Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50 (25 March 2003)

Last Updated: 25 March 2003

FEDERAL COURT OF AUSTRALIA

Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50

HUMAN RIGHTS - where refusal to extend employment of officer "in employment" under the Public Service Act beyond maximum retiring age

PRACTICE AND PROCEDURE - where argument sought to be pursued not raised before primary Judge - where argument not contained in notice of appeal - whether leave to amend notice of appeal ought to be granted - where appeal fifth occasion the matter the subject of decision making - whether interests of justice in matter opposed to the raising of a fresh ground and continuation of proceedings.

PRACTICE AND PROCEDURE - whether application for extension of time to file an appeal ought to be granted - where long delay and action taken on basis of decision sought to be appealed from.

STATUTES

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 31(b), 3

Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) Reg 4

Public Service Act 1922 (Cth) 1935 (Cth) s 76V(1)(2)(3)(4)

Public Service Regulations 1935 (Cth) Reg 83

CASES

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Applied

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Cited

CDJ v VAJ (No 1) [1998] HCA 76; (1998) 197 CLR 172 Applied

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Refd to

Department of Defence v Human Rights and Equal Opportunity Commission and Others (1997) 78 FCR 208 Cited

JB Chandler Investment Company Limited (in voluntary liquidation) v Federal Commissioner of Taxation [1993] FCA 641; (1993) 47 FCR 588 Cited

Metwally v University of Wollongong [No 2] [1985] HCA 28; (1985) 60 ALR 68 Cited

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 Cited

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Cited

Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 Cited

MORTIMER PEACOCK v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and COMMONWEALTH OF AUSTRALIA

N 907 of 2002 and N910 of 2002

KIEFEL, NORTH & ALLSOP JJ

SYDNEY

25 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N907 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGES:	KIEFEL, NORTH AND ALLSOP JJ
DATE OF ORDER:	25 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the second respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N910 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGES:	KIEFEL, NORTH AND ALLSOP JJ
DATE OF ORDER:	24 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file an appeal from the decision of Wilcox J be refused.

JUDGES:	KIEFEL, NORTH AND ALLSOP JJ
DATE OF ORDER:	25 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appellant pay the second respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N907 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

AND

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N910 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

JUDGES:	KIEFEL, NORTH AND ALLSOP JJ
DATE:	25 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

KIEFEL AND ALLSOP JJ:

1 This appeal concerns whether the appellant was discriminated against, on account of his age, when consideration was given to whether to extend his employment as an officer of the public service beyond the maximum retiring age.

2 At the relevant time subs 76V(1), (2) and (3) of the Public Service Act 1922 (Cth) ("the PSA") provided:

"Retirement on ground of age

(1) Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age.

(2) Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and the officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer.

(3) The relevant Secretary may, at the time of making, or at any time after making, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the relevant Secretary may, at any time before the officer attains that age or before the expiration of the period so determined, vary the determination."

3 Subsection (4) defined the "maximum retiring age" to be 65 years.

4 The appellant was at the relevant time employed as a Director of Psychology, Navy. On 11 March 1996, he sought retention of his employment for a period of six months after 19 July 1996, the date at which he became 65. His request was rejected and he appealed against that decision under Reg 83 of the Public Service Regulations 1935 (Cth).

5 The Secretary of the Department determined not to invoke subs 76V(2) to extend his employment beyond the age of 65. In the reasons given by the Secretary, the "Commonwealth's interests" were addressed. In particular, in connexion with the appellant, it was explained that:

"...the Commonwealth interest which may be served by your continued employment is the continued utilisation of your skills in the achievement of relevant Navy program objectives ..." .

6 The Secretary then noted that the appellant had been given a superior rating in his previous two performance appraisals, that he had been advised that the appellant remained fit for duty and that suitable work was available. He went on:

"... There is also, however, a Commonwealth interest in maintaining a balanced age profile in the Department and providing career opportunities for other suitable eligible staff, particularly at a time of significant staff reductions, and these interests would tend to militate against your continued employment."

7 The Secretary explained that the exercise of the discretion under the subsection by delegates in the past had taken into account special circumstances. The Secretary gave, as an example of circumstances where it might be exercised in an employee's favour, the situation where an employee has unique or specialist skills that cannot be easily replaced or where an employee has particular knowledge essential to the completion of a project. None of those factors was said to apply. The Secretary went on:

"...The presumption underlying the exercise of the discretion is that compulsory retirement should occur unless it is not in the interests of the Commonwealth. It appears that the efficient operation of the Department would not be affected by allowing s 76V(1) to operate in this case."

8 The Secretary later explained, in his evidence before the Commission, that the majority of people in the Department of Defence were 50 to 55 years of age or more and he expressed concerns that there were very few young people.

9 Paragraph 31(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") confers power on the Commission to inquire into any act or practice that may constitute discrimination. Discrimination is defined in s 3 as follows:

"discrimination" means:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act; ..."

10 Regulation 4 of the Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) ("the HREOC Regulations") provides in relevant part that:

"4. For the purposes of subparagraph (b)(ii) of the definition of "discrimination" in subsection 3(1) of the Act, any distinction, exclusion or preference made:

(a) on the ground of:

(i) age; ..."

11 The appellant lodged a complaint with the Commission. The basis of the complaint was that he had been discriminated against by the Secretary on account of his age. The complaint has now been before the Tribunal and this Court twice. Given submissions on this appeal relating to the scope of the complaint which was the subject of the Commission's and his Honour's decisions, it is necessary to refer to each of those proceedings.

THE FIRST COMMISSION INQUIRY

12 The submissions put forward on the appellant's behalf were, in summary, that the Secretary was not entitled to take into account a "balanced age profile" in the exercise of the discretion under subs 76V(2). The Secretary had formed the opinion that the discretion given ought to be exercised in the appellant's favour, but nonetheless decided not to do so on the basis of the need for a "balanced age profile". This was said to mean "that older officers ought to leave to create promotional opportunities for younger officers". Such an imputation was not the subject of challenge by the Commonwealth on this appeal. The Secretary may have identified other matters he was entitled to take into account and recognised that his decisions must be based on reasons other than the complainant's age, because of the provisions of the HREOC regulations. However, it is submitted that the Secretary ignored those considerations, and the prohibition, in arriving at his decision.

13 The Commissioner considered the examples of a "distinction on the basis of age" which had been given by Branson J in Department of Defence v Human Rights and Equal Opportunity Commission and Others (1997) 78 FCR 208 ("Burgess"). The appellant's case did not fall within them, but the Commissioner did not consider that her Honour's list was intended to be exhaustive. The Commissioner found that a distinction on the basis of age was made in the formation of the opinion, by the Secretary, that it was not in the interests of the Commonwealth to continue the appellant's employment. It followed that a distinction on the basis of age was made not to exercise the discretion under subs 76V(2). That distinction arose from the need for a balanced age profile and the need to provide career opportunities for younger officers. These were material factors in the formation of the Secretary's opinion. The Commissioner then went on to consider whether that distinction had the effect of "nullifying or impairing equality of opportunity or treatment". As the appellant desired and intended to continue working and the refusal to extend his employment "nullified his ability to continue working with the respondent...", the Commission found that the decision "nullified his equality of opportunity". The Commonwealth applied to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for review of that decision.

THE DECISION OF WILCOX J

14 Before Wilcox J, the Commonwealth argued that the words "distinction, exclusion or preference" in s 3 of the HREOC Act have a meaning which must be addressed. They connote, the submission proceeded, "dealing with one person in one different way to the way one deals with some other person in comparable circumstances". For a distinction, exclusion or preference to have that effect it was not sufficient to consider only whether the appellant would have continued to be employed by the Commonwealth. It was necessary to compare his position with that of Commonwealth employees who had attained the age of 65 years and sought the exercise of the discretion given by subs 76V(2) in their favour. It was not appropriate to compare the appellant's position with that of employees who had not yet attained the age of 65 years, to whom subs 76V(2) did not apply. This approach was said to be supported by a passage from Burgess (at 215-216):

"In reaching a conclusion as to whether any of the acts of the Secretary in failing in respect of each of the complainants to make determinations under s76V(2) of the Public Service Act constituted a distinction or exclusion on the basis of age, it was not open to HREOC to find such distinction or exclusion by comparing the positions of the complainants with the positions of persons in respect of whom s76V(2) has no relevant operation."

15 In his reasons his Honour observed that the fundamental problem in the case was that it involved the attempted application of legislation prescribing age discrimination to a statutory provision that directly relates to discrimination based on age. His Honour agreed with the further comments of Branson J in Burgess (at 215):

"Although many would now contend that sound personnel management practices involve an absence of discrimination on grounds, including age, irrelevant to work performance, the Public Service Act cannot be construed without regard being had to the terms of s 76V(1). It would not be a lawful exercise of the discretionary powers of a Secretary under s 76V(2) for such powers to be used for the purpose of undermining the intention of Parliament as disclosed by the terms of s76V(1). That intention appears plainly enough to be to ensure that in the ordinary course an officer of the Australian Public Service is to retire upon attaining the maximum retiring age."

16 In his Honour's view, an officer's age could not be disregarded in exercising the discretion under subs 76V(2), as it created the necessity to make the decision. His Honour explained that, because the Secretary was considering whether, despite the fact that the officer was 65 years of age, or approaching it, it was in the Commonwealth's interest that the officer's employment continue, mere mention of age could not amount to discrimination. His Honour agreed with the view of Branson J that it was not open to the Commission to find such a distinction or exclusion by comparing the position of the officer in question with persons in respect of whom subs 76V(2) has no relevant operation. The distinction between an officer who needed a favourable exercise of discretion under subs 76V(2), and a younger officer who did not, was a distinction imposed by s 76V itself, in his Honour's view.

17 His Honour accepted that there was a "theoretical possibility" that a decision under subs 76V(2) might involve an act or practice constituting discrimination but found difficulty envisaging cases where it would be so. Accepting that a distinction might be drawn, such as appears from the examples given in Burgess, the question remained whether the distinction had the effect of nullifying or impairing equality of opportunity or treatment in employment. His Honour posed the question "equality with whom?" and went on:

"Once it be accepted that it is inappropriate, because of the terms of s 76V(1), to compare the position of the 65 year old applicant with sub-65 year old candidates for the applicant's position, it is difficult to see how the definition's requirement of nullification or impairment of equality can be met.

18 In the passage to which submissions on this appeal were directed, his Honour reasoned as follows:

"It follows from these factual findings that the decision made by Mr Ayers was materially affected by a distinction made by him on the basis of age: the need to provide a balanced age profile and to provide career opportunities for younger officers. But how did that distinction affect equality of opportunity or treatment in employment? As between Mr Peacock and younger officers, at material times there was never relevant equality. Mr Peacock's previously equal right to continue in the Commonwealth's employment had been swept onto the rock called s 76V(1). He was not in competition with any other officers who might have been approaching the age of 65 years and seeking extensions. There was no question of Mr Ayers denying Mr Peacock's equality with such persons."

19 His Honour concluded that the Commission's decision exhibited legal error because the Commissioner treated the Secretary's consideration of age as a distinction based on age, without considering how it might affect equality of treatment between individuals. The decision was set aside and the matter remitted for re-determination.

THE SECOND INQUIRY DECISION

20 On the second inquiry the appellant's representatives sought to address the need for a comparator in accordance with his Honour's decision. In attempting to address the requirement it was submitted that it was open to the Commission to find that discrimination has occurred within the relevant group rather than in comparison with some other group. That is to say, the discrimination might occur as between those applying for a subs 76V(2) exemption. It was not necessary to restrict the comparison with persons who were not approaching the age of 65 years. Here the Secretary had made a distinction on the basis of age and that "nullified his [the appellant's] equality of opportunity as compared with other persons seeking exemption under s 76V(2)".

21 The Commissioner considered that the argument had merit and found difficulty with the notion that the requisite comparator could not be another person seeking the discretion based on subs 76V(2). If the appellant was "singled out" by reference to membership of a particular group, and not treated on individual merit, that would seem to be sufficient. The Commissioner did not however consider that he was able to conclude that question in the appellant's favour, given his Honour's decision on that point.

THE DECISION APPEALED FROM

22 After setting out the history of the matter and how the question came to be raised, Moore J turned to consider the decision of Wilcox J. The critical question, his Honour considered, was whether Wilcox J was also rejecting as possible comparators (in the passage cited at [18] above) other officers approaching the age of 65 years and seeking extensions. In his Honour's view, Wilcox J had rejected the suggestion that a comparison of any legal relevance could be made with that group of officers and no question of denying equality could arise. His Honour went on to hold that this formed an integral part of Wilcox J's reasoning. Since it was a judgment on a matter of construction, his Honour considered that he should follow it unless satisfied that it was plainly or clearly wrong. His Honour was not so satisfied.

THE APPEAL

23 In his amended application for an order of review, the appellant had sought review of both the first and second inquiry decisions. That course was not one open with respect to the first decision, given that an application to review that decision had already been brought and been heard and determined by Wilcox J and orders made. So much was acknowledged by later attempts, on the part of the appellant, to seek an extension of time from this Court within which to appeal from the decision of Wilcox J. That application was refused by a majority. It was reasoned that there had been a long delay and the parties had acted upon the decision.

24 The refusal of leave to appeal would not however have prevented the appellant from testing the correctness of Wilcox J's decision, at least insofar as it had been determined that the relevant group for comparison was not persons approaching 65 who might also be seeking an extension of employment. It is not necessary to consider here the appropriateness of one single Judge determining a question on the basis of whether another Judge's decision on a particular point was plainly wrong. For present purposes it is sufficient to observe that Moore J accepted the decision as one not containing error. Consideration could have been given to the correctness of the view expressed by Wilcox J if the appellant had continued to contend to the contrary of it.

25 The appellant has turned away from the argument dealt with by Moore J. On the hearing of the appeal the argument that was sought to be advanced was that the comparator class should be all non-executive officers "in employment" under the PSA, since the employment of each of them will terminate, if it has not previously terminated, when the officer attains the age of 65 years. The previous argument, that the provision operates on a "class" or "sub-set" of officers who are approaching their 65^th birthday is expressly eschewed.

26 The argument now sought to be pursued was not raised before his Honour. The application for an order of review of the decision of the second inquiry identified the question the Commissioner ought to have addressed as whether there was relevant inequality between the appellant and other persons seeking a favourable exercise of the discretion conferred by subs 76V(2). Whilst it is possible that that description might be read more widely, we do not understand it to be suggested that the argument identified by the appellant in the application for an order of review was different from that dealt with by Moore J. The notice of appeal from his Honour's decision is conformable with this. It does not contain a ground such as that now sought to be advanced. Leave to amend would be necessary for that purpose. The respondent submits that the appellant should be confined to the grounds presently raised and in respect of which there might be said to be a material error in Moore J's decision.

27 This appeal is one by way of rehearing: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, 533 [75]. The Court's powers are exercisable where an appellant can show that, having regard to all the evidence before the appellate court, the order appealed from is subject to some legal, factual or discretionary error: see CDJ v VAJ (No 1) [1998] HCA 76; (1998) 197 CLR 172, 201-202 [111]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180 [23]. As Allsop J pointed out in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 [36], by reference to Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-8, an appeal is not a reworking of the trial taking account of impediments created by the primary Judge. To permit such a course would reduce the proceedings at first instance to little more than a "preliminary skirmish" (Coulton v Holcombe, 7). It is with that understanding that we consider the question raised in this appeal is to be approached.

28 It is beyond question that this Court has power to permit a fresh issue to be raised. And, generally speaking, that course is more likely to be permitted where no additional facts are necessary to be proved and where it turns upon only a question of construction or law: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319. The Court would however, need to be satisfied that allowing a new point to be argued would work no injustice to the other party, remembering that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised.

29 In the present case it may be that there is no evidence necessitated by the reference to the wider group. Whether that is so does not appear to us to be the critical issue. This is the fifth occasion when this matter has been the subject of decision-making. At no point in the earlier proceedings was this question sought to be raised. The last Tribunal inquiry and his Honour's consideration of the matter were conducted without any reference to the question. It is important that parties pay due and legitimate respect to the case they commence and run. There is an interest of justice in the finality of litigation: Branir v Owston (citing Crampton v R [2000] HCA 60; (2000) 176 ALR 369, [15], [157]); Metwally v University of Wollongong [No 2] [1985] HCA 28; (1985) 60 ALR 68, 71; JB Chandler Investment Company Limited (In voluntary liquidation) v Federal Commissioner of Taxation [1993] FCA 641; (1993) 47 FCR 588, 593. We should not be taken as implying that the course previously adopted by Mr Peacock or his legal advisers was in any way inappropriate.

30 In our view, the interests of justice in this case are opposed to the raising of a fresh ground and a continuation of these protracted proceedings. We would not be inclined to grant leave to amend the notice of appeal. No error is otherwise contended for with respect to his Honour's reasoning. The appeal should be dismissed with costs.

31 The question of the costs of the application for an extension of time to appeal from the decision of Wilcox J has not been dealt with but it seems to us to be inarguable. The appellant should pay the costs of the second respondent.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel and Allsop.

Associate:

Dated: 25 March 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N907 OF 2002

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

AND

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N910 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORTIMER PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

JUDGE:	KIEFEL, NORTH AND ALLSOP JJ
DATE:	25 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

NORTH J:

32 The facts relevant to this appeal, the arguments of the parties, and the central question to be resolved are set out in the reasons for judgment of Kiefel and Allsop JJ. It is not necessary for me to repeat those matters.

33 I agree with the orders proposed by their Honours for the disposition of this appeal. However, there are several matters which I will address separately.

34 The central issue to be determined arises from the fact that the appellant seeks to rely on an argument in the appeal on which he did not rely in the proceedings before Commissioner Ozdowski or Moore J. The question whether any injustice will be done by permitting the appellant to rely on the new argument requires a broad consideration of the circumstances in which the failure to raise the argument previously arose, and the consequences flowing from a decision to permit the argument to be raised on appeal.

35 As described in the judgment of Kiefel and Allsop JJ, the appellant's claims have been made now in a series of proceedings over a considerable time. In such circumstances, a relevant consideration is the need for finality to litigation. In one aspect this is a policy consideration which relates to the integrity of the legal system as an institution. Used in this sense, this consideration will rarely be determinative of the question of justice between the parties in particular litigation.

36 The need for finality to litigation must also be considered in the particular circumstances of each case against the consequences of permitting, or not, the new argument to be raised on appeal. This aspect, is a question usually considered as part of the assessment of the relative prejudice flowing to the parties as a result of the decision. It is thus necessary to address the question of prejudice to the parties in the present appeal.

37 As to prejudice to the second respondent, there was evidence before the Court that the second respondent had spent over $20,000 on the proceedings before Commissioner Ozdowski and Moore J. If the Court allowed the new argument to be raised, and if the Court upheld the argument, the second respondent would have incurred costs in relation to the hearing before Commissioner Ozdowski which could not be recovered and, hence, would have been wasted. The second respondent would also probably have been out of pocket in relation to part of the costs of the proceedings before Moore J. The appellant did not offer to pay the costs thrown away by the second respondent as a condition of the grant of permission to raise the argument on appeal. Had he done so, and had he satisfied the Court that he was in a position to pay those costs, the only prejudice relied upon by the second respondent would have been addressed. Whilst the possibility of that prejudice remained, the Court would not, in the circumstances of this appeal, permit the new argument to be raised.

38 As to prejudice to the appellant should the Court refuse to entertain the new argument, it is relevant to take into account the appellant's chances of success on the appeal. The Court will be more reluctant to shut out an appellant who has a strong argument on the appeal, than an appellant who is likely to fail on that argument in any event. Indeed, if the new argument is bound to fail, the Court would not allow the argument to be raised because it would be futile to do so.

39 For the purpose of argument, it may be accepted that the appellant would persuade the Court that the new argument is correct, and that the proper comparator group is all employees of the second respondent in the same employment stream as the appellant. In the circumstances of this case, it does not follow that the appellant would succeed on the appeal.

40 In an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) the court has a discretion to withhold relief even where the applicant has demonstrated legal error in the decision of the Tribunal. Where an applicant has deliberately taken a course before the Tribunal, and complains on review that the course adopted by the Tribunal in compliance with the applicant's submission involved legal error, the Court may refuse relief on discretionary grounds, even if the legal error is established.

41 An example of such a case is Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414. The Tribunal conducted an inquiry into the possible grant of a new television licence in Perth. Two companies were contending for the licence. A main person involved in the application of one company had been convicted of tax offences. Counsel assisting the Tribunal circulated a submission recording the fact of the convictions, and stating that, prima facie, the convictions raised a matter of serious concern which required inquiry. Counsel for the opposing contender, the applicant in the proceedings, made written and oral submissions to the Tribunal. In the written submission reliance was placed on the convictions. In the later oral submissions the applicant resiled from the submission that the convictions were relevant in themselves. The Tribunal did not address the issue of the convictions in its reasons. The applicant argued in a review brought under the ADJR Act that the Tribunal had failed to take into account a relevant consideration. Pincus J held that the Tribunal had so failed, but he refused relief. After finding that the applicant had abandoned reliance on the convictions, he proceeded at 424-5:

"The taking of that course was not a casual act. Counsel for the present applicant first lodged written submissions, in which the convictions were relied on, as mentioned above. In the course of oral argument, however, as I read the rather diffuse discussion, counsel for the present applicant distinctly declined to press the fact of the convictions as being, in itself, a reason, important or unimportant, weighing against the second respondent's case. No doubt counsel's attitude was taken upon instructions which have, it appears, subsequently been reversed. No reason for this sharp change of attitude was given, but perhaps the stance ultimately adopted before the Tribunal was merely tactical: it might have been thought that the Tribunal would not take kindly to the present applicant's seeking to take advantage of Treasure's taxation problems. Whatever the reason, it is undesirable that a party, particularly one legally represented, should be allowed to keep a point like this "in reserve". It would tend to bring the administration of justice, and in particular the functions of the Court under the Judicial Review Act, into merited disrepute if parties were encouraged to take such a course.

It is unnecessary to determine in what respects the Court's discretion under the Judicial Review Act to refuse relief differs from that which is available in proceedings for prerogative remedies, but examples of refusal of certiorari on similar grounds are to be found in R. v. Magistrates' Court at Lilydale; Ex parte Ciccone (1973) VR 122 and The Queen v. Elliott; Ex parte Elliott (1974) 8 SASR 329. In the former case, the magistrate behaved in such a way as to give an appearance of bias, but relief was refused, McInerney J remarking at p.134:

`Certainly, if a case of 'lying by' is made out, certiorari would be refused. Equally, if a clear case of election is made out, that is, that the applicant knowing the facts and knowing what alternative courses are open to him on the facts, intentionally chooses one rather than the other, he will be held to that choice (or election). In my view, however, an applicant for certiorari may also be refused relief if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, he has not objected but has taken an active part in the proceedings right down to judgment.'

Elliott's case in the South Australian Full Court considered a mistake on the part of a magistrate in recording six convictions on the one charge. Sangster J. said that there had been an excess of jurisdiction, but remarked, at p.367:

`However, not only did the defendant not complain of these things at the time (nor, indeed in his notice of appeal, which this Court is not currently considering) but the defendant consented to all eight charges (including the six charges in the one complaint) being heard together and participated in the hearing on that basis.

In my opinion, the defendant's conduct should disincline this Court from any exercise, favourable to the defendant, of the Court's discretion to grant or withhold certiorari ...'

33. I do not act on the view that every abandonment of a point before an administrative tribunal makes it proper for this Court to decline to grant relief, with respect to that point, under the Judicial Review Act. Here, however, the Tribunal had before it an inquiry of unparalleled length and cost. The potential importance of the convictions of Mr. Treasure must have been evident to the present applicant, as must have been the waste of time and money which could ensue if the Tribunal were led into legal error. The present applicant preferred to take its chance of success before the Tribunal on the basis that Treasure's convictions were not to be used in its favour; having failed before the Tribunal, it should not, I think, be allowed to take advantage of the error for which it was partly responsible."

42 A similar approach should be taken in the circumstances of this appeal. The appellant had the opportunity to institute an appeal against the judgment of Wilcox J. He did not do so. Instead, he argued before Commissioner Ozdowski that his case fell within the theoretical possibility left open by Wilcox J. The appellant, thus, took a deliberate decision not to appeal, and to conduct a further proceeding on the basis of the law established by the judgment of Wilcox J. Even if the approach taken by Wilcox J is wrong, it would bring the process of review into disrepute if the appellant was now permitted to contend against the judgment of Wilcox J after relying upon that judgment before Commissioner Ozdowski, and before Moore J. The Court would refuse discretionary relief under the ADJR Act in these circumstances. The appellant would thus, be bound to fail on the appeal even if he was permitted to rely on the new argument. There is, therefore, no prejudice to the appellant in the decision to refuse permission.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 25 March 2003

Counsel for the Appellant:	P Dodson S Beckett
Solicitor for the Appellant:	Public Interest Advocacy Centre
The First Respondent entered a submitting appearance
Counsel for the Second Respondent:	A Roberston SC M Allars
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	24 February 2003
Date of Judgment:	25 March 2003