FEDERAL COURT OF AUSTRALIA

Rahman v Commissioner of Taxation [2017] FCA 1128

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 30 July 2015 be dismissed.

2.    The applicant’s interlocutory application dated 21 August 2015 be dismissed.

3.    The application for leave to file and serve an amended originating application and statement of claim be dismissed.

4.    The application for an extension of time to file and serve an application seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.

5.    The applicant pay the respondent’s costs of and incidental to these proceedings.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    Mr Fahmid Rahman is a former employee of the Australian Taxation Office (ATO). By an interlocutory application dated and filed 29 August 2016, he applies for leave to file and serve an originating application and statement of claim seeking relief against the respondent, the Commissioner of Taxation. He also seeks an extension of time to file that part of the proposed originating application which seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2    The originating application and draft amended statement of claim for which leave is sought are annexed to the applicant’s affidavit, sworn 29 August 2016. That affidavit also annexes a previous version of the proposed statement of claim, which has not been filed. While the Commissioner maintained an objection to the leave sought being granted, he did not separately object to the form of either the proposed originating application or the form of the proposed draft amended statement of claim. The Commissioner’s objections were confined to the substance of the case sought to be brought.

3    As detailed further below, the applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) and s 16 of the ADJR Act in relation to eight decisions of disciplinary character made by delegates of the respondent in respect of the applicant’s employment with the ATO. The following relief was sought:

(1)    a declaration that those decisions are null and void and of no force or effect at law and/or pursuant to the ADJR Act;

(2)    an order that the eight decisions be set aside and quashed;

(3)    an order that the Commissioner’s official record with respect to the applicant be amended so as to remove all record or reference to those eight decisions;

(4)    an order that the Commissioner repay to the applicant sums deducted from his salary pursuant to two of the decisions, together with interest;

(5)    an order that the Commissioner compensate the applicant for lost overtime and superannuation as a result of two of those decisions, together with interest thereon; and

(6)    costs.

4    The Commissioner does not contend that any of the eight decisions are not decisions under an enactment or are not amenable to relief being granted under s 39B(1A)(c) of the Judiciary Act as arising under any non-criminal laws made by the Parliament. Rather, the Commissioner contends that leave should not be granted for a range of reasons discussed below.

Background

5    In late February 2008, the ATO employed the applicant as an ongoing Australian Public Service Level 4 employee under s 22 of the Public Service Act 1999 (Cth) (PSA). Difficulties arose in relation to the applicant’s employment in November 2008. He was suspended from duty in March 2015 and was ultimately dismissed in the second half of 2015.

6    On 30 July 2015, prior to his dismissal, the applicant filed an originating application seeking declarations and orders in respect of his suspension from duty. That application is no longer pressed.

7    It is common ground that, irrespective of whether leave is granted pursuant to the present application, the 30 July 2015 originating application should be dismissed as it is no longer pressed. A related interlocutory application filed by the applicant on 21 August 2015 seeking interim orders in respect of his suspension is similarly not pressed and should also be dismissed. Because of that outcome, the Commissioner’s interlocutory application dated 14 August 2015, seeking summary dismissal of the 30 July 2015 originating application, should be allowed as a matter of formality. Any costs incurred in respect of the 30 July 2015 originating application, the applicant’s interlocutory application of 21 August 2015 and the Commissioner’s interlocutory application of 14 August 2015 should be regarded as forming part of the same proceedings, and any costs orders made should encompass costs incurred in respect of those various processes.

8    In effect, the applicant now seeks to replace his previous causes of action with challenges to eight decisions, the last of which led to his suspension. In substance, although not in form, what the applicant now seeks is leave to file an amended originating application and statement of claim so as to replace the originating application filed on 30 July 2015. As noted above, he also seeks leave to bring parallel claims under the ADJR Act well after the expiry of the 28-day time limit from the time of each of the impugned decisions.

9    It follows from the above that the applicant requires leave to bring a different originating application and statement of claim to challenge the eight decisions that preceded his dismissal from the ATO. Leave is also required for the proposed ADJR Act claims.

10    The eight administrative decisions sought to be challenged, and the basis for each proposed challenge, are set out in the draft amended statement of claim. The administrative decisions were made by delegates of the Commissioner during the period from September 2009 to June 2015. It is not entirely clear, but it appears that the alleged contraventions by the applicant of the rules of behaviour/conduct prescribed by s 13 of the PSA, which sets out a statutory code of conduct for employees of the Australian Public Service (APS), form the basis for both the impugned decisions and the proposed challenges. The sanctions which may be imposed for contravention of the code of conduct are set out in s 15(1) of the PSA and range from a reprimand through to termination of employment. Under s 15(3) of the PSA, the Commissioner is required to establish procedures for determining whether an APS employee such as the applicant has breached the code of conduct. Those procedures must have due regard to the ordinary requirements of procedural fairness.

11    The eight decisions which the applicant seeks to challenge preceded the decision to dismiss him. His dismissal has been the subject of unsuccessful unfair dismissal proceedings brought in the Fair Work Commission and a further application for permission to appeal to the Full Bench of the Fair Work Commission. The applicant’s challenge to the decision of the Full Bench to refuse permission is the subject of separate proceedings and a separate judgment.

12    It is asserted on behalf of the applicant that the importance of the eight decisions that are the subject of these proceedings was that:

(1)    if the challenge to the dismissal of the applicant is successful, irrespective of whether he is reinstated or not, his prior work record will be of importance both in his re-employment (if reinstated) and/or employment elsewhere (if not re-instated); and

(2)    even if the challenge to the decision to dismiss the applicant is unsuccessful, a challenge to some of those decisions has monetary consequences for the applicant, including reversal of a fine and salary reductions, payment for unpaid overtime and payment for overtime work unable to be partaken in by reason of suspension, as well as payment of forgone superannuation entitlements related to that overtime.

13    The eight decisions that the applicant seeks to challenge by way of judicial review under s 39B of the Judiciary Act and/or s 16 of the ADJR Act may be summarised as follows (using the applicant’s numbering of the decisions):

(1)    a decision by Cindy Sutherland made on 24 September 2009 that the applicant had breached s 13(3) of the APS code of conduct (Decision 1);

(2)    a decision by Cathy Cox made on 17 December 2009 that the applicant be reprimanded and fined $1,180 by way of deductions from his salary for breaching s 13(3) of the code of conduct (Decision 2);

(3)    a decision by Mary Brennan made on 23 April 2013 that the applicant had breached s 13(5) of the code of conduct (Decision 3);

(4)    a decision by Ms Brennan made on 23 April 2013 that the applicant had breached ss 13(1) and 13(11) of the code of conduct (Decision 4);

(5)    a decision by Viv Daniels made on 10 October 2013 that the applicant be reprimanded and have his salary reduced by 10% for a period of 12 months for breaching ss 13(1), (5) and (11) of the code of conduct (Decision 5);

(6)    a decision by Martin Leonard made on 17 March 2015 to suspend the applicant from duty with remuneration (Decision 7 – there was no Decision 6);

(7)    a decision by Mr Leonard made on 5 May 2015 to continue the applicant’s suspension with remuneration (Decision 8); and

(8)    a decision by Mr Leonard made on 10 June 2015 to continue the applicant’s suspension with remuneration (Decision 9).

14    Decisions 1 and 2 concerned allegations about the applicant’s behaviour at a meeting with another ATO employee, Ms Julie Hansen, on 4 November 2008. Decisions 3 to 5 concerned allegations arising from a 2 May 2011 direction made under regulations to the PSA that the applicant undertake and participate in a medical examination with a psychiatrist, Dr Samson Roberts, on 11 May 2011, and his failure or refusal to participate in that consultation in disobedience of that direction. As noted above, there was no Decision 6. Decisions 7 to 9 concerned the decisions to suspend the applicant, and to continue that suspension to permit an investigation to take place into allegations that he had made seven false job applications under the name Muhammad Ahsanul Haque on or about 19 July 2010, 9 March 2011 (twice), 16 March 2011, 28 September 2011, 11 October 2011 and 7 March 2013.

15    It may be observed immediately that the extent of the challenges sought to be made by the applicant go no further than the point of suspension and do not address the question of termination. The applicant took this approach in order to avoid directly traversing the matters that have been the subject of challenge, thus far unsuccessfully, in the Fair Work Commission and Full Bench of the Fair Work Commission. The Commissioner, at least implicitly, contends that this does not make the fact of the subsequent termination of employment any less relevant.

16    The Commissioner contended that leave to amend should not be granted for the following five reasons:

(1)    the absence of an acceptable explanation for the delay in seeking judicial review of the eight decisions;

(2)    the fact that the applicant had taken other action with respect to challenging the eight decisions, directly or indirectly;

(3)    the prejudice to the Commissioner in defending the proceedings occasioned by the delay, notwithstanding the fact that each of the eight decisions was made in writing;

(4)    the fact that the case now sought to be advanced by the applicant has been overtaken by events, the most significant of which being the termination of his employment on 2 September 2015; and

(5)    the lack of substantial merit of the applicant’s proposed amended originating application and statement of claim, having regard to the merits of each proposed challenge to the eight decisions.

17    It is convenient to deal with the last of the points made on behalf of the Commissioner first as to the merits of the proposed challenges, that being the thrust of the applicant’s case in seeking to meet the other objections raised by the Commissioner.

Substance and merits of the challenge to the eight decisions

Decisions 1 and 2 – decisions made in 2009 concerning alleged workplace conduct in 2008

18    Ms Hansen was a co-worker at the ATO with the applicant. She made a complaint against him about an exchange between them which occurred in the workplace. There was a factual dispute between Ms Hansen and the applicant about the nature of that exchange.

19    On 7 January 2009, Mr Mark Gregory of the ATO emailed the applicant to inform him that Mr Des Woods of the ATO had been appointed:

(1)    to investigate the allegations made against him by Ms Hansen in emails sent by her on 25 November 2008 and 8 December 2008;

(2)    to prepare a comprehensive report in relation to the investigation, including the evidence considered, the findings in the conclusions, as well as recommendations as to appropriate sanctions; and

(3)    to report to Mr Daren Glanville, the then Director of the relevant work area of the ATO.

20    On 15 May 2009, Mr Woods reported to Mr Glanville that he had found there was evidence to support that, at a meeting on 4 November 2008 with Ms Hansen, the applicant had accused her of being “derelict in her duties”, “negligent” and “not providing full services to him because he is from a minority group”. Mr Glanville relayed this to the applicant, together with a copy of Mr Wood’s report and his decision that the findings of inappropriate behaviour should be referred for further action. Mr Woods conducted his investigation and reported pursuant to the procedures for determining whether an employee has breached the code of conduct, as well as the ATO practice statement PS CM 2004/09.

21    On 2 July 2009, Mr Glanville, in his capacity as an authorised person of the Commissioner under those procedures, decided to commence a formal investigation and issued a notice of suspected breaches of the code of conduct with respect to the allegation that at a meeting on a 4 November 2008 with Ms Hansen, the applicant had accused her of being “derelict in her duties”, “negligent” and “not providing full services to him because he is from a minority group”. The notice of suspected breaches asserted that this alleged conduct may have constituted a breach of ss 13(3) and 13(5) of the code of conduct, being the requirement to treat everyone with respect and courtesy and without harassment, and the requirement to comply with the reasonable lawful direction to treat everyone with respect and courtesy and without discrimination. Mr Glanville authorised Ms Cindy Sutherland to determine whether those contraventions had occurred and, if so, to recommend appropriate sanctions.

22    The applicant’s case advanced in respect of the decisions that were made concerned the way in which his suspected conduct was described in the notice of suspected breaches of the APS code of conduct dated 2 July 2009 issued by Mr Glanville. The first suspected breach does not require any further consideration. The second suspected breach was described as follows:

Suspected Breach 2

It is alleged that on 4 November 2008 you failed to treat with respect and courtesy, and without harassment, Ms Julie Hansen in the following matter:-

(a) Accused her of being “derelict in her duties”, “negligent” and “not providing full services to you because you are from a minority group”.

It is alleged that by making the comments above to Ms Hansen, during the course of your employment you failed to treat her with respect and courtesy, and without harassment and therefore it is alleged that you have breached sub-section 13(3) of the Public Service Act 1999.

It is also alleged that by failing to treat Ms Hansen with respect and courtesy, and without harassment, you have failed to comply with the following direction:

“An employee must treat everyone with respect and courtesy and must not engage in any conduct that harasses and/or unfairly discriminates against nay person in the course of or in connection with their employment.”

In allegedly failing to comply with this direction, which is applicable to all Tax Office employees and is detailed in the Corporate Management Practice Statement entitled “Workplace Harassment & Discrimination” PS CM 2004/09, it is further alleged that you have breached sub-section 13(5) of the Public Service Act 1999.

23    On 23 September 2009, a written determination of suspected breach of the APS code of conduct was issued by Ms Cindy Sutherland. The applicant asserts that this determination contained reviewable errors, the first of which concerns the findings reproduced at paragraphs 58 and 59 of the determination report as follows:

Findings

58. There is not corroborating evidence from those in attendance at the meeting regarding that allegations [sic] made by Ms Hansen, those being that Mr Rahman accused her of being “derelict in her duties”, “negligent” and “not providing full services to you [Mr Rahman] because you [Mr Rahman] are from a minority group”.

59. However there is sufficient evidence to support that Mr Rahman’s behaviour during the meeting was not respectful or courteous. Mr Rahman’s behaviour was such that the meeting was suspended to allow Mr Rahman some time to ‘calm down’.

24    The complaint made by the applicant is that, because there was no finding that the applicant had uttered the words “derelict in her duties”, “negligent” and “not providing full services to him because he is from a minority group”, or presumably words to that effect, there was no logic in the finding that there was sufficient evidence to support the conclusion that the applicant’s behaviour was not respectful or courteous.

25    In response to this, counsel for the Commissioner pointed out that the particular words in quotes reproduced above were only particulars of how it was said that the applicant had failed to treat Ms Hansen with respect and courtesy and without harassment and that, even if those particulars were not established and without corroboration of those words being uttered, there was still scope for a finding to be made that the evidence or other material available to the determining officer was sufficient to reach the conclusion that the way in which the applicant had conducted himself was not respectful or courteous. Counsel for the Commissioner pointed out that the notice of suspected breaches of the APS code of conduct dated 2 July 2009 was to meet the requirements of procedural fairness by facilitating the applicant being put on notice as to the matters under investigation. However, they did not operate to confine the course of the investigation, provided the applicant was given an opportunity to be heard in respect of the matters raised against him. For the following reasons, I accept the Commissioner’s submissions in this respect.

26    Included in the extensive attachments to the determination report are two documents recording interviews with ATO employees about the applicant’s conduct at the meeting between him and Ms Hansen on November 2008. Both documents are referred to in footnote 26 to paragraph 59 of the report, where Ms Sutherland concludes that there was sufficient evidence to support the finding that the applicant’s behaviour was not courteous or respectful. The first document is a record of a face-to-face interview conducted with Mr Mark Gregory, who was present at the meeting between the applicant and Ms Hansen on 4 November 2008. Mr Gregory records the applicant continually raising his voice, disagreeing, pointing and overall expressing himself (including with physical gestures) in a confrontational manner. He also records the applicant accusing Ms Hansen of not doing her job, various other allegations, and the applicant mentioning that he was in a minority. The second document is a record of a telephone interview of Ms Chris Smallacombe, who was also present at the meeting. The record of the interview with Ms Smallacombe states that she described the applicant as becoming increasingly angry and being advised to go outside for a few minutes to calm down. It described Ms Hansen as attempting to describe her role several times without success with the applicant constantly interjecting. It states that the applicant had said that Ms Hansen had “failed in her duty of care”, treated him “like a second class citizen” and treated him differently because he was from a “minority group”.

27    The final annexure to the determination report is the applicant’s written response to the preceding annexures. That response, which is cross-referenced to each of those documents, including the reports of interview from Mr Gregory and Ms Smallacombe, contains the applicant’s version of events but does not directly address the points made by either of them, nor does it deny the words or actions attributed to him.

28    Having regard to the documents annexed to the determination report and the applicant’s response, it is readily apparent that there was ample evidence on which the decision-maker could rely to reach the conclusion that the applicant’s behaviour during the meeting was not respectful or courteous. The applicant was given ample opportunity to respond to the evidence on which that conclusion was based. It follows that there is no merit in the challenge that the applicant seeks to bring in relation to the 2009 decisions.

29    I should for completeness deal with a complaint made that the determination report referred only to a breach of s 13(3), but did not make any reference to s 13(5). I agree with the Commissioner that this is a point of distinction of no substance, as the same conduct underpins both areas of breach. The omission of a reference to s 13(5) was therefore of no moment.

Decisions 3 to 5 – the decisions made in 2013 concerning the alleged failure to comply with a direction to participate in a psychiatric examination in 2011

30    On 2 May 2011, the applicant was issued with a formal direction under regulation 3.2(2) of the Public Service Regulations 1999 (Cth) to undertake and participate in a medical examination with a psychiatrist, Dr Sampson Roberts, on 11 May 2011 at a stipulated date and address. No issue was taken about the legitimacy of the direction. The direction contained a formal warning that if the applicant failed to comply, immediate consideration would be given to pursuing the matter as a suspected breach of the APS code of conduct. The direction followed a prior notification on 28 April 2011 of the appointment being made. On the same day, certain documentation was sent to Medibank Health Solutions, which was where Dr Roberts apparently worked, including a manager’s report and a version of that report annotated by the applicant. Certain questions were set out in a covering letter to Dr Roberts. It was not in dispute that the applicant attended the appointment, but then failed or refused to participate in the medical examination. The applicant’s case relied upon the reasons for that non-participation.

31    On 27 May 2011, the applicant was issued with a notice of suspected breach of the APS code of conduct in respect of his failure or refusal to comply with the direction to undertake the medical examination. The notice invited the applicant to respond by 3 June 2011. He subsequently made an undated written submission.

32    It seems that there was some considerable delay in determining this suspected breach. On 20 May 2013, a determination was issued to the effect that the applicant did commit breaches of the APS code of conduct identified in the notice of suspected breach.

33    The applicant’s case was that the reason why he did not participate in the medical examination was that Dr Roberts did not have a copy of the version of the manager’s report with the applicant’s annotations. Much was made on behalf of the applicant of the various steps taken to ascertain what the reasons were for the non-participation. It was asserted that Dr Roberts was an unreliable witness because he could not have received the manager’s report without having also received the annotated version of the manager’s report. Before proceeding further in consideration of this complaint, I reject that proposition. There are any number of reasons why someone could receive some, but not all, of a number of documents emailed for their attention. The fact of only receiving some of those documents, for whatever reason, does not, without more, make the recipient in some way an unreliable witness.

34    It was asserted on behalf of the applicant that the real issue was whether Dr Roberts had received the manager’s report, without which it was said that psychiatric evaluation could not proceed. It was not in dispute that the applicant attended at the medical examination with his own copy of the annotated version of the manager’s report. Counsel for the Commissioner submitted that it was open to the decision-maker to determine which reason for non-participation in the medical examination should be accepted, a comprehensive report having been made by the decision-maker for each of decisions 3 and 4, which flowed through to decision 5, which was not separately or independently challenged. I accept the submissions made on behalf of the Commissioner. The attempts to question the determination reached by the decision-maker did not entail anything other than impermissible merits review. The challenge to decisions 3, 4 and 5 must fail.

Decisions 7 to 9 – the decisions made in 2015 concerning making false job applications in 2009, 2010, 2011 and 2013

35    On 3 February 2015, Ms Funda Mustafa submitted a six-page report on an investigation into allegations that, in the period from 1 July 2010 to 29 March 2013, a number of applications for ATO positions had been made by the applicant under the names of Muhammad Ahsanul Haque and Ahsanul Haque. The report said that it had been confirmed that those two persons were the same person. The background to the report recorded the fact that the applicant had filed a claim under the Fair Work Act 2009 (Cth) alleging contravention of a general protection against the ATO in the Federal Circuit Court of Australia, and that the matter was heard over three days from 24 to 26 September 2013. As a result of those proceedings, the ATO had information about the applicant’s conduct that may have disclosed a breach of the APS code of conduct. Relevantly, on the second day of that hearing, the applicant had been cross-examined about a statement he had made in an affidavit sworn by him on 3 February 2012 for use in those proceedings. At paragraph 38 of that affidavit, he had stated that he had applied for a position by way of a “dummy application”, using a different pen for the purpose of testing the ATO’s selection processes. It was alleged that the applicant either made the false statements or that he assisted another person, being Mr Haque, to submit the false applications. It was alleged that in assisting Mr Haque, the applicant knew, or ought reasonably to have known, that the applications contained false and misleading information, and that he had failed to notify the ATO of the existence of the false applications.

36    The report specifically referred to the reasons for delay in referring the allegations to an authorised person. The stated reason was that Ms Mustafa considered it prudent to defer consideration of the applicant’s suspected misconduct until the final resolution of the applicant’s court case, which had come to an end when an appeal from the adverse result obtained before Judge Driver was dismissed by Buchanan J of the Federal Court on 11 December 2014. The report noted at paragraph 25 that on 12 December 2014, an ATO lawyer had advised that, following the appeal decision, there was “now no impediment to consider what action, if any the ATO would take about [the applicant’s] suspected misconduct”.

37    It should be noted that the decision of Judge Driver, which was effectively upheld by Buchanan J, was to the effect that the applicant had indeed made at least one false application in the name of Mr Haque. No finding was made that he had not made the remaining six applications, but rather that the court was not satisfied that he had in fact made them. It should also be noted that Ms Mustafa’s report had a number of annexures, including the exhibit list before Judge Driver, the various false applications, excerpts of the court transcript and the relevant procedures, a guide to managing suspected misconduct in the ATO and the Public Service Commissioner’s Directions 1999. It was that report that led to the suspension and ultimate dismissal of the applicant from his employment at the ATO. The judgments of Judge Driver and Buchanan J were amongst the material that was placed before this Court.

38    On 17 March 2015, Mr Leonard decided to suspend the applicant from duty with remuneration, effective immediately, based on the serious nature of the suspected breach of the code of conduct, the interests of the public, and regard to the likely perceptions of the ATO if decisive action was not taken.

39    It was pointed out on the applicant’s behalf that a number of the false job applications were at the same level occupied by the applicant and one was for a lower level position. However, it is incorrect to assume that job applications must only be made for positions at a higher level than that occupied by an APS employee if they are to be bona fide. Applications for positions at the same level may be made to move to a more desirable work area and applications for lower level positions may even be made for the same reason. It follows that there is nothing inherently improbable about such applications being made. A second level at which this challenge was put forward that cannot be sustained is the suggestion that just because a court has accepted that one out of seven possible false applications was made by the applicant, it was not open to the ATO to be satisfied as to the remaining six applications being false. That submission fails to have regard to the fact that the relevant decision-maker at the ATO was acting in a substantially different non-curial setting, where the formal procedures and rules of evidence do not apply.

40    The central complaint and basis for the challenge to this decision and the subsequent decisions to extend the suspension was the delay between the finding that the false application had been made by the applicant (in fact, the internal ATO report concluded that the applicant had made all seven false applications) and the decision to suspend. It was also submitted on behalf of the applicant that even if the issue of the other six false job applications was put to one side, there was no public interest or ATO interest enlivened to warrant suspension. The central reason for that submission was the delay. It was asserted that the decision-maker proffered no reason or explanation as to why it was “fine” for the public to know about this alleged misconduct for 16 months and for the applicant to continue to discharge his duties during this period, but not beyond. Similar submissions were made focusing on the ATO’s interest. With respect, those submissions are misconceived. The fact that action was not taken sooner does not support the inference that the underlying conduct was in any way regarded as being “fine” or otherwise not warranting sanction. Doubtless, it is always better that such matters are dealt with sooner rather than later, but a delay in dealing with them is not a reason why doing so, and applying appropriate sanctions according to the relevant repository of the administrative discretion, makes the imposition of such a sanction otherwise than in the public interest when in the interests of the ATO. The suggestion that the suspension decisions were “wholly irrational” and “cannot survive” cannot be accepted. It follows that the prospects of successfully overturning any of decisions 7, 8 or 9 is effectively non-existent.

Conclusion on the merits of the proposed challenges to the eight decisions

41    It follows from the above that each of the proposed challenges to the eight decisions cannot succeed. While this goes considerably further than is required for a leave application of this kind, counsel for the applicant effectively argued his case in order to meet a reasonable prospects threshold. It is possible that more might have been said at a final hearing. However, in the circumstances, especially where the challenged decisions were written decisions and did not require further evidence, it was possible to examine each of the eight decisions and form a view as to their merits not only sufficient for the purposes of the leave application, but beyond that. While ordinarily a mini-trial is not called for, in substance, that has been able to be carried out above and beyond the usual minimum requirements for a leave application, whilst still short of a final hearing of the case. Strictly speaking, this means that the remaining grounds that the Commissioner had for resisting the grant of leave do not require consideration. However, in deference to the efforts of counsel for the applicant and for the Commissioner in addressing each of those remaining grounds, they should be individually considered.

The absence of an acceptable explanation for the delay in seeking a review of the eight decisions

42    Counsel for the applicant accepted that the list of non-exhaustive principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 remained a good starting point for determining how the judicial discretion ought to be exercised in relation to an extension of time to bring ADJR Act proceedings. However, it was submitted that while it was the prima facie position that an out-of-time application would not be entertained, no special circumstances needed to be shown to enliven the exercise of the discretion. Reliance was placed on McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062, in which this Court decided that, in the circumstances of that case, it was appropriate to grant an extension of time notwithstanding a delay of some five years.

43    In the present case, it was submitted that the applicant’s explanation for the delay was that he was not aware that he could challenge the decisions under the ADJR Act. It was acknowledged that each of the decisions had already, in one way or another, been the subject of challenge by the applicant, but that was advanced in order to ground the submission that it was not the case that he had ever given the Commissioner reason to believe that he accepted those eight decisions. It was submitted that, in circumstances in which each of the decisions was in writing, there was no irremediable prejudice in exercising the discretion in the applicant’s favour because there was no prejudice beyond the ordinary prejudice suffered by any respondent to litigation. It was submitted that the merits of the applicant’s case were more than a reasonably arguable case, with reference being made to the majority decision in Mentink v Minister for Home Affairs [2013] FCAFC 113 at [37]-[39] to the effect that the review of the applicant’s case is to be undertaken on an interlocutory basis, not a final basis. It was submitted that there were public interest aspects to the applicant’s case apart from delay, namely the justice of the case and the broader public interest and the wider public service aspect, which appeared to be a reference to due administration of the APS.

44    In relation to the real and central explanation advanced by the applicant for delay, namely that he was not aware that he could challenge the decisions under the ADJR Act, that is a difficult argument to sustain in light of the fact that, at least by 2 May 2011, the applicant must have had some awareness of his ability to challenge an administrative decision under the ADJR Act. That is because on that date, he signed an application for review which specifically sought an order quashing or setting aside the decision to issue a letter of reprimand under s 16(1)(k) of the ADJR Act.

45    Counsel for the Commissioner submitted that the applicant had not advanced an acceptable explanation as to why he had delayed seeking review of the eight decisions. It was submitted that the applicant, as a lay person without legal training, was in no different a position to the majority of applicants who commence proceedings in this Court. Counsel pointed to the fact that the applicant had had legal representation at various stages, including from solicitors, counsel and senior counsel, and noted that he had called no evidence from his former legal advisors about the effect of any advice he did or did not receive. It was also pointed out that it was apparent from the applicant’s evidence that he had received assistance from officials of the Community and Public Sector Union at the time some of the decisions were made, and yet no evidence was provided as to what advice he had received from the CPSU, which is an organisation that employs both industrial and legal advisers.

46    I accept the Commissioner’s submissions. The applicant has provided no acceptable reason for his delay in seeking to bring a challenge to the eight decisions. Were it necessary, that is an additional reason why leave to bring proceedings under the ADJR Act out of time would not have been granted, and a further reason why the discretion to extend relief in relation to the s 39B proceedings, if leave had been sought to amend in favour of that cause of action, would most likely have been refused.

The fact that the applicant had taken other action with respect to challenging the eight decisions, directly or indirectly

47    The Commissioner submitted, and it was not disputed, that the applicant had taken other action to challenge each of the decisions. The applicant had sought review of decision 1 and decision 2 by the Merit Protection Commissioner. This was unsuccessful. He had also sought review of decisions 3, 4 and 5 by the Merit Protection Commissioner and again was unsuccessful in those challenges. The applicant had not sought to challenge the Merit Protection Commissioner’s decision in relation to any of those five decisions.

48    Counsel for the Commissioner submitted that it was even more significant that the applicant sought to challenge each of decisions 1 to 5 in proceedings brought in the Federal Circuit Court and determined on 28 February 2014 by Judge Driver: Rahman v Commonwealth of Australia (represented by the Australian Taxation Office) [2014] FCCA 6. While those proceedings were brought under the FW Act and contract, the applicant nonetheless mounted a comprehensive challenge to those decisions, as was evident from the reasons his Honour gave. It is not to the point that the applicant’s general protections application was subsequently discontinued. It remains the case that the applicant had the opportunity to challenge the decisions in that way, which is a factor that counts against being allowed to do so much later in this Court.

49    Counsel for the Commissioner also pointed out that the basis upon which Mr Leonard made decisions 7 to 9 was comprehensively challenged by the applicant in his unfair dismissal application before the Fair Work Commission.

50    I accept the submissions for the Commissioner. Those submissions were not seriously challenged by counsel for the applicant. Nor could they be. I further note that there is a well-established principle that the discretion against extending relief in this Court will more readily be exercised when alternative remedies are available. As noted by Flick J in Rahman v Commissioner of Taxation [2015] FCA 988 at [17]:

Relief in an application pursuant to s 39B of the Judiciary Act seeking judicial review of a decision may be refused in the exercise of the Court’s discretion where there is a more convenient and beneficial means of review available. Relief in the form of a prerogative writ of mandamus, for example, may be refused in such circumstances: e.g., R v Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69 at 75 per Northrop J. And where there is a right of appeal from an administrative decision to the Administrative Appeals Tribunal, it has similarly been held that a party should normally invoke that right rather than the jurisdiction conferred on this Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth): Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; cf. Peczalski v Comcare [1999] FCA 366 at [12] to [13], (1999) 58 ALD 697 at 699; Duncan v Fayle [2004] FCA 723 at [25], (2004) 138 FCR 510 at 518 to 519.

51    It follows that even if the case sought to be brought by the applicant were meritorious and even if he had a reasonable explanation for delay, the availability of more convenient and beneficial means of review and the prior reliance on such alternative remedies in the past would have itself been a compelling reason to refuse an extension of time in relation to the ADJR Act proceedings, to refuse leave to rely upon the proposed new cause of action under s 39B of the Judiciary Act and, in any event, to refuse to grant the ultimate relief sought on discretionary grounds.

The prejudice to the Commissioner in defending the proceedings occasioned by the delay

52    Counsel for the Commissioner submitted that the Commissioner would suffer prejudice in defending the proceedings occasioned by the delay, notwithstanding the fact that all the decisions are in writing. I do not consider that this is the Commissioner’s best argument, and if this was the only ground for refusing relief I doubt it would have succeeded.

53    Counsel for the Commissioner pointed out that, in any event, the relief sought went well beyond the usual orders sought in judicial review of setting aside or quashing the decisions and remitting the matter back to the initial decision-maker (a course that would be futile now that the applicant is not an employee of the ATO and, even if successful in relation to his Fair Work Commission proceedings in this Court, would not be in any position to be reinstated for a very considerable period of time). Overall, prejudice to the Commissioner would not of itself have been a sufficient reason to refuse leave for the case to be brought had the other factors detailed above been present.

The fact that the case now sought to be advanced by the applicant has been overtaken by events, the most significant of which is the termination of his employment on 2 September 2015

54    Counsel for the Commissioner submitted that the desire of the applicant to correct his employment record was not a good enough reason to permit the challenge to the eight decisions to proceed in circumstances where the proper vehicle for relief he is seeking was the (thus far unsuccessful) challenge to the ultimate decision to terminate his employment. While I am inclined to the view that this argument has some merit, I am not convinced that this alone should necessarily stand in the way of seeking relief of this kind. This is a question better determined in a more appropriate factual setting and, accordingly, I decline to express a concluded view in that regard.

Conclusion

55    For all of the foregoing reasons, the application for leave to file and serve an amended originating application and amended statement of claim must be dismissed. Costs should follow the event. Accordingly, the applicant must pay the Commissioner’s costs.

Associate:

Dated:    22 September 2017