondent (APRA) in which she seeks judicial review of certain decisions and conduct under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In each proceeding APRA has filed and served a notice of objection to competency, and it is with those objections to competency that I am now principally concerned. However, Ms Karakus, who is not legally represented, has informally sought leave to amend her applications and extensions of time, to the extent necessary, under s 11(1)(c) of the ADJR Act. Should I come to the view that there is substance in the objection as to competency, she also seeks an adjournment to enable her to seek legal advice, to lead further evidence and to make additional submissions. 2 Both parties sought to read affidavit evidence on the objections to competency. The affidavit which counsel for APRA sought to read was that of James Russell Cullen, sworn on 30 June 2000. Mr Cullen is the Workplace Relations and Remuneration Manager of APRA. Ms Karakus sought to read her own affidavit dated 3 August 2000. At the time of the hearing it was unsworn, but it has since been sworn and filed. Much of each of the affidavits is, in my view, inadmissible even in interlocutory proceedings. In the case of Ms Karakus' affidavit, that is, no doubt, understandable and not surprising. Ms Karakus did not object to Mr Cullen's affidavit, or any particular paragraph of it, but there are nevertheless difficulties with it, particularly in the form of unattributed hearsay and evidence of the content of documents in circumstances where there is no suggestion that the documents themselves are not available. It might well be that a represented party would have taken the attitude that it was convenient in the circumstances that Mr Cullen's affidavit take the form it does and would not have objected to it being read in whole. There are obvious difficulties, however, where the applicant is unrepresented and where (as discussion before me made all too clear) there is substantial dispute about several aspects of the facts. 3 Fortunately, for reasons which will become evident, I do not think it is necessary for me to work through the affidavits in detail, indicating which parts are admitted and which are not. The following matters are, I think, established by the evidence and not, in any event, in contest. 4 Ms Karakus was, before 1 July 1998, employed by the Insurance and Superannuation Commission (ISC). According to Mr Cullen's evidence, her employment commenced on 13 October 1993. That precise date, however, does not matter. On 1 July 1998, APRA was established by virtue of the Australian Prudential Regulation Authority Act 1998 (Cth) and the Finance Sector Reform (Amendments and Transitional Provisions) Act 1998 (Cth). Under that legislation (or action taken in accordance with it) APRA assumed the functions, among others, previously performed by ISC, and employees of ISC became employees of APRA. Thus, on 1 July 1998, Ms Karakus become an employee of APRA. 5 There were difficulties in relation to Ms Karakus' employment, first by ISC and then by APRA, commencing at least as early as the first half of 1997. I use the term "difficulties" as a neutral word. It is unnecessary, and on the evidence impossible, to form any clear or complete view of what they involved. Ms Karakus had a number of consultations with medical practitioners, some at least of which were arranged by her employer. There were periods when she was unable to attend work; there was a period during which she worked part‑time performing duties at what Mr Cullen described as a "lower level". On 23 September 1998, the Executive General Manager of APRA wrote to Ms Karakus. The stated purpose of the letter was to "advise you of the outcome of the recent investigation of your behaviour". The letter informed Ms Karakus that it was "to be taken as a formal warning that your behaviour during the period 4 May 1998 and 20 May 1998 was unacceptable" and "that similar action would be a breach of the APRA Code of Conduct and may result in further action being taken against you, including reduction in pay and/or classification level or possibly dismissal". Further correspondence and documents (none of which are in evidence) passed between the parties. On 4 June 1999, Ms Karakus' employment with APRA came to an end: according to Mr Cullen's evidence, "APRA retired the Applicant on the basis of her incapacity on 4 June 1999". 6 There have been a number of proceedings between Ms Karakus and APRA, some of which are still on foot. One of those is an application for relief under s 170CE of the Workplace Relations Act 1996 (Cth) on the ground of unfair termination of employment; another is a proceeding in this Court alleging discrimination in contravention of the Disability Discrimination Act 1992 (Cth); a third is an appeal to the Administrative Appeals Tribunal in relation to a claim for workers' compensation. I do not know whether that is a complete list, and for present purposes it does not matter. It is evident that Ms Karakus believes that she has serious grievances against APRA and is devoting considerable energies towards seeking redress. The present proceedings are part of that process. 7 That, I think, is sufficient background for a consideration of the objections to competency.