Re Bret Busby v Human Resources Department and Australian Telecommunications Commission [1987] FCA 18 (4 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: BRET BUSBY
And: HUMAN RESOURCES DEPARTMENT and AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. WA G103 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.

CATCHWORDS

Administrative Law - Telecommunications Act s.40 - Telecom employee dismissed - application for order of review filed - leave sought to amend application to expand number of decisions to be reviewed - purpose of court to completely determine all matters in dispute - amendments allowed.

Administrative Decisions (Judicial Review) Act 1977

Telecommunications Act 1975 s.40

Ex parte Peko Wallsend Limited and Others v The Honourable Barry Cohen, Minister for Arts, Heritage and Environment unreported 22/12/86 NTG8 of 1986

HEARING

PERTH
4:2:1987

Mr Busby appeared in person.

Counsel for the Respondent: Ms. C. Francas

Solicitor for the Respondent Australian Government Solicitor

ORDER

The Applicant do have leave to amend his application by including as decisions of which he seeks review the following:-

(i) the decision of Veronica Lillywhite to dismiss the

applicant as advised in the letter to the applicant
dated 30 May 1986;

(ii) the decision of Athol John Westcott to disallow the
appeal by the applicant against the dismissal of
the applicant advised in the letter to the
applicant dated 7 July 1986;

(iii)the decision of the review tribunal consisting of
P.J. Reilly, L.P. Anderson and W.M. Strong, to
recommend that the decision to dismiss the
applicant stand;

(iv) the decision of the state manager of the Australian
Telecommunications Commission to accept the
recommendation of the review tribunal and to
confirm the dismissal of the applicant.

That Veronica Lillywhite, the members of the review tribunal, namely Messrs.

P.J. Reilly, L.P. Anderson and W.M. Strong, and the West Australian state manager of the Australian Telecommunications Commission be joined as respondents to his application.

That the applicant do within 14 days of the date of this order serve on the respondents a copy of his application amended in accordance with this order.

That the applicant do within 14 days also serve on the members of the review tribunal a copy of this order and affidavit material filed in the matter to date.

That within 14 days of today's date the applicant do file and serve upon the respondents copies of any further affidavits upon which he proposes to rely at the hearing of the application.

That the respondents have leave to file and serve any further affidavits within 14 days after filing and service of the applicant's further affidavits.

That the matter be listed for further directions at 9 o'clock on 5 March 1987.

That the cost of the applicant's motion be reserved.

That there be liberty to the parties to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

DECISION

On 24 June 1985, the applicant was appointed on a probationary basis as a clerk class 1 with the Australian Telecommunications Commission - that is, Telecom. Owing to adverse assessments of his work during the probationary period, his appointment was ultimately annulled. The annulment was preceded by various reports on the applicant's performance by superior officers. It is sufficient for present purposes to mention only those steps and procedures relevant to the matter presently before the Court.

2. On 22 May 1986, Neil Mercer, a manager, accounts and service in Telecom, wrote the following minute relating to the applicant:

"It would appear little improvement has been
demonstrated by Mr Busby on previous reports and as
such, his Conduct, Diligence and Efficiency still cannot
be deemed as satisfactory."

3. On 27 May 1986, Mr P.R. Glendinning, in a minute to the chief manager, Human Resources Department of Telecom, recommended that the applicant's services with the commission be terminated.

4. On 30 May 1986, one Veronica Lillywhite wrote to the applicant over the name: V. Lillywhite for Chief Manager, Human Resources. In her letter she said:

"In view of your continued unsatisfactory conduct,
diligence and efficiency I propose to annul your
appointment and terminate your services."

5. By the same letter, the applicant was advised that he could request a review of the decision by the chief officer.

6. On 10 June 1986, the applicant requested such a review by the chief officer. The chief officer, Mr Westcott, on 4 July 1986 decided to "disallow the appeal", and wrote to the applicant so advising him on 7 July 1986.

7. The applicant had in the meantime, on 10 June 1986, requested that the question of his appointment be considered by a review tribunal established under the Telecommunications Regulations. The tribunal ultimately reported to the state manager of Telecom on 11 September 1986, concluding with a formal recommendation in the following terms:

"The Tribunal's formal recommendation to the Commission
is that the Tribunal considers that the decision taken
to annul Mr Busby's appointment, as advised to him on
20th May 1986, was justified on the substance of the
reports by four Supervisors over a reasonable period of
time concerning his unsatisfactory conduct, diligence &
efficiency - and that the annulment decision should
stand."

8. The state manager subsequently accepted the tribunal's recommendation and confirmed the decision to annul the applicant's appointment.

9. On 20 October 1986, the applicant filed his application under the Administrative Decisions (Judicial Review) Act 1977, seeking an order of review of the decision of the chief manager, "that my appointment be annulled and my services terminated".

10. On 4 November 1986 directions were given in this matter by his Honour Mr Justice Toohey with respect to particulars of the grounds of review and the filing and service of affidavit evidence. Further particulars of the grounds of review and an affidavit sworn by the respondent were lodged.

11. The applicant now seeks leave to expand from one to eight the number of decisions to be reviewed. These are set out in his proposed amended application as follows:

"1. The decision of Neil Mercer that the applicant was
unsatisfactory as indicated in the minute to the
personnel manager, numbered 0729A;

2. The decision of P.R. Glendinning to recommend the
dismissal of the applicant as advised in the letter
to the chief manager, Human Resources Department,
numbered 0736A.

3. The decision of Veronica Lillywhite to dismiss the
applicant as advised in the letter to the applicant
dated 30 May 1986;

4. The decision of Athol John Westcott to disallow the
appeal by the applicant against the dismissal of
the applicant as advised in the letter to the
applicant dated 7 July 1986;

5. The decision of Athol John Westcott not to provide
reasons on request for his decision advised in the
letter to the applicant dated 7 July 1986, as
indicated in the letter to the applicant dated 29
July 1986;

6. The decision of the review tribunal, consisting of
P.J. Reilly, L.P. Anderson and W.M. Strong, to
recommend that the decision to dismiss the
applicant stand;

7. The decision of the state manager to accept the
recommendation of the review tribunal and to
confirm the dismissal of the applicant;

8. The validity of the section of the Act under which
the decision was made.

12. Section 40 of the Telecommunications Act 1975 provides in relation to the termination of probationary appointments as follows:-

"40.(1) Unless the Commission, in a particular case,
otherwise directs, the appointment of every officer
shall be on probation for a period of 6 months
commencing on the day on which the officer
commences duties in pursuance of his appointment.

(2) A person appointed as an officer on probation
remains a probationer until his appointment is
confirmed or terminated in accordance with this
section.

(3) The Commission may, at any time during the
period of 6 months, terminate the appointment.

(4) As soon as practicable after the expiration of
the period of 6 months, the Commission shall -

(a) confirm the appointment;

(b) terminate the appointment; or

(c) direct that the probationer continue on
probation for such further period (not being a
period exceeding 6 months) as the Commission
determines.

(5) Where the Commission directs that a probationer
continue on probation for a further period, the
Commission may confirm or terminate the appointment
of the probationer at any time during that further
period and, if it does not confirm or terminate the
appointment before the expiration of that period,
shall do so as soon as practicable after the
expiration of that period.

(6) Where the appointment of a probationer is to be
terminated, the Commission shall notify the
probationer in writing of the reasons for the
termination of the probation.

(7) The regulations shall make provision for and in
relation to the review of a decision of the
commission under paragraph (4)(b).

13. Regulations have been made as part of the Telecommunications Regulations which relate to the establishment of review tribunals for the purposes of carrying out a review of certain decisions of the Commission under ss.40(4)(b), 55 and 56 of the Telecommunications Act 1975.

14. Questions arose during argument on this motion as to the applicability of the review tribunal procedure in the present case, but I do not think it appropriate to resolve that question at this stage of the proceedings.

15. The respondent opposes the amendments proposed by the applicant. Complaint is made that the grounds for review of the various decisions set out in the proposed amended application are inadequately particularised. That is a matter which can be cured by provision of appropriate particulars. It would be necessary to join additional persons as respondents to enable the other decisions referred to in the minute to be the subject of the application. However, insofar as the decisions relate to the one matter - that is, the annulment of the applicant's appointment - their inclusion is in my opinion unlikely to prejudice the proper hearing of the application and may indeed ensure that the court disposes of all matters in controversy between the parties.

16. I note that an analogous approach was taken by Beaumont J. recently in Ex parte Peko Wallsend Limited and Others v The Honourable Barry Cohen, Minister for Arts, Heritage and Environment an unreported decision given on 22 December 1986. That was an application for leave to amend an application for judicial review by the introduction of additional claims for relief. At page 3 of the unreported judgment, his Honour said:-

"The first and second respondents oppose the application
for leave to amend. However, the Federal Court Act
requires that, so far as possible, the court shall
completely and finally determine all matters in
controversy between the parties. (Federal Court of
Australia Act 1976, s.22)".

17. Certain of the decisions which it is sought to include in the amended application do not in my opinion constitute either decisions to which the Judicial Review Act applies nor, contrary to the applicant's submission, conduct engaged in for the purpose of making a decision to which the Act applies as contemplated by s.6. The reports by Mercer and Glendinning fall into this category. Further, the reference in paragraph 8 of the proposed amended application to the validity of relevant sections of the Act, does not describe a decision to which the Judicial Review Act applies

18. In relation to paragraph 5 of the proposed amended application, I have examined the letter of 29 July 1986 there referred to. That letter was filed with other documents by the applicant in support of his application to amend the application for review. I am not satisfied that any case has been made out for the introduction of the decision said to be reflected in that letter as a decision to be reviewed in these proceedings. On the face of it, the contents of the letter does not appear to constitute a refusal to provide reasons for decision, as contended by the applicant. That is not to say that he may not comment or base submissions on the letter which are relevant to his application at the substantive hearing.

19. It should be made clear that insofar as the amendments are allowed they are allowed for the purpose of enabling all matters in dispute to be properly disposed of at the hearing. No party is to be precluded by this amendment from raising any objection as to competency or any other submissions fairly open at the hearing of the application. I therefore propose to order that the applicant have leave to amend his application by the inclusion in it of the decisions so called which are referred to in paragraphs 3, 4, 6 and 7 of the proposed amended application. The most convenient way of implementing that order will be to allow the applicant, within a suitable time, to file an application amended in accordance with this ruling.

20. It will be necessary also to join, as respondents to the application, Veronica Lillywhite, the members of the review tribunal and the state manager of the Australian Telecommunications Commission.