Re Flor Becerra v Ronald Fowell and Special Broadcasting Service [1983] FCA 21 (18 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: FLOR BECERRA
And: RONALD FOWELL and SPECIAL BROADCASTING SERVICE
No. G 246 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Administrative Law - application for order of review - application for extension of time - time from which time for making the application ran - consideration of principles applicable to granting extensions of time - unreasonable delay - application dismissed.

Administrative Decisions (Judicial Review) Act 1977, ss.11, 13(1) and (2)

HEARING

SYDNEY
18:2:1983

ORDER

1. The application be dismissed.

DECISION

I have reached a firm conclusion as to the fate of this application and will therefore give my decision immediately. The applicant Flora Becerra was born in Lima, Peru. For some years she has had a deep interest in the field of ethnic broadcasting. She came to Australia in 1971. In 1975 she joined Radio 2EA, an ethnic broadcasting station, on a voluntary basis as a broadcaster and co-ordinator of the Spanish programme. In 1977 the Special Broadcasting Service was established and Radio 2EA, which had formerly been administered by the Department of Telecommunications, was brought under its control.

In her capacity as a co-ordinator of the Spanish programme the applicant received a relatively small payment for her services and the payment was increased from time to time. In October 1978 the Special Broadcasting Service proposed that co-ordinators should, in the future, be appointed by the Special Broadcasting Service itself and that the appointments should be subject to annual review. Applications were invited for the position of co-ordinator of the Spanish language programme. When originally advertised the co-ordinator was offered a 12 months contract of service with an annual remuneration of $3251.

All applications were to be submitted by 24 October 1980. On 22 October 1980 the applicant submitted her application for the position of co-ordinator. Her application was acknowledged on 27 April 1981 and she was interviewed by a selection committee at the end of October 1981. The applicant's affidavit contains a great deal of material which is irrelevant for present purposes. It is clear from her affidavit that she regarded one or more of the selection committee as being less than competent.

One of the members of the committee was Mrs Fredrieka Westerman, the Station Manager of Radio 2EA. The applicant complained to Mrs Westerman that the Special Broadcasting Service was trying to get rid of her. She told Mrs Westerman, inter alia, that there were people in the Spanish community who were trying to destroy her career. There is much material in the applicant's evidence that demonstrates that she has a firm conviction that there was what she alleged to be a "campaign of attack" against her. In support of this allegation she made reference to articles in a Spanish language newspaper, the El Espanol.

The evidence suggests that one particular applicant was deemed by the selection committee to be the most suitable, and the applicant was regarded as the next most suitable. However no appointment was made as the result of the initial call for applications for the position of co-ordinator. Instead, on or about 30 November 1981, the Special Broadcasting Service decided to call for new applications for the position of co-ordinator and on 8 January 1982 Mrs Westerman wrote to the applicant in the following terms:

"I would like to let you know personally that the position of Co-ordinator of the Spanish Language Program will be advertised a second time to ensure that the widest range of applicants from the Spanish speaking community will be attracted.

This action does not reflect at all on those who have previously applied. However, after a meeting was held with certain members of the

Spanish community it was felt to be desirable to advertise a second time.

The applications will close on 30 January 1982, and those who have applied before will be considered together with any new applicants."

It seems that the applicant ascertained at the end of May 1982 from an

article in The Spanish Herald that the Special Broadcasting Service had decided to engage Mr Jose Ansaldo to take charge of the Spanish programme. She complained about his appointment.

On 1 June 1982 the applicant was invited to a meeting with Mrs Westerman and Mr John Martin, the assistant manager of Radio 2EA. Mrs Westerman told the applicant that the Special Broadcasting Service had decided to terminate her services and to replace her with somebody else. According to the applicant, Mrs Westerman said that she, the applicant, had been "too long in the job" and that the time had arrived for changes to be made. She then told Mrs Westerman that she would appeal against the decision.

On 1 June 1982 Mrs Westerman wrote to the applicant in the following terms:

"During our meeting this afternoon I informed you that it has been decided by the Special Broadcasting Service not to engage you for a

further term as Co-ordinator of the Spanish Language Program.

It was agreed that you would relinquish your duties as Co-ordinator as from today.

The Special Broadcasting Service will provide you with Co-ordinator's Fees until 27 June 1982.

I would like to express my appreciation for the efforts you have made and the work you have done to co-ordinate the Spanish Language Programs during the past six years."

Sometime after 1 June 1982 the applicant was invited to meet the new

co-ordinator of the programme, Nuria Benet.

On 7 June 1982 the Australian Journalists' Association, of which the applicant is a member, wrote on her behalf to the executive director of the Special Broadcasting Service. The letter was expressed to be written on behalf of the applicant. The letter referred to the requirements of s.13(1) and (2) of the Administrative Decisions (Judicial Review) Act (the Act) and went on to state:

"On behalf of Ms. Becera I therefore request in writing in relation to the

decision not to continue her engagement:

1. The findings on material questions of fact by the decision maker which led to the decision.

2. The evidence or other material upon which the findings were based, and

3. The reasons for the decision."

A reply dated 28 June was sent to the Australian Journalists' Association.

The reply furnished a good deal of information in relation to the employment of persons engaged in ethnic broadcasting and concluded with the following paragraph:

"With regard to your request under Section 13(1) and (2) of the Administrative Decisions (JUDICIAL REVIEW) Act, I must advise that I am of the opinion that you are not entitled to make such a request since Section 5(1) of that Act specifies that only aggrieved persons as defined in Section 3(4) may make requests under Section 13."

The applicant's response to this letter was to write a letter of 5 July 1982 in which she requested a statement under s.13(1) and (2) of the Act.

She received a reply to that letter dated 3 August 1982. That reply was in the following terms:

"I refer to your letter of 5 July 1982 and your request pursuant to Section 13(1) and (2) of the Administrative Decisions (Judicial Review) Act, in relation to your unsuccessful application for engagement as

Co-ordinator of the Spanish Language Program on Radio Station 2EA.

In response to your request the following information is provided:

(1) The position of Co-ordinator for the Spanish Language Program on Radio Station 2EA was advertised as part of the overall restructuring process of all language programs broadcast on 2EA and 3EA. You were an applicant. You were interviewed along with a number of other applicants. You were ranked suitable by the Selection Committee. However, you were not preferred over the nominated candidate, who was considered to be better qualified for the position.

(2) Findings of the Selection Committee were based on presentation at interview and information provided by the candidates in their application forms, including relevant experience in broadcasting. Referees' comments were also taken into account by the Selection Committee.

(3) The reason for the decision to engage someone other than yourself was that the recommended candidate was assessed as better qualified to co-ordinate the production and presentation of programs to meet the perceived needs of Spanish speaking listeners to 2EA."

Being dissatisfied with this reply, the applicant again wrote to the Special

Broadcasting Service on 11 August 1982 in the following terms:

"I refer to my previous letter to you dated July 5, 1982, and to your reply dated August 3, 1982. I suggest that the answers which you have provided in no way meet the questions put to you and therefore request

again in relation to the decision of S.B.S. to terminate my engagement:

1. The findings on material questions of fact by the relevant decision maker which led to the decision;

2. The evidence or other material upon which the findings were based, and

3. The reasons for the decision.
I look forward to the proper attention being given to this request."

Not having received a reply to this letter, the applicant, for the first

time, consulted her solicitors who, on 20 September 1982 wrote a letter requesting a statement pursuant to section 13. The solicitors received a reply dated 1 October 1982 which, it is conceded, was a statement which complied with the requirements of the section. The letter is lengthy, and paragraph 2(iii) of it is significant. It was in the following terms:

2. (iii) Following the obtaining of referee reports, the preferred candidate was considered to be unsuitable. The SBS considered that the initial advertisement had not attracted a good range of applicants and that readvertising of the position would be necessary. This decision was reinforced by an approach made to the SBS at the time by prominent members of the Spanish speaking community who expressed serious dissatisfaction with Ms Becerra's past performance as Co-ordinator and with the program's standard and content. A community consultation was held subsequently with members of the Spanish speaking community. The 2EA Spanish program was criticised for not having substantially changed during the seven years of Ms Becerra's leadership and for its perceived low standard. The meeting supported the readvertising of the position."

Subsequently an application for an order of review was lodged on 16 December 1982. The application seeks a review of the decision of the Special Broadcasting Service not to engage the applicant in the position of Co-ordinator of the Spanish language programme on Radio 2EA. Notice of objection to competency of the application was lodged on 21 December 1982. The notice contended that the application had not been lodged within the time prescribed by s.11 of the Act or within further time allowed by the court.

Thereupon, on 4 February 1983, a motion was taken out which, in substance, seeks that leave be granted either to file an application for order of review or to proceed with the application already filed. There is no doubt that the court has jurisdiction to grant the application should it think it proper to do so.

The first question which needs to be examined is the time from which time for making the application ran. Mr Farmer argued that the letter of 7 June 1982 was a proper request under section 13, it having been made on the applicant's behalf by the Australian Journalists' Association. Mr Shaw argued that it was not a proper request and supported the stance adopted in the final paragraph of the letter of 28 June 1982.

In my opinion, it was competent for the applicant to make a request under s.13 by her authorised agent. Plainly she authorised the Australian Journalists' Association to make the request on her behalf and I can see no reason why it should be regarded as being incompetent. Mr Shaw argued in the alternative that if this were so, then the final paragraph of the letter of 28 June was tantamount to a statement that the applicant was not entitled to make the request and that therefore by virtue of the provisions of s. 11(3)(b)(ii) of the Act time for the making of an application to this court ran from the date of that letter.

I think this argument is technically correct but because of the events that followed I do not regard the time that elapsed between 28 June and 3 August 1982 as being an unreasonable delay in the making of an application to the court. Clearly, the Special Broadcasting Service treated the applicant's subsequent letter as a request under s.13 and dealt with it on a formal basis. The question arises whether the letter of 3 August was a statement which sufficiently complied with the requirements of the legislation. In my opinion, it was. It seems to me to furnish, in sufficient detail, the material that an applicant is entitled to receive under s.13(1).

However, Mr Farmer argues that even if that is right, the applicant should not be blamed for not approaching the court within 28 days of 3 August 1982 because it was not until the receipt of the subsequent letter of 1 October 1982 that the applicant could have appreciated that she had any ground to attack the decision. In this respect he relied upon the terms of para. 2(iii) of the letter which I have set out above. He argued that the material in that paragraph gave the applicant, for the first time, real grounds for belief that she might have a remedy under the Act.

I think there is some substance in this argument. Nevertheless the fact is that for some ten weeks thereafter no application for review was filed. It is to be remembered that the applicant had been aware since June that another person had been appointed to fill the position that she had formerly occupied. There is no evidence as to the way in which the new appointee has discharged her duties, but I think I am entitled to assume that she has been actively engaged since June 1982 in the role of co-ordinator.

I do not think much turns upon the precise date of expiry of the time for the making of the application for review. In the view I take of the substance of the matter the applicant knew for many months prior to making her application that it would be opposed by persons who did not think it should succeed. She must have been aware of the time limits in the Act because she had taken advice as to her rights under it.

She has sought to explain the delay which occurred after 1 October 1982 by reference to her efforts to obtain legal assistance to bring this application. There is evidence that she spent some time making an unsuccessful application for legal aid. But I can see no reason why at least she could not have made her application within time, leaving until a later date the making of a final decision as to whether she would pursue it to its conclusion without legal aid.

The circumstances in which extensions of time should be granted to permit the bringing of applications under the Act have been referred to in a number of recent authorities and I need do no more than refer to the decisions of Northrop J. in Duff & Ors v Freijah & Ors 41 A.L.R. 479; Fisher J. in Doyle v Tooth & General Staff [1982] FCA 124; 42 A.L.R. 283; Keely J. in Ralkon v Aboriginal Development Commission [1982] FCA 153; 43 A.L.R. 535; and Fitzgerald J. in Lucic v Nolan & Ors (1 November 1982, unreported).

Some differences are discernible in those decisions as to the emphasis which should be given to various matters in deciding whether or not an extension of time should be granted in a particular case. Northrop, Fisher and Keely JJ. appear to take the view that the principles applicable to the granting of extensions of time in ordinary litigation should be applied in applications for extensions of time under the Act. On the other hand, Fitzgerald J. appears to hold a somewhat different and wider view. Thus at p.13 of his judgment in Lucic v Nolan & Ors (supra) he makes the following observation:

"I do not think that the court, in exercising its power to make exceptions in appropriate cases, should confine its attention to the consequences to the applicant of a refusal to extend time. Justice, as the ultimate object to be obtained by the exercise of the discretion, seems to me to require that regard be had to broader considerations than merely the interests of the applicant. Further, whilst there will be some matters which are relevant to the question whether time should be extended (in ordinary litigation inter parties) which are also relevant in this context, it seems to me likely that the overlap is only partial and that different emphasis is appropriate to some of the common factors. It may be that exceptional circumstances need not always be shown before time can be extended. However, I consider that an applicant for an extension of time maintains throughout the burden of showing why, in all the circumstances, the extension of time should be granted. I do not think that, given proof of certain matters by an applicant, e.g., an explanation for his delay in making application, an evidentiary onus shifts to the respondents to establish that prejudice will result if the extension is granted; nor, in my opinion, if the delay is explained and there will be no personal prejudice to the named respondents should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision maker."

If it became critical to do so, I would be disposed to adopt the view of Fitzgerald J. as to the proper approach to be taken in matters of this kind. However, for the purpose of disposing of this application I do not think it is necessary to pursue this matter any further because I would arrive at the same conclusion whichever approach was taken.

It seems to me that even if time did not begin to run until 1 October 1982, the lapse of a further ten weeks after that time has not been satisfactorily explained. The time which elapsed after that date has to be considered in the light of what had already transpired. As I have already sought to show, the applicant must have been aware that there were people in the Spanish community who opposed her appointment. She made that quite clear in her conversations with Mrs Westerman. She was formally acquainted of that fact on 1 October but took no action so far as the making of an application was concerned until mid-December. During all that time I must assume that the new Spanish programme co-ordinator was continuing to carry out her functions. I think that the longer the new co-ordinator occupied her position the weaker became the applicant's case for an extension of time.

I think considerations of public interest must enter into the exercise of discretion in a case such as this. I think it would be against the public interest that the efficient running of Radio 2EA be put at risk if a change is made in the position of co-ordinator of the Spanish radio programme. Under all the circumstances, therefore, I do not think this is an appropriate case for an extension of time.

I should state that the respondent did not argue on this application the question whether the decision not to appoint the applicant was a decision within the meaning of the Act. I express no view upon that matter although it may well be a real question. Nor have I had regard to the applicant's prospects of success on the substantive application. Mr Farmer referred me to the decision of Ellicott J. in Cunningham v Cole & Ors (14 November 1982, unreported). I would have thought myself that that decision and the decision of Sheppard J. in Ioannou v Ronald Fowell & Ors (17 August 1982, unreported), and which is referred to by Ellicott J., would not necessarily have availed the applicant in these proceedings. However, that is a matter which I am not called upon to determine. For the reasons I have given, the application is dismissed.