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. the proceedings and the objections to competency (a) The earlier application: n315 of 2000 8 The application claims: "Review of the decision of APRA to issue a formal disciplinary warning to me." 9 That is the warning conveyed to Ms Karakus by the letter of 23 September 1998, parts of which I have quoted. It should be noted immediately that the letter is a document setting out the terms of the decision. Ms Karakus' evidence was that she received it by fax "one evening in September 1997" (though she must mean 1998). That means that, under s 11 of the ADJR Act, an application for review of the decision was required to be lodged (subject to the Court's discretion to allow further time) within a period of twenty-eight days after a date no later than 30 September 1998. Unless the Court extends time, the application is incompetent; Ms Karakus has informally sought an extension of time and it will be necessary to consider that aspect of the matter. 10 Before doing so, however, I should mention a document filed by Ms Karakus, with the apparent purpose of complying with O54 r 3(1)(a) of the Federal Court Rules (FCR). That document describes, as "dates of decisions and failure to make decisions", "between May 1998 and ongoing". The same document contains a statement of a number of the administrative law grounds of review upon which Ms Karakus seeks to rely. The first may be taken as an example. It reads as follows: "1. Breach of the rules of natural justice occurred in connection with the making of the decisions under code of conduct provisions of the APRA Certified Agreement." A number of the subsequent paragraphs refer similarly to "the decisions" and "the decision‑makers". But no particular decision is identified (nor was any identified in argument) other than the one referred to in the application; nor is a failure to make any particular decision or any specified conduct. In that respect, therefore, the document takes matters no further than the application. 11 Is this, then, a case in which an extension of time would be appropriate? The considerations are discussed in a judgment of Wilcox J, which is frequently referred to in this context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348‑350. The application was filed on 6 April 2000: slightly less than eighteen months after the expiry of the twenty-eight day period. It cannot be supposed, in the light of the circumstances disclosed by the evidence, that Ms Karakus has not strenuously sought, in the intervening period, to assert what she perceived to be her rights. But it is relevant, and important, to have regard to the likely prospects of the proceeding. The decision complained of occurred in the course of an employment which came to an end a considerable time ago. Other proceedings are on foot in relation to that. During the course of argument, I asked Ms Karakus what she wished to achieve by this proceeding. Her answer was that she wished to have the decision or decisions concerned set aside. But the only decision specified is that to issue a warning letter (which may well not have been, in any event, a final or operative decision). Ms Karakus did not suggest that anything further would follow from an order setting aside that decision, nor can I see that it could have any useful practical result. 12 In short, it is impossible, I think, to avoid the conclusion that it would be substantially futile to grant the relief sought. In those circumstances, it would be wrong to grant an extension of time and thereby permit complex and costly litigation to proceed to no useful end. 13 Nor do I see any justification for granting leave to amend the application. Though I understand that Ms Karakus wishes to have the Court examine, quite generally, the conduct of APRA towards her in relation to her employment, particular events that occurred during it and its termination, no particular decision or conduct leading to a particular decision was identified which might be included in an amended application. There is, therefore, no basis to grant leave to amend. In the absence of an extension of time, accordingly, the application is incompetent and should be dismissed. (b) the second proceeding: n 316 of 2000 14 The application seeks: "1. Review of decision of APRA not to provide copies of documents and information provided to Health Services Australia in a referral to determine my fitness for duty. 2. Review of the conduct of APRA in using a medical assessment conducted for purpose of fitness for duty for purposes of a competence assessment." 15 Again, Ms Karakus has filed a statement which is apparently intended to comply with FCR O 54 r 3(1)(a). As "dates of decisions and failure to make decisions", Ms Karakus has given "September 1997; October 1997; September 1999; November 1999; January 2000; February 2000; March 2000; and ongoing". Again, in the paragraphs stating the grounds of her application, Ms Karakus refers to "the decisions", "some of the decisions" and "some of the purported decisions". She refers also to "decisions under the fitness for continued duty provisions of the Public Service Act, the Public Service Regulations, APRA Certified Agreement and the Administrative Instructions". But again, no particular decisions are specified; nor is failure to make any particular decision, or any conduct engaged in for the purpose of making a particular decision. 16 Ms Karakus suggested, during argument, that she wished to seek review of a decision referred to in par 49 of her affidavit. It is unnecessary to describe that beyond saying that, if it was to be regarded as a decision, it was conveyed to her by a letter dated in the last quarter of 1997. Because the same difficulties would plainly arise in relation to an application to review this decision as arise in the other proceeding, it would be inappropriate to allow an amendment to raise it. I say no more about it, however, because by a facsimile transmission received by my associate on 4 August 2000 Ms Karakus has indicated that she does not wish to pursue par 49, at least in its present form. 17 In my view, it is clear that the application as it stands, supplemented as it has been by the statement to which I have referred and Ms Karakus' affidavit, does not indicate a particular reviewable decision (the description is in very general terms and no hint is given as to a connection between it and any enactment). Equally, no indication is given of how the conduct sought to be reviewed was conduct engaged in for the purpose of making a decision to which the ADJR Act might have applied. 18 It may be (it is impossible to tell on the information I have) that, in this case, no period is prescribed for the making of the application (ADJR Act, s 11(4)). But, if so, a question would arise, under s 11(4)(c), of a very similar kind to that which I have considered in relation to the decision of which the other proceeding seeks review. It is, however, unnecessary to consider that aspect of the matter further. The applicant has not specified a decision or conduct which the Court may review under the ADJR Act and on that basis the application is incompetent. Equally, in my view, no reasonable basis for the application is disclosed: see FCR O 54 r 6. Again, and for the same reasons as those I have given in relation to the other proceeding, there is no basis on which to grant Ms Karakus leave to amend. CONCLUSION 19 The reasons I have given lead to the conclusion that in each matter the objection to competency succeeds. They show equally that no useful purpose would be served by an adjournment. Each application for review is dismissed as incompetent. In each case, APRA seeks an order for payment of its costs. However much Ms Karakus considers herself aggrieved by APRA – and whether or not her views about that are justified – these proceedings were, in my view, bound to fail. In those circumstances, there is no reason to refuse APRA's application for an order for payment of its costs. Accordingly, in each matter, I order that the applicant pay the respondent's costs of the proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. Associate: Dated: 11 August 2000 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: K L Eastman Solicitor for the Respondent: Baker & McKenzie Date of Hearing: 3 August 2000 Date of Judgment: 11 August 2000