Lucic v Nolan

45 ALR 411
1982 - 1101B - FCA

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(Judgment by: Fitzgerald J)

Between: Lucic
And: Nolan

Court:

Judge:
Fitzgerald J

Subject References:
Administrative law

Hearing date: 26 October 1982
Judgment date: 1 November 1982

Brisbane

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Judgment by:
Fitzgerald J

On or about 13 February 1981, the applicant, who was then a Clerk Class 1, in the Buranda (Brisbane) Office of the Department of Social Security on temporary transfer to the Public Service Board's Brisbane office, was charged by the Chief Officer of the Department of Social Security in Brisbane with two instances of alleged improper conduct under s.55 of the Public Service Act 1922. The substance of what was alleged against the applicant was that, at the Personnel Section of the Department, he threatened one officer on 5 February 1981 and on 6 February 1981 he described another officer as "a two-faced bitch". Each notice of charge required the applicant to state whether he admitted or denied the charge and to give any explanation.

The applicant wrote a letter dated 24 February 1981 denying the charges. He claimed that, during the week commencing 3 February 1981, he was in a state of severe depression and anxiety due to frustration with his employment. It is plain from his letter that, on both 5 and 6 February 1981, he was intoxicated when he attended the Personnel Section of the Department. He said that he could not remeber making the statements which led to the charges. Elsewhere, he acknowledged that his "recollection of most events during that period is dull at best". He said that his attendance at the Personnel Section "was symptomatic of my obsession with my employment and the damaging effect it was having on me psychologically. A need being to extricate myself from the morass I was in and make a fresh start. This would explain any aggressive posturing on my part when I spoke to staff of the Personnel Section". Later in his letter he said that if he did make the statements "this would simply have been the manifestation of a fevered imagination". His denial of the offences was expressly founded upon the contention that he did not "knowingly and deliberately" commit them. Rather, according to the applicant:

"If the allegations are true the incidents which are the subject of the allegations are symptomatic of the psychological trauma I have been going through and not the result of any deliberate misconduct on my part."

The applicant's letter concluded with the following paragraphs:

"If the allegations of threats and abuse are true and verifiable, I extend my apologies to both Miss Ockenfels and Ian McDonnell. I think that both would be sufficiently mentally mature to appreciate that there would have been nothing personal in my actions, but that those actions were simply manifestations of my difficulties. I also extend my apologies to yourself as Chief Officer for any inconvenience caused."

The applicant's letter also revealed the unusual fact that, for reasons which he explained, he had adopted a different name at the premises where he resided from that by which he was known at work.

By letter dated 13 March 1981, the then Chief Officer of the Department of Social Security in Brisbane wrote to the applicant stating that he had considered the applicant's response but had found the charges proved. Notices of punishment and copies of the provisions of the Public Service Act and Regulations which were said to outline the applicant's appeal rights were attached. Punishment in respect of each of the charges was a recommendation to the Public Service Board that the applicant be dismissed from the Commonwealth Public Service.

The first respondent in the current proceedings is the present holder of the position of Chief Officer of the Department of Social Security in Brisbane. The applicant seeks to have reviewed the decisions to charge him and to sustain such charges and recommend his dismissal. The given bases for the application to review these decisions are somewhat puzzling. Counsel who appeared for the applicant on the present application by which the applicant seeks to have the time extended under sub-s. 11(3) of the Administrative Decisions (Judicial Review) Act 1977, who was not the counsel who drew the Application for Review, was not able to explain the applicant's complaint in respect of the decisions of the first respondent, but indicated that what is stated in the Application for Review does not seem to accord with an opinion which had been obtained from counsel previously retained by the applicant.

In March 1981, by notices addressed to the Director of the Department of Social Security, Brisbane, the applicant appealed from the decision of the Chief Officer of the Department that he was guilty of the charges and recommending his dismissal on the ground that he was innocent of the charges and that the punishment was excessively severe.

The second, third and fourth respondents are the members of the Disciplinary Appeals Board who heard the applicant's appeal on 22, 23 and 24 April 1981. The applicant seeks to have reviewed their majority decision, handed down on 22 May 1981, that he was guilty of the offences. His Application for Review makes no reference to their recommendations for his dismissal. His claim to have their decision that he was guilty of the offences reviewed is related to the course of proceedings before the Disciplinary Appeals Board (when the applicant was unrepresented), including material placed before the Board. That material, according to the applicant, included details of his criminal record and of previous occasions when he had been departmentally punished.

Counsel who appeared for the applicant on the present application for an extension of time submitted that it is inappropriate to have regard, on such an application, to the merits of the substantive application for review. I will have something more to say of that question later. Certainly, in this matter, the material presently available is considerably less than would likely be available at the final hearing if time were extended and the application for review proceeded. However, there are some matters in the applicant's own material in support of his application for a review which deserve to be noted, particularly in view of the terms of the applicant's letter of 24 February 1981 and the fact that it is apparent from the Board's decision, including the dissenting member's reasons, that the Disciplinary Appeals Board had evidence that the appellant made the statements which gave rise to the charges. Indeed, nowhere in the documents filed in this Court does the applicant deny that he made such statements. His principal affidavit in support of his application for review includes the following paragraphs:

"(12)

I recall making most of my defence to the Charges on the basis that on the dates alleged to be the dates that I committed the offences, I was on Sick Leave and therefore not on duty and insofar as the incidence set out in Charge A and Charge E, I could not remember any of the details at all, as I was then undergoing what I refer to as a Bender. A bender is when I was drinking substantially and I would have a bottle of beer for breakfast and walk to work arriving there sometime around 10.30 a.m. to 11.00 a.m., and I would have two (2) or three (3) rums at hotels on the way to my place of employment, and then at lunch I would spend two (2) hours at a Hotel and would have then some ten (10) rums and after work I would then have a further fifteen (15) or so rums. Whilst I was on sick leave, in early February, I was drinking more as I was not on duty and I would say that I was incapable of knowing what went on around me or what I said.

(18)

By the end of the hearing of my Appeal, I really felt that I had not been given a fair hearing due to the fact that I was not represented and that matters went on which were not explained.

(19)

It is my belief that I was not guilty of any of the charges laid against me, and I desire to have the matter reviewed by this Honourable Court."

Another matter which emerged from an extract from the transcript of the proceedings before the Disciplinary Appeals Board, which was put before me by the respondents, was that the applicant was then aware that, if the Disciplinary Appeals Board proceedings went against him, he might be able to come to this Court "on a legal tactic", as the applicant himself described it.

The applicant took no step to question the first respondent's decisions other than to appeal to the Disciplinary Appeals Board. He took no step to question the Disciplinary Appeals Board decision when it was handed down in May 1981, or indeed for a period after he was dismissed from the Australian Public Service by decision of the Public Service Board of 7 September 1981 of which he was informed in mid-September 1981. The fifth to seventh respondents in the present proceedings are the members of the Public Service Board. Broadly the Public Service Board's decision is alleged to be infected by the defects said by the applicant to have attended the proceedings of the Disciplinary Appeals Board.

At the time the applicant was dismissed from the Australian Public Service in September 1981 he was under suspension in relation to other matters. He has sworn that when the decision of the Disciplinary Appeals Board was handed down he understood and still believes that it amounted to no more than a recommendation "to higher authority in Canberra as to my dismissal from the Australian Public Service" and that he "Accordingly . . . did not think any action on my part with regard to an appeal or a review from the Board's decision would be possible or appropriate until a decision from Canberra as to my dismissal or otherwise". Further, and perhaps inconsistently, when he learned of the Public Service Board's decision, he claims to have been distressed by his dismissal and says that he went to Sydney to stay with friends where he was told that he had the right to apply for legal aid and seek legal advice as to his rights.

Notwithstanding what he says he was told in Sydney, the applicant did nothing until he returned to Brisbane in early November 1981. He then consulted a firm of solicitors. Still nothing was done beyond an application for Legal Aid. In late November 1981, legal aid was granted to enable an opinion to be obtained from counsel as to the prospects of success on an application to this Court in respect of the proceedings of the Disciplinary Appeals Board. A brief was not delivered to counsel until 25 February 1982. His opinion became available on 13 May 1982. According to the applicant he knew nothing of a time limit even then. The articled clerk who was apparently permitted by the applicant's solicitors to have conduct of the matter says that he, the articled clerk, knew nothing of a time limit until counsel's advice was received on 13 May 1982.

Even after counsel drew attention to the time limitation (which had long since passed) there was no panic. Further legal aid was sought on 20 May 1982. A certificate providing legal aid for the institution of the present proceedings was received on 25 June 1982. A brief to counsel to draw the material in respect of an application to this Court was delivered on 9 July 1982. Notwithstanding the known time limitation, no further step was taken until 17 August 1982 when a conference took place at counsel's request. It is said that neither the applicant nor counsel was available prior to that date. The settled material was made available by counsel on 18 August 1982. The application for a review and an affidavit by the applicant were engrossed on 25 August 1982, on which date the applicant attended the office of his solicitors and swore the affidavit. It was not until 8 September 1982 that the Application and affidavit were filed. According to the applicant, it was only in September 1982 that he was advised by his solicitors that there was a time limitation upon the making of the Application for Review. The Application filed sought not only the review of the various decisions of the respondents but an extension of time for the making of the Application.

At an initial directions hearing on 23 September 1982, there was considerable confusion. As a result of that hearing, the names of the respondents were amended on 6 October 1982 and, on 15 October 1982, the solicitors for the applicant filed the application now before me which again requests an extension of time.

The applicant has sworn that he has good grounds for his application for review. Further, he has sworn that he "did not have sufficient funds to immediately commence an enquiry as to my rights", and expressed the opinion that he has adequately explained the reasons for his delay in not applying within the respective periods of 28 days from each of the decisions which all parties agree was permitted by s. 11 of the Administrative Decisions (Judicial Review) Act. It seems that he now has legal aid to pursue both his application for an extension of time and his application for a review of the various decisions if time is extended.

The gross salary entitlement of a person occupying a position of Clerk Class 1 from September 8, 1981 to August 25, 1982 was $14,213.28. The applicant offered to accept as a condition of the extension of time which is now sought an obligation to waive his entitlement to arrears of salary in the event of his success on his application for a review of the decisions.

In Riordan v. Parole Board of the Australian Capital Territory (1981) 34 ALR 322 , Lockhart J. at p.327 referred to the triad of Commonwealth legislation, of which the Administrative Decisions (Judicial Review) Act is one part, which provides machinery for review of administrative decisions and actions of Commonwealth ministers, officials, and statutory bodies. It seems broadly accurate to say that there is a legislative intention that certain standards are to be observed in respect of such decisions and actions. However, that is not the only public interest to be served. Other matters of proper public concern which are readily identifiable as relevant to the review of administrative acts and decisions include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds, and also, where what is in question involves promotion and discipline in the Australian Public Service, the orderly administration of that vast body. Further, the impact of an act or decision is often not confined to a particular individual who is adversely affected and wishes to challenge it; a contest for promotion is an obvious example.

The legislation contains various mechanisms to allow these different policy considerations to be balanced. Thus, for example, one of the features of the Administrative Decisions (Judicial Review) Act is that it contains limitations with respect to the time for the commencement of proceedings. Where specific periods are fixed, they are quite short. That carries obvious implications. However, the time limitations are not absolute. In this, as in other matters arising under the Act, e.g. in respect of the relief which may be granted under s 16, the Court is given a discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained. In this respect, there is an obvious contrast between the terms of sub-s. 11(3) which provides a pre-emptive fixed period subject to a discretionary power of extension, and provisions like that of sub-s. 11(4) which do not fix any particular period but refer merely to what is in the court's opinion "reasonable".

I do not think that the Court, in exercising its power to make exceptions in appropriate cases, should confine its attention to the consequences to the applicant of a refusal to extend time. Justice, as the ultimate object to be obtained by the exercise of the discretion, seems to me to require that regard be had to broader considerations than merely the interests of the applicant. Further, whilst there will be some matters which are relevant to the question whether time should be extended (in ordinary litigation inter partes) which are also relevant in this context, it seems to me likely that the overlap is only partial and that different emphasis is appropriate to some of the common factors. It may be that exceptional circumstances need not always be shown before time can be extended. However, I consider that an applicant for an extension of time maintains throughout the burden of showing why, in all the circumstances, the extension of time should be granted. I do not think that, given proof of certain matters by an applicant, e.g. an explanation for his delay in making application, an evidentiary onus shifts to the respondents to establish that prejudice will result if the extension is granted; nor, in my opinion, if the delay is explained and there will be no personal prejudice to the named respondents, should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision maker.

It is neither necessary nor desirable, if indeed it would be possible, to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes: cf. sub-ss. 11(4) and (5). Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out.

In view of the conclusion at which I have otherwise arrived, it is unnecessary to consider the present application for an extension of time on the basis that the applicant did make the statements upon which the charges were founded and that he would, unless one of his excuses afforded an answer, inevitably be found guilty and dismissed on a re-hearing, although I am not convinced that such an approach would be improper. Further, I have been prepared to assume in the applicant's favour that a condition such as that which he offered might be validly and effectively imposed although, of course, the effect of reinstating the applicant to the date of his dismissal would have consequences in respect of seniority, superannuation, recreation leave, and sick leave as well as arrears of wages. I have also noted the submission on behalf of the applicant that, although the delay of his lawyers is relevant, he ought not be held fully responsible for their conduct. Again there is no need to pursue the correctness of that view. There is ample evidence of the applicant's total failure to take any step, even go to his solicitors, within 28 days after any of the decisions which he now seeks to call in question.

There seems to me no need to undertake a detailed analysis of the circumstances which I have set out above. There is absolutely no feature which, in my opinion, provides any support for the application that time be extended. In my opinion, absolutely no explanation whatever was provided by the applicant for the inordinate and inexcusable delay which occurred, both before and after he consulted his solicitors. If, as he claims, he laboured at any time under a misapprehension as to the detail of his statutory rights or as to the conditions upon which they were exercisable, the fault is entirely his own and stems from neither more nor less than his erratic and careless conduct.

Although in the event it does not matter, I am quite unpersuaded that an absence of Legal Aid at any time impeded the relatively formal step of the filing of an application which could later be expanded (sub-s. 11(6)). Indeed, I doubt whether the legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any delay in obtaining a grant of Legal Aid, except in exceptional circumstances. It seems to me that, in general at least, it is for the Legal Aid Commission to meet times fixed by statute or by the Courts rather than for an absence of Legal Aid to provide an excuse for non-compliance.

In my opinion, the application for an extension of time, even if properly made out of time (cf. Duff v. Freijah, unreported judgment of Northrop J., August 1982) should be dismissed. Subject to any further argument which the applicant wishes to address, the Application for Review should also be dismissed by reason of the refusal of the extension of time. The applicant must pay the taxed costs of these proceedings.