Meaney v Commonwealth of Australia [2003] ACTSC 77 (26 September 2003)

Last Updated: 14 October 2003

MARY ELLEN MEANEY v COMMONWEALTH OF AUSTRALIA

[2003] ACTSC 77 (26 September 2003)

PROCEDURE - amendment to statement of claim - whether or not new cause of action

Public Service Act 1922, s. 66A

Limitation Act 1985, s. 11

Administrative Decisions (Judicial Review) Act 1977

Weldon v Neal (1887) 19 QBD 394

Golski v Kirk (1987) 72 ALR 443

Phillips v Ward's Mercantile Agency Pty Limited [1988] ACTSC 72, unreported

Williamson v The Commonwealth [1907] HCA 60; (1907) 5 CLR 174

Lucy v The Commonwealth [1923] HCA 32; (1923) 33 CLR 229

Director General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427

Dickson v The Commonwealth (1981) 61 ALR 173

Macksville and District Hospital v Mayze (1987) 10 NSWLR 708

Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs (1991) 103 ALR 499

No SC 857 of 1994

Coram: Master Harper

Supreme Court of the ACT

Date: 26 September 2003

IN THE SUPREME COURT OF THE )

) No SC 857 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARY ELLEN MEANEY

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Coram: Master Harper

Date: 26 September 2003

Place: Canberra

THE COURT ORDERS THAT:

1. That the plaintiff have leave to amend the statement of claim within 14 days by adding paragraphs 5A, 5B and 5C contained in the draft amended statement of claim annexed to the affidavit of Bruce Howes sworn 28 August 2003.

1. This action was commenced on 14 December 1994 by writ of summons with the statement of claim annexed. The plaintiff's claim was that she had been wrongfully dismissed from office as a Commonwealth public servant on 9 July 1993. She sought a declaration that the forfeiture of her office was void and that she remained an officer of the Australian Public Service; and damages and costs. She pleaded that it was a term of her employment that she would not have her office forfeited other than pursuant to s. 66A of the Public Service Act 1922, and that the defendant in purporting to forfeit her office failed to comply with that section.

2. A defence was delivered on 4 May 1995, admitting the employment and the forfeiture of office but otherwise joining issue with the plaintiff's assertions.

3. Thereafter the action proceeded slowly. A number of subpoenas and notices for production were issued over the years, and the defendant filed an affidavit as to documents. A certificate of readiness was signed by the solicitors for the parties and filed on 17 April 2002. A listing hearing was scheduled for 18 June 2002 but the Court file does not reveal, and there is no evidence, whether that listing hearing took place or what if any orders or directions were made on that date. It does not appear that a hearing date was fixed.

4. The plaintiff has now applied for leave to amend the statement of claim by the addition of what are described as certain particulars. The paragraphs sought to be inserted into the statement of claim are in the following terms:

5A In triggering s. 66A of the Public Service Act 1922, the defendant was bound to accord the plaintiff procedural fairness;

5B The defendant knew or ought to have known that the defendant was on sick leave because of stress and that the plaintiff's illness was caused by the conditions operative in the workplace, and in particular by the conduct of Dr Butterfield;

5C In failing to personally contact the plaintiff or adequately attempting to personally contact the plaintiff, in the circumstances referred to in paragraph 5B herein, the defendant breached its duty to accord the plaintiff procedural fairness, and as a consequence the purported forfeiture of 9 July 1993 is void.

5. Order 32 Rule 1 empowers the Court, at any stage of an action, to grant leave to a party to amend any document of that party in the action, in such manner and on such terms as the Court considers just. The aim is to determine the real questions raised by or otherwise depending on the action, to correct any defect or error in the action and to avoid multiplicity of actions: subrule 1(2). An amendment may be made to an originating application which has the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts: subrule 1(6). Leave may be given notwithstanding that a relevant limitation period has expired since the action was commenced, if the Court considers it just to do so: subrule 1(7). The Court will, however, generally refuse an amendment which would prevent the defendant from relying on a limitation defence: Weldon v Neal (1887) 19 QBD 394. If the amendment does not raise a new cause of action, but merely particularises the existing cause of action further, it may be permitted notwithstanding the expiry of the limitation period: Golski v Kirk (1987) 72 ALR 443 per Kelly J at 451; Beaumont J at 455; and Ryan J at 457: followed in Phillips v Ward's Mercantile Agency Pty Limited [1988] ACTSC 72, unreported, per Gallop J.

6. The limitation period for bringing this action expired six years after the cause of action arose, that is, on 9 July 1999: Limitation Act 1985, s. 11. It is not apparent that the Court has any discretion to extend that period, and the plaintiff seeks no such extension in this application. It follows that if the amendment sought raises a new cause of action, it must be refused. It may be permitted if it does no more than particularise further the existing cause of action.

7. Section 66A of the Public Service Act 1922 provides as follows:

Division 6A Forfeiture of office

(1) Where an officer is absent from duty without permission, and has been so absent for a continuous period of not less than 4 weeks, the relevant Secretary may send to him by security post addressed to him at his address last known to the Secretary a notice informing him that unless within a period of 2 weeks from and including the date on which the notice was sent:

(a) he returns to duty; or

(b) he explains his absence and seeks the permission of the Secretary for any further period of absence that may be necessary having regard to that explanation;

he will be deemed to have retired from the Service upon the expiration of that period of 2 weeks.

(2) Where an officer to whom a notice under subsection (1) has been sent does not, within the period of 2 weeks from and including the date on which the notice was so sent:

(a) return to duty; or

(b) explain his absence and seek the permission of the Secretary for a further period of absence;

and the notice has not been revoked under subsection (5), he shall be deemed to have retired from the Service on the day following the expiration of that period of 2 weeks.

(3) Where a notice has been sent to an officer under subsection (1) and, within the period of 2 weeks after that notice was so sent, the officer explains his absence and seeks the permission of the Secretary for a further period of absence, the Secretary shall, as soon as practicable, consider the matter and may, by notice in writing sent to him by security post addressed to him at his address last known to the Secretary, inform him:

(a) that he has been granted leave of absence for such period and on such conditions as are specified in the notice; or

(b) that he is required to return to duty and that, unless he returns to duty within a specified period (being a period of at least 2 weeks from and including the date on which the notice is sent) he will be deemed to have retired from the Service upon the expiration of the period so specified.

(4) Where an officer who is required by a notice sent to him under subsection (3) to return to duty does not return to duty within the period referred to in the notice and the notice is not revoked under subsection (5), he shall be deemed to have retired from the Service on the day following the expiration of that period.

(5) The Board may, at any time before an officer is to be deemed to have retired from the Service under this section, by notice in writing sent to the officer by security post addressed to him at his address last known to the Board, revoke a notice previously sent to the officer under this section, and the notice is then void and of no effect.

8. In this case, a notice under s. 66A(1) was sent by a delegate of the Commissioner of Taxation to the plaintiff by security post addressed to her at PO Box 71, Campbell ACT 2601. It is the defendant's case that this was the plaintiff's address last known to the Commissioner. The notice was dated 25 June 1993 and posted at 4:15pm on that day; it was not received by the plaintiff, and was returned to the sender undelivered.

9. On 15 February 1993, the plaintiff had sent the Commissioner through Australia Post a fax in which she gave her address as 3 Macfarlan Place, Latham 2615. She also gave a telephone number, [phone]. The purpose of the fax message was to notify the Commissioner that the plaintiff was on extended sick leave, and that papers would follow in that regard. She requested that her entitlement to sick leave on half pay be converted to full pay, and asked for a list of the sick leave, recreation leave and long service leave she had taken between 1981 and 1993. Relevantly, the fax message included a paragraph in the following terms:

Please note change of address details above.

10. It will be noted that s. 66A does not require proof of receipt of such a notice. I am informed that the procedure established by s. 66A is often used to terminate the employment of a public servant whose whereabouts are unknown to the Commonwealth. The requirement for notification at the last known address relieves the Commonwealth of any need to spend time and money in an endeavour to locate such a person, and to establish that the notice has been received. In the present case, the Commonwealth argues that the requirements of the section were complied with, and that it is immaterial that the notice was not in fact received by the plaintiff.

11. It will be argued for the plaintiff that, following the fax of 15 February 1993, the Campbell postbox to which the notice was sent was no longer the plaintiff's address last known to the Commissioner, so that s. 66 was not complied with.

12. I was referred to a number of authorities said to establish that, in circumstances where there has been a de facto termination of employment, the only remedy is damages, and that the declaration sought in the statement of claim is unavailable. The earliest decision on this question is Williamson v The Commonwealth [1907] HCA 60; (1907) 5 CLR 174, in which Higgins J held the Commonwealth liable in damages for wrongful dismissal but refused to make a declaration that the plaintiff remained a public servant or was entitled to be reinstated. A full Court (Knox CJ, Isaacs, Higgins and Starke JJ) held in Lucy v The Commonwealth [1923] HCA 32; (1923) 33 CLR 229 that where a Commonwealth employee is wrongly removed from office the only remedy available is damages for unlawful termination of services, the measure of damages being the same as in an action for wrongful dismissal. The principle was applied in relation to a New South Wales public servant in more recent times: Director General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, where Brennan J, delivering the majority judgment, referred to Williamson and Lucy with approval.

13. Counsel for the plaintiff referred me to a decision of a full bench of the Federal Court (Bowen CJ, Deane and Kelly JJ), Dickson v The Commonwealth (1981) 61 ALR 173, dealing with the purported dismissal of a public servant following a prosecution for theft of Commonwealth property. The question was whether the appellant was entitled to the benefit of the rules of natural justice prior to the taking of disciplinary action in the form of a suspension. The Court held that in such a situation, where a statute conferred power upon a person to make a decision affecting the rights, property or legitimate expectations of another person, the rules of natural justice or standards of fairness recognised by the common law were prima facie applicable, the precise content of the applicable rules or standards depending upon the nature of the power being exercised, the effect of the decision on the person affected and the general circumstances of the case. If the applicable rules or standards were not observed, it was not relevant to enquire whether the decision reached was the correct one: the decision, at least to the extent that it adversely affected the rights, property or legitimate expectations of the person, was void. The suspension power exercised in that case was conferred by s. 62 of The Public Service Act.

14. Counsel for the defendant submitted that a denial of natural justice gave rise to no cause of action of itself, citing as authority Macksville and District Hospital v Mayze (1987) 10 NSWLR 708. However, the proposition was expressed in the judgment of Kirby P (at 724) in a dissenting judgment: the majority upheld the decision of the trial judge and did not find it necessary to deal specifically with the question.

15. Counsel for the defendant also referred to a decision of a single judge of the Federal Court, Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs (1991) 103 ALR 499. The plaintiff's claim was for damages arising from his arrest and detention by immigration officials, from which he had been released after a successful appeal to the High Court as to his refugee status. Einfeld J found that the plaintiff could not succeed in the action. One of his Honour's bases for the decision was that a judicial invalidation of an administrative decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 did not give rise to any right of action by a person who had suffered damage against the decision-maker. By way of analogy, the fact that the defendant's decision to dismiss the plaintiff in the present case might have been attended by a failure to afford the plaintiff natural justice would not of itself entitle the plaintiff to declaratory or other relief.

16. Reading the proposed amended statement of claim as a whole, it does not seem to me that the paragraphs proposed to be added assert any new cause of action. The relief sought is unaffected. The factual assertions, although spelt out in a little more detail, do not add anything of significance to the allegations contained in the original statement of claim. The new matter, as I see it, is limited to the assertion that the conduct of the defendant already pleaded amounted to a denial of procedural fairness. I do not read the proposed paragraphs as attempting to raise an alternative and independent cause of action. The cause of action remains one of wrongful termination of employment.

17. It follows that the proposed amendment would not give rise to any limitation issue.

18. There is nothing in the proposed amended statement of claim which would be inconsistent with the requirements of O. 23 (Pleading Generally) or O. 24 (Statement of Claim).

19. I am satisfied that the proposed amendment will assist in achieving the purpose of determining the real questions raised by or otherwise depending on the action, and that, conformably with O. 32 r. 1(2), the amendment should be permitted. I propose to grant the plaintiff leave to amend the statement of claim as proposed. I will provide the parties with an opportunity for submissions in relation to the costs of the application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

Associate:

Date: 26 September 2003

Counsel for the plaintiff Dr M Spry

Solicitor for the plaintiff Howes Powrie Kaye

Counsel for the defendant Mr A Berger

Solicitor for the defendant Australian Government Solicitor

Date of hearing 5 September 2003

Date of decision 26 September 2003