FEDERAL COURT OF AUSTRALIA

Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897

SHAH MUSTAFA v CHIEF EXECUTIVE OFFICER, CENTRELINK & ORS

N 1106 OF 1999

JUDGE:          WHITLAM J

DATE:            21 DECEMBER 2000

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The time to commence this proceeding is extended to 28 September 1999.

2.                  The applicant pay the first respondent’s costs of this motion, including any reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”).  The subject decision was made on 9 August 1999 by a Disciplinary Appeal Committee constituted by the second, third and fourth respondents (“the DAC”) under s 63D of the Public Service Act 1922 (“the Act”).  The last day of the prescribed period for the purposes of s 11(1)(c) of the ADJR Act was 10 September 1999.  The applicant commenced this proceeding on 27 September 1999.

2                     The applicant is a staff member of the Commonwealth Services Delivery Agency (“Centrelink”).  He was charged with misconduct under s 61 of the Act in respect of five offences alleged to have been committed in September and October 1998.  An inquiry officer found each of the charges proved and directed under s 62 of the Act that the applicant be demoted and transferred from Centrelink’s office at Campsie to its office at Liverpool.  On appeal under s 63D of the Act, only one of the charges was found to be made out.  The DAC set aside the direction relating to the four other charges.  So far as the sole charge found to have been established was concerned, the DAC varied the decision appealed against and directed that the sum of $200 be deducted from the applicant’s salary.  The DAC also ordered Centrelink to pay the applicant $5,710 for his costs incurred in the appeal.

3                     A statutory record of the action taken under the Act is kept.  This record was explained in a departmental minute dated 12 August 1999 that Centrelink addressed to the applicant:

“As a result of action taken against you under section 62 of the Public Service Act an Official Conduct Record has been created.

The Official Conduct Record (OCR) is a document that is retained on the inside cover of your personnel file.  It sets out details of the misconduct proven, the nature of the sanction imposed and the date of effect.

Your OCR will be kept for a period of 5 years unless other disciplinary action takes effect before this time expires.  In such instances the earliest record will remain active until the later record expires.  If you separate to another department your OCR will be transferred with all your other personnel records.

Your OCR may be taken into consideration in future staffing decisions, however, you will be advised should this be necessary.  At the same time when you are being considered for vacancies you may choose to disclose the nature of your OCR to the chairperson of a selection advisory committee, or choose to discuss the matter with the delegate personally.”

4                     The first respondent opposes further time being allowed to commence this proceeding.  Each side accepted that the Court should be guided in the exercise of its discretion by the principles as stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

5                     The applicant’s explanation for his delay is hotly contested by the first respondent.  In his supporting affidavit, the applicant said that, when he received the DAC’s decision, he “forthwith applied” at the suggestion of his union representative to the “Industrial Relations Commission (IRC) by way of appealing the decision”.  This was not true.  In fact, the applicant notified the IRC of an alleged industrial dispute relating to his demotion after the DAC, in May 1999, adjourned his part-heard appeal under s 63D of the Act.  (How he, as an individual employee, was able to notify such a dispute is not clear.) 

6                     The course of proceedings in the IRC is instructive.  The alleged dispute was listed for hearing on 23 June 1999, but that date was apparently vacated at Centrelink’s request.  The DAC finished hearing the applicant’s appeal on 20 July 1999.  The proceeding in the IRC was then listed before MacBean SDP on 10 August 1999.  However, on that day, having been informed that the DAC had made its decision the day before and that the parties consented to an adjournment, MacBean SDP adjourned the matter sine die and indicated that he would re-list the dispute on the application of the applicant.  Such an application was apparently made on 27 August 1999, and the dispute was once more listed for hearing on 9 September 1999.  On that day MacBean SDP conducted part of the proceedings in private, at the conclusion of which he announced that he would adjourn until 13 October 1999 for argument on the IRC’s jurisdiction “to consider the matters alleged to be in dispute between the parties”.  After the hearing on 9 September 1999, Centrelink’s industrial officer told the applicant that, should the matter proceed, Centrelink would consider the possibility of obtaining a costs order against him for instituting a proceeding vexatiously and without reasonable cause.  On 17 September 1999 Centrelink was notified that the applicant had elected to “withdraw his application” to the IRC.

7                     The applicant was cross-examined.  He denies that the statement in his affidavit about the IRC proceedings was “a deliberate attempt to mislead”.  I accept that denial.  However his inaccurate statement necessitated an adjournment so that the first respondent could establish the true course of events.

8                     The decision of the DAC was received by the applicant on 12 August 1999.  After the hearing at the IRC on 9 September 1999, he wrote to the convenor of the DAC inquiring about appeal rights.  That letter was referred to the Merit Protection and Review Agency, one of whose staff telephoned the applicant on 14 September 1999 and told him that he could apply under the ADJR Act for review of the DAC’s decision within 28 days of his being given a copy of the reasons for that decision.  The next day, 15 September 1999, the applicant attempted to commence such a proceeding in the Court’s Registry.  An originating application was eventually accepted for filing on 27 September 1999.

9                     This brings me to what are described in Wilcox J’s statement of principles as “the merits of the substantial application”.  The document filed on 27 September 1999 did not set out proper grounds.  A document in the prescribed form was filed on 10 February 2000.  It purports to rely on the grounds in pars (d) and (f) of s 5(1) of the ADJR Act.  However, counsel for the applicant addressed on the basis that s 5(2)(g) was applicable to the case.

10                  Counsel for the first respondent submits that the substantive application is entirely lacking in merit.  I can certainly understand why that submission is made.  The DAC found that the applicant engaged in “improper conduct” on 22 September 1998.  Its primary findings of fact would seem to have been well open to it on the evidence to which it referred.  The labelling of the comments and gestures that the DAC found the applicant to have made is a matter for it.  The authority cited by the DAC has been consistently referred to with approval by Full Courts of this Court.  Despite repeated opportunities to refine his submissions, counsel for the applicant has completely failed to come to grips with the fact-finding role committed by Parliament to the DAC.  Any basis for the application barely rises beyond the theoretical.  It would appear to be a very weak case.

11                  Nonetheless, the consequences of the DAC’s decision for the applicant are drastic.  Centrelink’s minute of 12 August 1999 shows how this is so.  The administration of the public service will be enhanced by the perception that it rests on secure foundations of legality.  The applicant’s antics in the IRC were unwise and ill-advised.  This proceeding may also turn out to be a similar waste of time, energy and resources for the applicant.  But the first respondent will most likely be entitled to her costs, if she eventually wins, and she can point to no actual prejudice if the extension is granted.  In all of the circumstances, I propose to allow the further time sought to commence this proceeding.  The applicant must pay the first respondent’s costs of the motion, including any reserved costs.

Associate:

Dated:              21 December 2000