Anne Susanne Bengtsson and Australian Taxation Office [1994] IRCA 107

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 924 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: ANNE SUSANNE BENGTSSON Applicant A N D AUSTRALIAN TAXATION OFFICE Respondent Reasons for Judgment 2 November 1994 PARKINSON JR This application is made by motion on notice by the respondent for orders that the application made by the applicant pursuant to S170EA of the Industrial Relations Act 1988 (Cth) ("the Act") be summarily dismissed pursuant to Order 20 r. 2(1)(a) as disclosing no reasonable cause of action. Counsel for the applicant submitted that this was not a matter which ought be determined summarily, and relied upon various authorities to the effect that in circumstances where the issue is open to argument it is not appropriate to summarily dismiss. I was referred to the decision of Barwick C.J. in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 wherein his Honour the Chief Justice gave detailed consideration to the circumstances in which it is appropriate to deal summarily with an action. In that case an application was made that the proceedings had been initiated frivolously, vexatiously and without reasonable cause. The Chief Justice said (at pages 128-129): " The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion." In the present case there is no dispute between the parties as to the factual situation. There is a substantial argument going to the jurisdiction of this court to hear and determine this matter, and the entitlement of the applicant to bring the proceedings. This is not a case where the outcome of the summary application may be affected or altered by the facts at trial, nor is it a case where there is any other reason why it would be sensible or appropriate to put the applicant or the respondent to the complete cost of trial prior to determining the jurisdiction point. There is nothing in the application before me which would justify a finding that the material before me is incomplete, nor that I have not been given the necessary assistance by the parties to reach a definite and certain conclusion on the matters contained in the application which is before me. I therefore proceed to determine the respondent's motion on notice. The termination of the applicant's employment with the Australian Public Service was effected as a result of a decision of a Disciplinary Appeal Committee to uphold a direction of the delegate of the Secretary of the Australian Taxation Office that she be dismissed. The direction that the applicant be dismissed was made as a result of the applicant's conviction for various criminal offences under federal taxation and social security legislation, and consideration by the relevant Secretary of those convictions pursuant to S63(1) of the Public Service Act 1922 (Cth). The respondent submitted that the applicant, having been a member of the Australian Public Service, had available to her an adequate alternative remedy of the nature set out in S170EB of the Industrial Relations Act. The remedy contended for by the respondent was that of the appeal available to the applicant to the Merit Protection Review Agency in respect of a decision made to terminate the applicant's employment. In this case the applicant had, in fact, already had recourse to that review process prior to the filing of her application pursuant to S170EA of the Act. The respondent also contends, further and in the alternative, that the processes provided for by legislation in the Public Service Act and the Merit Protection (Australian Government Employees) Act 1984 (Cth), being earlier in time than the Industrial Relations Reform Act 1994 (Cth) which established the proceedings pursuant to S170EA, ought be read as being subject to the maxim generalia speciabilus non derogant. The submission is that, because there is specific provision in the Public Service Act covering the same or similar matters to those provided for in the Act, that the Public Service Act provisions should not be treated as being overridden by the more general provisions of the Act. If this were the case, then the respondent submits that the provisions of Division 3 Part VIA of the Act would not apply to the applicant's employment in the Australian Public Service. In considering the above matters, it is appropriate to set out the relevant provisions of the Public Service Act and the Merit Protection (Australian Government Employees) Act. It should be noted that the sections are reproduced in full, and that the numerical sequence which appears below is that contained in the relevant Act. Public Service Act 1922 S63 (1) provides in so far as presently relevant: "63. (1) Where : (a) a court has, after 15 September 1980, convicted an officer of a criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and (b) the relevant Secretary, after giving the officer an opportunity to furnish to him, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, he is justified in so doing in the interests of the Service; the relevant Secretary may counsel the officer or may: (c) direct that there be taken, in respect of the officer, action by way of: (i) transferring the officer to a specified office (whether or not at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him; or (ii) transferring the officer to a specified office (whether or not at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or (d) direct that the officer be dismissed from the Service. (4) Where the relevant Secretary gives a direction of a kind referred to in paragraph (1) (c) or (d) in respect of an officer, he shall furnish to the officer particulars of his reasons for giving that direction. (5) A direction under this section in respect of an officer takes effect: (a) if the officer has no right of appeal against the direction - on the day on which the officer is furnished with particulars of the reasons for the giving of the direction; or (b) if the officer has a right of appeal against the direction and appeals - on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first; or (c) in any other case - at the end of the period within which the officer may appeal against the direction to a Disciplinary Appeal Committee." Section 63D provides for appeals against a decision made pursuant to S63 as follows: "63D.(1) ... (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 (ii) that the action directed to be taken in relation to the charge is unduly severe; or (b) in any other case - on the ground that the action directed to be taken in respect of him is unduly severe. (3) A Disciplinary Appeal Committee shall hear each appeal submitted to it under subsection (2) and may confirm, vary or set aside the decision against which the appeal is made. (4) Where a decision in respect of an officer is varied by a Disciplinary Appeal Committee in such a manner as to direct the taking of action of a kind referred to in paragraph ... 63 (1) (c), the direction takes effect in respect of the officer immediately it has been given."