FEDERAL COURT OF AUSTRALIA

Rahman v Commissioner of Taxation [2018] FCAFC 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Order 3 made on 22 September 2017 be set aside and in lieu thereof it be ordered that the applicant pay the first respondent’s costs of and incidental to the interlocutory application filed 13 April 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    On 2 September 2015, the Commonwealth dismissed Fahmid Rahman as a public servant employed under the Public Service Act 1999 (Cth). He had worked in the Australian Taxation Office (ATO) as a full time employee until his dismissal.

2    Mr Rahman has appealed from two decisions of the primary judge to dismiss his two separate proceedings below. Mr Rahman brought one proceeding below against the Commonwealth, as represented by the ATO, seeking orders quashing decisions of respectively a Deputy President and the Full Bench of the Fair Work Commission made under the Fair Work Act 2009 (Cth) in respect of his claim to have been unfairly dismissed (the Fair Work proceeding). He brought the second proceeding below against the Commissioner of Taxation, seeking to quash eight decisions of a disciplinary character that preceded his dismissal either under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) or by a writ of certiorari pursuant to the Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (the disciplinary proceeding). We shall deal with each appeal in turn.

The Fair Work proceeding appeal – background

3    The central issue in the Fair Work proceeding appeal related to the primary judge’s decision to refuse Mr Rahman’s application that he foreshadowed in an email to his Honour’s chambers late on 5 April 2017 to reopen the final hearing, which had concluded earlier that day when his Honour reserved judgment. During the hearing Mr Rahman was represented by pro bono counsel who was different from counsel who has represented him, competently, in the appeals today.

4    In the Fair Work proceeding, Mr Rahman sought Constitutional writ relief against decisions of the Deputy President in Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2016] FWC 4575 and the Full Bench, that refused him permission to appeal and, in doing so, dismissed his appeal from that decision (Rahman v Australian Taxation Office [2016] FWCFB 7677).

5    The proceedings in the Commission concerned Mr Rahman’s claim that the decision of his employer to dismiss him, based on a finding that he breached the APS Code of Conduct, should be set aside and that he should be reinstated to his employment. Mr Rahman sought that remedy because he claimed to have been unfairly dismissed within the meaning of ss 385 and 390(1)(b) of the Fair Work Act.

6    Relevantly, s 385 provided that a person who sought a remedy based on his or her being “unfairly dismissed” had to satisfy the Commission that his or her dismissal was “harsh, unjust or unreasonable” (s 385(1)(b)). The Commission had to take eight considerations into account in considering whether it was so satisfied under s 387, including “(h) any other matters that the FWC [i.e. the Commission] considers relevant”.

7    The Deputy President found that Mr Rahman had sworn an affidavit, in February 2012, in proceedings that he had commenced in the Federal Circuit Court in May 2011 challenging an earlier decision of the ATO, in which he said that he had submitted “a dummy application” for a position in the ATO, using a different name, that included his curriculum vitae in an attempt to see whether the ATO was discriminating against him personally.

8    As a result, the Deputy President found that Mr Rahman had made a false application on that one occasion. He also found that, after the ATO had made a full investigation of all relevant matters, it was reasonable in the circumstances for it to decide, as it did, to terminate Mr Rahman’s employment. The Deputy President found that there had been no “condonation” of Mr Rahman’s conduct by the ATO before it dismissed him, even though it did not begin the process to dismiss him for over a year after Judge Driver had found that he had made the false job application.

9    In his appeal to the Full Bench, Mr Rahman’s counsel accepted that he had the onus of persuading it to grant him permission to appeal under ss 400 and 604 of the Fair Work Act. These sections required Mr Rahman to establish that the Deputy President’s decision both “involved a significant error of fact” (s 400(2)) and that it was in the public interest to grant him leave to appeal (ss 400(1) and 604(2)).

10    The Full Bench’s written decision set out briefly the nature of the issues between the parties. It summarised the decision of the Deputy President and the substantive submissions of counsel on the leave application. It noted that the powers of the Full Bench were only exercisable if there was an error on the part of the primary decision-maker and that it had to be satisfied of the matters in ss 400 and 604(2) before it could grant that permission. It noted that it would rarely be appropriate to grant permission to appeal unless an arguable case of appellable error were demonstrated. The Full Bench found that the Deputy President had conducted a detailed forensic examination of the evidence before him, and that his task had been to determine the relevant issues on that evidence and provide sufficient reasons for his determination. It found that he had done so in what appeared to be an orthodox manner. The Full Bench said that it was unable to identify an arguable error of fact or law in the Deputy President’s decision, was not satisfied that there was any public interest in granting permission to appeal, and for those reasons dismissed the appeal.

11    In preparation for the final hearing before the primary judge, the appellant was able to secure the services of counsel who had undertaken to deal with his matter on a pro bono basis. Subsequently, in support of his application for leave to reopen, the appellant swore an affidavit on 13 April 2017 in which he said that his pro bono counsel had drafted a statement of claim that had abandoned all of the points on which he had originally sought to challenge the decisions of the Deputy President and Full Bench.

12    The points that he later sought to re-agitate, had been, in substance, that first, the Deputy President erred in finding that, by its delay in dealing with his admittedly false job application, the ATO had not condoned his conduct on which it later acted to dismiss him, and secondly, in refusing permission to appeal, the Full Bench had descended into the merits of the appeal without hearing him, contrary to its obligations as illustrated in cases such Gregory v Qantas Airways Ltd (2016) 241 FCR 72.

13    In his affidavit of 13 April 2017, the appellant said that he only became aware, on or about 28 March 2017, that his pro bono counsel proposed to abandon those arguments that had been previously pleaded. He said:

I did not wish him to do so but in the circumstances I felt that I was in no position to resist the change in the conduct of the matter.

14    Mr Rahman said that he did not say anything to his pro bono counsel about his concerns before or in the course of the hearing:

but after the conclusion of the proceedings on 5 April, I continued to hold the view that the matters ought not to have been abandoned and accordingly wrote (as I now know improperly) to the Court seeking to “adjourn” the proceedings, but in effect seeking to reopen my case.

15    On 5 April 2017, on the afternoon after his Honour had reserved judgment, Mr Rahman had sent an email to his Honour’s chambers directly seeking in effect to reopen.

The Fair Work proceeding appeal – the primary judge’s decision

16    The primary judge found, and this is not challenged on appeal, that the claim as reformulated by Mr Rahman’s pro bono counsel should fail, and therefore the originating application ought be dismissed, subject to the fate of the application to reopen. His Honour adverted to the appellant’s affidavit of 13 April 2017 and written submissions made by counsel who now appears for him (who also had appeared in both proceedings before the Commission) in support of the application to reopen. His Honour noted that the new case was that the Full Bench effectively determined the appeal, rather than decide whether Mr Rahman should have permission to appeal, thus denying him procedural fairness, and it failed to exercise its jurisdiction in determining that there was no appealable error in the decision of the Deputy President.

17    His Honour accepted the Commonwealth’s submission that leave to reopen ought not be granted. He referred to the fact that the arguments which the appellant sought to run on the reopening had been abandoned prior to the hearing by his then pro bono counsel, and that the appellant knew of this throughout the period between 28 March 2017 and the conclusion of the hearing on 5 April 2017. As his Honour said, notwithstanding that knowledge, Mr Rahman gave no evidence about what, if anything, he had sought to do in that one week period before the hearing, to ensure that his pro bono counsel ran the arguments contained in his abandoned statement of claim. His Honour found that the pro bono counsel was competent and experienced, and that, having regard to s 37M of the Federal Court of Australia Act 1976 (Cth), there were no exceptional circumstances, such as would justify the Court exercising its power to permit a reopening after judgment had been reserved. The primary judge found that there was no proper reason to depart from the principle that a party to litigation should be bound by the conduct of his or her legal representatives, and, also:

perhaps more importantly in this case, the additional grounds and arguments sought to be advanced have not been shown to be other than utterly devoid of merit.

18    His Honour accepted that the Full Bench may have delved into the merits to the extent necessary to determine whether permission to appeal should have been granted, but that, on a fair reading of both the decisions of the Deputy President and the Full Bench, Mr Rahman’s asserted errors of fact were baseless. His Honour also noted, for completeness, that the case advanced on Mr Rahman’s behalf at the hearing was the best available to him, and that the fact that it had failed did not suggest that it had not been competently argued. Rather, as his Honour said, the case itself was flawed. For those reasons, he refused leave to reopen and dismissed the Fair Work proceeding with costs.

The costs order in the Fair Work proceeding appeal

19    Mr Rahman also appealed against the order that his Honour made for costs in the Fair Work proceeding. The Commonwealth conceded that his Honour had overlooked the effect of s 570 of the Fair Work Act, and that no allegation had been made, much less a finding arrived at by his Honour, that attracted jurisdiction to make a costs order against Mr Rahman under that Act. The appellant accepted that he should pay the costs incurred in respect of his application to reopen before his Honour. In those circumstances, we will order that his Honour’s order that Mr Rahman pay the costs of the Fair Work proceeding be set aside and, in lieu that Mr Rahman pay only the costs of his interlocutory application to reopen after his Honour reserved his decision.

The Fair Work proceeding appeal – the appellant’s submissions

20    The appellant submitted that, in substance, the decision of the Deputy President was affected by jurisdictional error, in that he had failed to address a claim that Mr Rahman had made, namely, that the ATO had condoned, in the sense of waived, its right to terminate his employment based on his having submitted the false job application in 2011. That was, he argued, because the ATO continued his employment without taking any action against him for such a long time that it must have waived any wrongdoing by the time that it ultimately commenced the disciplinary proceedings against him in March 2015, which subsequently led to the termination of his employment on 2 September 2015.

21    The appellant argued that because of the Full Bench’s refusal of permission to appeal, the operative decision, for which he sought a Constitutional writ of certiorari, was the decision of the Deputy President, as opposed to the decision of the Full Bench. But, if that were wrong, he contended that the Full Bench’s decision was also affected by jurisdictional error, in that it had delved into the merits, when its function and the hearing had been limited to considering his claim for the purposes of granting or refusing permission to appeal.

22    Finally, the appellant argued that his Honour erred in finding that there was no merit at all in any of his arguments. That was because he contended that the Deputy President failed properly to consider the condonation point. He argued that there would be substantial injustice to him if leave to reopen were not granted and that his Honour ought to have granted that leave as well as the amendment, with the consequence that, in substance, his application for judicial review ought to have succeeded.

The Fair Work proceeding appeal – consideration

23    A decision to permit a party to reopen his, her or its case after judgment has been reserved raises a question of practice and procedure. In essence, his Honour’s decision to refuse to allow a reopening was a matter that falls to be considered on appeal, having regard to principles identified by Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P. Brown Male Fashions Pty Limited v Phillip Morris Inc (1981) 148 CLR 170 at 177, where they held that:

appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [1978] V.R. 431 at 440]; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. [(1952) 77 W.N. (N.S.W.) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) [(1946) 46 S.R. (N.S.W.) 318 at 323]:

… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

24    As their Honours observed (148 CLR at 177):

It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

25    Moreover, the primary judge recognised that he was required to consider the overarching purpose of the civil practice and procedure provisions in s 37M of the Federal Court Act.

26    The explanations that Mr Rahman gave, first, for not raising with his own pro bono counsel once he became aware of the abandonment of the points he later sought to agitate, and, secondly, for allowing his pro bono counsel to run the final hearing without further raising those points, were, as his Honour found, unsatisfactory. Mr Rahman is the only person to blame for those points not having been argued at the hearing. There is no basis to relieve him from being bound by his own conscious decision, for whatever reason, not to raise this matter with his pro bono counsel and ask him to argue the points when they could and should have been. As his Honour pointed out, a party is bound by the way he, she or it conducts their case.

27    During the course of argument today his counsel took us in detail to what Mr Rahman asserted amounted to jurisdictional errors in the Deputy President’s decision and that of the Full Bench.

28    We are not persuaded that there is any substance in those arguments. The Deputy President identified, at the outset of his reasons, that the ATO’s reason for terminating Mr Rahman’s employment was that he had both completed and submitted, or was instrumental in the submission of, a false job application, and that, in the proceeding in the Commission, Mr Rahman also had denied taking any such action. The Deputy President said that Mr Rahman therefore had made no submission in respect of remorse or contrition regarding his alleged misconduct and that he sought reinstatement to his former employment under s 390 of the Fair Work Act as a remedy. In those circumstances, when the Deputy President found that Mr Rahman had submitted a false job application, and that that was a valid reason for the termination of his employment, it is unsurprising that the Deputy President found that the termination was not harsh, unjust or unreasonable.

29    Mr Rahman’s argument involved, in effect, interpolating the issue of condonation as a matter to which the Deputy President had to have regard under s 387(h). Mr Rahman did not suggest that the Deputy President erred or omitted consideration of any of the matters which s 387(a)-(g) required him to have regard. The Deputy President was not obliged to have regard to any matter under s 387(h) unless he considered it relevant. And he had regard to the question of condonation, to the extent that he found, as a fact, that the ATO had not condoned Mr Rahman’s conduct. There is no error of law in making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

30    We are not persuaded that it could be argued, in the present circumstances, that the Deputy President committed a jurisdictional error, as alleged, by failing to have regard to what appeared in the material, to which we were taken, to be a somewhat uncertain issue concerning “condonation”, before him. In our opinion, the primary judge’s characterisation of the argument was open to him in the exercise of his discretion to refuse the application to reopen.

31    In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 215 [103] Gummow, Hayne, Crennan, Kiefel and Bell JJ said in relation to an analogue of s 37M of the Federal Court Act:

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by [the analogue to Pt VB] to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. (emphasis added)

32    In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51], French CJ, Kiefel, Bell, Gageler and Keane JJ said that:

Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. (emphasis added)

33    Their Honours went on to say that the evident intention and expectation of an analogue of Pt VB, and in particular s 37M, is that the Court use its broad powers to facilitate the overarching purpose of the civil practice and procedure provisions in the Federal Court Act (and its analogues) and added (250 CLR at 323 [56]-[57]):

Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. … the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in [an analogue to s 37M] require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of [an analogue to Pt VB] can be furthered, together with other relevant matters, including those referred to [the analogue]. The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of [an analogue to Pt VB] assume that its purpose, to a large extent, will coincide with the dictates of justice. (emphasis added)

34    In our opinion, Mr Rahman’s application to reopen was governed by those principles. For these reasons we are not satisfied that any error has been demonstrated in the primary judge’s reasons for refusing to grant leave to reopen, or that serious injustice would result from that decision: Adam P. Brown 148 CLR at 177.

35    For these reasons, the Fair Work proceeding appeal must be dismissed, but the order for costs below should be varied as we have indicated at [19] above.

The disciplinary proceeding appeal – background

36    The second appeal is concerned with the primary judge’s dismissal of Mr Rahman’s challenges to eight decisions that the ATO had made in the course of events leading up to his termination. The first two decisions occurred in late 2009 (the 2009 decisions) and concerned allegations about the appellant’s behaviour at a meeting with another ATO employee in November 2008. The third, fourth and fifth decisions (the 2013 decisions) concerned allegations connected to a direction that the ATO had given Mr Rahman on 2 May 2011, under the Public Service Regulations 1999 (Cth) made pursuant to the Public Service Act, that he participate in a medical examination with a psychiatrist on a particular date. The last three decisions (the 2015 decisions) concerned Mr Rahman’s suspension and its continuation in 2015 during the investigation that ultimately led to the termination of his employment, the subject of the Fair Work proceeding appeal.

37    Mr Rahman commenced the disciplinary proceeding in 2015. On 29 August 2016, he filed an interlocutory application seeking leave to amend his originating application and statement of claim, and an extension of time to file so much of the proposed amendment to his originating application as sought judicial review under the ADJR Act, as necessitated by s 11(1)(c) of that Act.

38    The Commissioner was the sole respondent to the disciplinary proceeding. The Commissioner objected to leave to amend being granted because, first, Mr Rahman had given no acceptable explanation for his delay in seeking judicial review of the eight decisions, secondly, Mr Rahman had taken other action to challenge each of those decisions, either directly or indirectly, thirdly, the Commissioner would be prejudiced in defending each decision by reason of the delay, notwithstanding that each decision was in writing, fourthly, the case that Mr Rahman sought to advance had been overtaken by the subsequent termination of his employment on 2 September 2015, and, last, the proposed amendments lacked any substantial merit.

39    His Honour considered those arguments. He found that, there was ample evidence before him on which the decision-maker for each of the 2009 decisions was entitled to conclude, that Mr Rahman’s behaviour during the relevant meeting had not been respectful or courteous, and that he had been given ample opportunity to respond to the evidence on which those conclusions had been based. Accordingly, his Honour found that there was no merit in the challenge to the 2009 decisions.

40    Next, his Honour dealt with the challenges to the 2013 decisions that concerned Mr Rahman’s explanations for his failure or refusal to participate in the medical examination by the psychiatrist. On 27 May 2011, the Commissioner had issued Mr Rahman with a notice of suspected breach of the APS Code of Conduct in respect of his failure or refusal to participate in the medical examination. Apparently there was some considerable delay in determining that allegation and it was only on 20 May 2013 that the decision-maker made the 2013 decisions to the effect that he had committed three breaches of the APS Code of Conduct.

41    His Honour rejected Mr Rahman’s submissions that the 2013 decisions were susceptible to challenge. He had found that it had been open to the decision-maker to determine what reason, if any, Mr Rahman had for not participating in the medical examination. He found that the decision-maker had made a comprehensive report for each of the 2013 decisions and that Mr Rahman’s challenge to them amounted to no more than impermissible merits review.

42    His Honour then turned to the 2015 decisions that related to allegations that Mr Rahman had submitted a number of false applications for ATO positions using the name of a third person, a Mr Haque.

43    After the 2009 decisions were made, Mr Rahman commenced proceedings under the Fair Work Act in the Federal Circuit Court, claiming relief under that Act’s general protections provisions in respect of alleged discrimination against him. Judge Driver heard those proceedings over three days, from 24 to 26 September 2013, and delivered judgment early in 2014. Buchanan J dismissed an appeal to this Court, on 11 December 2014, and the High Court subsequently dismissed Mr Rahman’s application for special leave to appeal.

44    The primary judge held that Judge Driver found that Mr Rahman had, in fact, made at least one false application in the name of Mr Haque, and that Buchanan J had upheld that finding. The primary judge found that Judge Driver had not made a finding as to how any of the remaining six job applications had been made, and, indeed, was not satisfied that Mr Rahman had made them.

45    On 3 February 2015, an officer of the Commissioner prepared a report that led to Mr Rahman’s suspension, the subject of the 2015 decisions, and finally, his termination.

46    The appellant argued before his Honour that some of the impugned job applications were for positions at the same level as Mr Rahman actually occupied at the time they were made, while one was for a lower level position.

47    The primary judge observed that applications for positions at the same level can be made for the purposes of moving from one sector of the Public Service to another. His Honour noted that Mr Rahman’s central complaint, and the basis for the challenge to the 2015 decisions, was the delay that had occurred between Judge Driver’s finding that he had made one false application, and the first 2015 decision to suspend him. The primary judge noted that Mr Rahman had argued that the maker of the 2015 decisions had proffered no reason or explanation as to why it was “fine” for the public to know about his alleged misconduct for, what at one point was claimed to be, 16 months, from the time of Judge Driver’s decision, and for him to continue to discharge his duties during that period.

48    The primary judge found that submission to be misconceived. He concluded that the Commissioner’s failure to take action sooner did not support the inference that the Commissioner regarded the underlying conduct in any way as being “fine” or as otherwise not warranting sanction. His Honour rejected Mr Rahman’s argument that the 2015 decisions could be seen as “wholly irrational” and, therefore his Honour found that the prospect of overturning any of the 2015 decisions was effectively non-existent.

49    His Honour concluded that none of the challenges to each of the 2009, 2013 and 2015 decisions could succeed. He recognised that his findings went further than was necessary to consider an application for leave to challenge those decisions under s 11 of the ADJR Act and that it was possible that more might have been said at a final hearing. However, he said that what he had concluded was sufficient to dispose of Mr Rahman’s application to amend.

50    Moreover, in light of the arguments before him, the primary judge also was not satisfied with Mr Rahman’s explanation for his delay in bringing the ADJR Act proceedings. His Honour found that Mr Rahman’s central explanation, that he was not aware that he could challenge the eight decisions under the ADJR Act, was a difficult argument to sustain in light of the fact that, at least by 2 May 2011, Mr Rahman must have had some awareness of his ability to do so. That was because, on that day, he signed and filed in this Court an application for an order of review which specifically sought an order quashing or setting aside a decision to issue him with a letter of reprimand under s 16(1)(a) of the ADJR Act.

51    His Honour accepted the Commissioner’s submissions that Mr Rahman had not satisfactorily explained his delay. The primary judge, however, did not accept that the Commissioner had established any sufficient prejudice to him to justify rejecting the application independently. He also found that Mr Rahman had given evidence that he had received assistance from officials of the Community and Public Sector Union at the times that some of the challenged decisions were made, but he had provided no evidence of any advice given by, or received from, the Union, which was an organisation that employed both industrial and legal advisors. Accordingly, the primary judge found, that were it necessary, he would not have granted Mr Rahman an extension of time to bring proceedings under the ADJR Act. The primary judge for similar reasons also would not have exercised his discretion to grant Mr Rahman leave to amend to seek relief under s 39B of the Judiciary Act.

52    Next, his Honour noted that Mr Rahman had sought review of the 2009 and 2013 decisions by the Merit Protection Commissioner who did not uphold any of his claims and remitted the review to the Commissioner (of Taxation), who then confirmed each decision. The primary judge found that, effectively, Mr Rahman also had challenged each of the 2009 and 2013 decisions in the proceedings before Judge Driver. And, the primary judge held that Mr Rahman had substantively challenged the 2015 decisions in the proceedings before the Deputy President and Full Bench.

53    His Honour referred to the established principle that this Court has a discretion not to grant relief under the ADJR Act when another alternative remedy was available, citing, appropriately enough, Rahman v Commissioner of Taxation [2015] FCA 988 at [17] per Flick J.

54    The primary judge concluded that, even if the case sought to be brought by Mr Rahman were meritorious, and even if he had a reasonable explanation for his delay, the availability of another more convenient and beneficial means of review, and his prior reliance on seeking alternative remedies in the past, would have been a compelling reason to refuse both an extension of time under the ADJR Act, and leave to amend to bring a challenge under s 39B.

The disciplinary proceeding appeal – Mr Rahman’s arguments

55    Mr Rahman argued that his Honour erred in finding that, first, he had not satisfactorily explained his delay, secondly, giving decisive weight to the alternative remedies that Mr Rahman had in the past pursued, or could have pursued, and thirdly, his case lacked substantial merit. His counsel argued that his Honour could not have made the finding that Mr Rahman was aware of his ability to challenge decisions under the ADJR Act, because Mr Rahman had not been cross-examined on his affidavit, in which he asserted the contrary. He also argued that, had Mr Rahman been asked about it, he may have been able to give an explanation.

56    He contended that the claims for relief sought in the amendments were not hopeless. For example, in respect of the 2009 decisions, Mr Rahman submitted that his Honour should have adverted to the fact that he had not responded to the evidence upon which those decisions were based so that, it was arguable that, they may have been susceptible to challenge in the contemplated proceedings. In respect of the 2013 decisions, Mr Rahman argued that he wished to give an explanation as to why he had not participated in the psychiatrist’s appointment, namely, he wished to assert that a copy of the manager’s report containing Mr Rahman’s annotations was not available to be shown to the psychiatrist at that time. Mr Rahman argued that his challenges to the 2015 decisions were based on the proposition, as argued before his Honour, that, if it were in the public interest that Mr Rahman be able to continue to work during the (asserted) 16 months between Judge Driver’s finding that he had submitted a false job application and his suspension, the delay in taking action to suspend his employment through much or all of that period had not been satisfactorily explained. He argued that the fact that his litigation was in train did not preclude the Commissioner from taking action more promptly to suspend him.

Consideration

57    As with the Fair Work proceeding appeal, this appeal involves a matter of practice and procedure, namely, the exercise of the primary judge’s discretion as to whether Mr Rahman ought to have been granted leave to amend. We reject the argument that it was not open to his Honour to find that Mr Rahman was aware of his ability to challenge the eight decisions under the ADJR Act because, on 2 May 2011, he had signed and filed his application to this Court to challenge another decision. It was not necessary for Mr Rahman to be cross-examined on that matter. The application that he signed was part of the evidence before his Honour and Mr Rahman was the party seeking leave to amend. He chose not, or failed, to explain how, consistently with his stated understanding, he could have signed that Court document at that time, yet had not brought challenges, under the ADJR Act, to at least the first 2009 and 2013 decisions timeously. In those circumstances, the primary judge was entitled to conclude, as he had, that Mr Rahman had provided no acceptable reason for his delay in seeking to bring challenges to any of the eight decisions: cf. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 385 [64] per Heydon, Crennan and Bell JJ.

58    Moreover, as Fitzgerald J said, of decisions involving, among other matters, discipline in the Australian Public Service, in Lucic v Nolan (1982) 45 ALR 411 at 416:

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. (emphasis added)

59    Nor are we persuaded that his Honour erred in his assessment of the lack of prospects of Mr Rahman successfully challenging the eight decisions under the ADJR Act or obtaining Constitutional writ relief under s 39B of the Judiciary Act. Finally, we are not satisfied that his Honour made any error in taking into account the fact that Mr Rahman not only could have challenged, but did challenge, directly or indirectly, each of the eight decisions in the other administrative or judicial proceedings he identified: see too SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

60    In short, the appellant has not demonstrated that the primary judge made any error of fact, failed to take into account a relevant consideration, took into account an irrelevant consideration, asked himself the wrong question, or acted on a wrong principle (cf. House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ), such as would warrant a grant of leave to appeal to challenge what would otherwise be an interlocutory decision (namely the refusal to grant an extension of time or allow an amendment), were this not an appeal from a dismissal of the proceedings below.

61    No error has been shown in his Honour’s approach or reasons for rejecting the applications for an extension of time or leave to amend. As his Honour noted, the first basis on which he acted namely, the lack of merit in the application to amend, was sufficient to dispose of those applications. So, too, was each of the other two bases that have been challenged, in respect of which we see no error.

Conclusion

62    For those reasons, this appeal should be dismissed with costs.

Associate:

Dated:    4 April 2018