FEDERAL COURT OF AUSTRALIA

O’Halloran v Wood [2003] FCA 854

JUSTIN JAMES O’HALLORAN v PETER WOOD, who is sued in his capacity as the delegate of DAVID KNOTT in his capacity as Chairman of the Australian Securities and Investments Commission -and- AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

S 481 of 2003

SELWAY J

15 AUGUST 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                                          The Court has no jurisdiction to review the decision of the first respondent referred to in par 1 of the Application for an Order of Review filed herein.

2.                                          The application by the applicant for an interlocutory injunction contained in par 4 of the Notice of Motion herein dated 30 June 2003 be dismissed.

3.                                          The applicant shall pay the respondent’s costs of the Notice of Objection to Competency herein dated 11 June 2003 and of the Notice of Motion herein dated 30 June 2003, such costs to be taxed in the absence of agreement.  

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

REASONS FOR JUDGMENT

1                     There are two issues dealt with in these reasons.  The first is whether this Court has jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the Act’) to review a decision made under a certified agreement.  For the reasons given below that question is answered no.  The second is whether an interlocutory injunction should be made restraining the respondents from filling the vacancy caused by the dismissal of the applicant from his employment with the Commonwealth under the Public Service Act 1999 (Cth) (‘PS Act’).  For the reasons given below the answer to that question is also no.

2                     On 4 October 2002, the first respondent determined that the applicant was declared ‘excess’ (‘the first decision’).  The parties are agreed that the power exercised by the first respondent in declaring the applicant to be excess was cl 46.5 of the Australian Securities & Investments Commission Certified Agreement 2001-2003 (‘the Certified Agreement’).

3                     On 4 April 2003, the second respondent terminated the employment of the applicant (‘the second decision’).  The parties are not in agreement as to the source of the relevant power.  The applicant says that the relevant power was contained in the Certified Agreement.  The respondents say that the relevant power was s 29 of the PS Act.

4                     The applicant has instituted proceedings under the Act seeking judicial review of both the first and second decisions.  The respondents have issued a Notice of Objection to Competency objecting that the first decision is not a decision to which the Act applies.  The applicant has issued a Notice of Motion seeking various orders.  In particular, the applicant seeks an interlocutory injunction to restrain the respondents from filling his position until his judicial review proceedings have been determined.

5                     The basis of jurisdiction under the Act is that there is a ‘decision to which this Act applies’: s 5(1) of the Act.  That phrase is defined in s 3 of the Act to mean (so far as is relevant):

‘decision to which this Act applies means a decision of an administrative

character made, proposed to be made, or required to be made (whether in the

exercise of a discretion or not and whether before or after the commencement

of this definition):

(a)       under an enactment referred to in paragraph (a), (b), (c) or (d) of the

            definition of enactment ; or

(b)               …;

other than:

(c)        …

(d)       a decision included in any of the classes of decisions set out in

            Schedule 1.’

6                     ‘Enactment’ is also defined in s 3 of the Act.  For present purposes par (a) of that definition means an Act of Parliament.  Paragraph (c) of that definition provides:

‘an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A;’

7                     Finally mention needs to be made of par (a) of Sch 1 of the Act.  That excludes from the definition of ‘decision to which this Act applies’ decisions under the Workplace Relations Act 1996 (Cth) (‘Workplace Act’).

8                     On the Notice of Objection to Competency the respondents argue that a decision under the certified agreement, that being an instrument under the Workplace Act, is relevantly a decision under the Workplace Act.  As that decision falls within Sch 1 of the Act this Court has no jurisdiction in relation to the first decision.

9                     The applicant says that the Act clearly distinguishes between decisions made under an Act and decisions made under an instrument made pursuant to the Act.  It says that the relevant decision in this case was not made under the Workplace Act but under the certified agreement and that such a decision is not excluded from the class of decisions to which this Act applies.

10                  Neither party chooses to argue that a certified agreement in not an ‘instrument made under an Act’.  I approach the matter on that basis.

11                  So far as is relevant in this context, jurisdiction under the Act is not limited to decisions of Commonwealth bodies and authorities.  Consequently the argument of the applicant, if correct, would have the surprising consequence that all decisions made under certified agreements would be subject to judicial review under the Act.  Nevertheless, the arguments of the applicant have considerable force.

12                  However, the issue is covered by authority.  In Hudson v Australian Telecommunications Corporation (1990) 27 FCR 97 (‘Hudson’) Spender J held that an industrial award was an instrument made under the Industrial Relations Act 1988 (Cth) (‘the Industrial Relations Act’).  He proceeded to hold that this Court had no jurisdiction because the relevant decision was a decision under the Industrial Relations Act.  It is implicit in his Honour’s conclusion that a decision under an instrument made under an Act is a ‘decision under the Act’: see at 106:   

‘In the view I take of the matter, the source of the power of the Disciplinary Appeal Board to make the decisions which it did, as well as of the Board’s very existence, was cl 10 of the Telecom General Conditions of Employment Award 1989 made applicable by the Technical and Trades Staff Award. That award is also the source of the decisions’ legal effect. I find it impossible to escape the conclusion that the decision of the Disciplinary Appeal Board was made under the Technical and Trades Staff Award, picking up cl 10 of the Telecom General Conditions of Employment Award 1989, and ultimately under the Industrial Relations Act. The decision was thus a decision under an instrument under the Industrial Relations Act and the Federal Court has no jurisdiction to review it under the ADJR Act because of the definition of “decision to which this Act applies” in s 3(1) and Sch I to the ADJR Act.’ 

13                  The same conclusion was reached by Hill J in Marr v Australian Telecommunications Corp (1991) 34 FCR 82 (‘Marr’) at 91.

14                  Leaving aside the question whether a certified agreement is an instrument made under an Act (which both parties accept) there is no relevant distinction between certified agreements and awards or between the Industrial Relations Act and the Workplace Act for these purposes. Dr Churches, who appeared for the applicant accepted that the above decisions were contrary to his submissions.  He was correct to do so.  He nevertheless invited me to depart from those previous decisions.  I could only do so if I was satisfied that the decisions were plainly wrong.  I am not.  It is quite arguable that a decision under an instrument made under an Act could also be considered to be a decision made under that Act. 

15                   On the authority of Hudson and Marr this Court does not have jurisdiction to review the first decision.  The respondents’ objection must be allowed.

16                  There remains the question of whether an interlocutory injunction should be issued to restrain the respondents from filling the applicant’s job pending the finalisation of the review proceedings in relation to the second decision.  The relevant principles for the grant of such an injunction are discussed by Mason J in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-155.  As a minimum there must be a serious question to be tried, but beyond that it is necessary to determine the ‘balance of convenience’. 

17                  The problem in this case is that the interlocutory injunction sought by the applicant cannot be viewed as one that would merely maintain the status quo.  This is because the PS Act no longer confers on a public servant any particular right to a position or an office or to a defined set of duties.  This being the case the applicant, if he is ultimately successful in his review proceedings may well have the second decision overturned.  If so then the result might be that he is still employed under the PS Act at the same classification as he was when his employment was purportedly terminated.  But the success of his judicial review application  will not mean that he has any entitlement to the same ‘job’ that he was previously doing.  Under the PS Act he has no such entitlement.  Indeed even if he is ultimately successful in these proceedings it does not mean that his employment will not subsequently be terminated.

18                  In these circumstances the grant of the interlocutory injunction sought by the applicant cannot be justified and is refused.      

19                  The parties accepted that the successful party should have its costs and it is so ordered.

Associate:

Dated:              15 August 2003