C A T C H W O R D S
ADMINISTRATIVE LAW - application for order of review of decision to dismiss the applicant from the Public Service pursuant to s.62(6)(b) of the Public Service Act - whether s.63D of the Public Service Act provides "adequate review" for the purposes of s.10(2)(b)(ii) of the ADJR Act - whether discretion to refuse to grant the application should be exercised.
Public Service Act 1922 - ss.62(6), 63D(2), 76Z
Administrative Decisions (Judicial Review) Act (1977) (Cth) - s.10(2)(b)(ii)
Merit Protection (Australian Government Employees) Act 1984 - ss.17, 18
Kelly v Coates (1981) 35 ALR 93
Beck v Thornett (1984) 6 ALN N209
Mercantile Credits Ltd v Federal Commissioner of Taxation (No 1) (1985) 8 FCR 510 Convery v Zimmo (1985) 70 ALR 383
A E Bishop & Associates Pty Ltd v Trade Practices Commission (1989) 11 ATPR 40-985 Inglis v Bateson (1990) 22 ALD 420
Colpitts v ATC (1986) 9 FCR 52
MATTHEW DAVID BRAGG v THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION & TRAINING
NG 84 of 1995
Davies J.
8 June 1995
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 84 of 1995
)
GENERAL DIVISION )
BETWEEN: MATTHEW DAVID BRAGG
Applicant
AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING
Respondent
Coram: Davies J.
Date: 8 June 1995
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Liberty to apply with respect to costs is reserved.
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 ) No G 84 of 1995
)
GENERAL DIVISION )
BETWEEN: MATTHEW DAVID BRAGG
Applicant
AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING
Respondent
Coram: Davies J.
Date: 8 June 1995
Place: Sydney
REASONS FOR JUDGMENT
The present issue is whether the Court should, in its discretion under s.10(2)(b)(ii) Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"),
dismiss the application. Section 10(2)(b)(ii) of the ADJR Act provides:-
"(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason -
...
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure."
The application was filed on 16 February 1995 seeking review of two decisions of Mr George Malicki, a delegate of the respondent, made on 16 January 1995 pursuant to s.62(6)(b) of the Public Service Act 1922. The decisions relate to charges of misconduct made against the applicant. In respect of both charges, Mr Malicki found the charges to be proved and directed that the applicant be dismissed from the Service. The misconduct was found by Mr Malicki to be:-
"[A]t about 1:15pm on 25 November 1992, when Mr Matthew David Bragg and Ms Michelle Darmanin were alone together in a lift in Town Hall House, Kent Street, Sydney, Mr Bragg turned towards Ms Darmanin, lunged at her, grabbed her aggressively by the shoulders and pushed her against the wall of the lift. He then grabbed her around the neck and shook her violently."
and:-
"[A]t approximately 1:30pm on 25 November 1992 in the lunch room of the Public Sector Recruitment Office, Town Hall House, Kent Street, Sydney, Mr Matthew Bragg humiliated Ms Michelle Darmanin by stating to others present that Ms Darmanin had been "dying to get her hands on him", such behaviour amounting to sexual harassment as defined in sub section 28 of the Sex Discrimination Act 1984."
It is common ground that the applicant was entitled to appeal against the decisions under s.63D(2) Public Service Act 1922 to a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 ("the Merit Protection Act"). Section 63D(2) reads, inter alia:-
"(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
...
Indeed the applicant lodged appeals in respect of both decisions on 31 January 1995 but was successful in having those appeals deferred indefinitely pending the outcome of the application to this Court.
The applicant contends that the appeal under s.63D of the Public Service Act does not provide an adequate provision for review of the decisions. In essence the applicant contends that s.63D does not enable the applicant to challenge the legality of the decisions and that, if the applicant proceeds under s.63D, then he will lose his right to make that challenge.
The general grounds upon which judicial review of the decisions is sought are that:-
1. the powers of the delegate were not exercised within a reasonable time;
2. the powers of the delegate were exercised for an improper purpose;
3. the decisions breach the rules of natural justice because adverse material was considered without giving the applicant an opportunity to be heard;
4. the decision maker took irrelevant considerations into account; and
5. the decision maker did not take relevant considerations into account.
In respect of all these grounds, it appears to me that the matters sought to be raised would be encompassed by or overcome by a hearing by a Disciplinary Appeal Committee. Grounds 1. and 2. would be relevant matters in the Committee's consideration and grounds 3, 4 and 5 should be overcome by the opportunity of the further hearing.
The "review" that s.10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v ATC (1986) 9 FCR 52 at 62, be a review involving "an independent exercise of powers directly affecting the decision reviewed." An appeal to the Disciplinary Appeal Committee pursuant to s.63D would, in my opinion, in the circumstances of the present case, satisfy these requirements. The Committee, established under the Merit Protection (Australian Government Employees) Act is constituted by 3 members, at least one of which is required to be an experienced legal practitioner (s.17 Merit Protection Act). Although it is not bound by the rules of evidence (s.37(1)(d)), the Committee may take evidence on oath or affirmation (s.18 Merit Protection Act) and the applicant will be able to appear by counsel (reg.20), call any witnesses (reg.17) and submit whatever documentary evidence he wishes to be considered. The Committee may confirm, vary or set aside the charges the subject of the appeal and it must provide reasons for its decision (s.63D(3) & (7) Public Service Act). There is no reason to believe that the Committee would be affected or influenced adversely to the applicant by those matters said by the applicant in his application to this Court to constitute the defects in the initial decisions.
In Inglis v Bateson (1990) 22 ALD 420 Neaves J examined the review provisions provided under s.76Z of the Public Service Act and considered those provisions to be inadequate as the appeal was limited to a determination of whether the decision "would be unreasonable". This is not the situation under s.63D. Nor is s.63D comparable to the provisions examined in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 where the decision of the review tribunal was recommendatory only and could have no binding force upon the initial decision maker.
I consider that the appeal contemplated under s.63D is an adequate right of review within the meaning of s10(2)(b)(ii) ADJR Act. See also Beck v Thornett (1984) 6 ALN N209. Moreover, in my opinion, it is generally desirable that the time of this Court should not be taken up with issues for the determination of which the legislature has established adequate administrative remedies.
It has been said in a number of reported cases that the burden lies upon a respondent to show that the Court should not exercise the jurisdiction conferred upon it: Kelly v Coates (1981) 35 ALR 93; Beck v Thornett (1984) 6 ALN N209; Mercantile Credits Ltd v Federal Commissioner of Taxation (No 1) (1985) 8 FCR 510; Convery v Zimmo (1985) 70 ALR 383; A E Bishop & Associates Pty Ltd v Trade Practices Commission (1989) 11 ATPR 40-985; Inglis v Bateson (1990) 22 ALD 420. Nevertheless, the general practice of the Court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided. This practice has been followed even with respect to appeals lying under s.76Z of the Public Service Act, the ambit of which, though not entirely unrestricted, is nevertheless wider insofar as the circumstances of the dispute are concerned than is the jurisdiction of this Court.
This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.
In my opinion, this is a clear case where the administrative remedy should be availed of before the Court is asked to rule upon matters such as natural justice and relevant and irrelevant considerations.
I shall therefore exercise the discretion conferred by s.10(2)(b)(ii) of the ADJR Act to dismiss the application.
I should express my view, however, that, if at the conclusion of the administrative process, the applicant still wishes to seek review under the ADJR Act and wishes to raise grounds going to the decisions of Mr Malicki as well as to the decision or decisions of the Disciplinary Appeal Committee, it would be appropriate to grant any extension of time as may be required to permit him to do so.
The application will be dismissed. Unless either party seeks costs, I shall make no order as to costs.
I certify that this and the 6 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
Associate:
Date: 8 June 1995
Solicitors for the applicant: Geoffrey Edwards & Co.
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 5 April 1995
Date of judgment: 8 June 1995
