Aleksander Peter Skorich v Merit Protection & Review Agency [1997] FCA 266 (27 March 1997)

CATCHWORDS

ADMINISTRATIVE LAW - Judicial Review - motion seeking extension of time to allow an ADJR Act review of a Public Service Disciplinary Appeals Committee decision - applicant at first dismissed, then demoted on review, after being found to have improperly authorised payments of allowances and expenses to himself - prospects of success - delay - complaint pursued by non-curial means - public interest in orderly administration of the public service.

Administrative Decisions (Judicial Review) Act 1977 , s11(1)(c)

Public Service Act 1922 (Cth) ss61; 62; reg 141

Comcare v A'Hearn [1993] FCA 498; (1993) 18 AAR 366

Hardcastle v Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Lucic v Nolan (1982) 45 ALR 411

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Telstra Corporation Ltd v Razmovski [1994] FCA 1420; (1994) 36 ALD 22

ALEKSANDER PETER SKORICH (Applicant) v MERIT PROTECTION & REVIEW AGENCY (Respondent)

No ACT G28 of 1996

FINN J

CANBERRA

27 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY )

) No. ACT G28 of 1996

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: ALEKSANDER PETER SKORICH

Applicant

AND: MERIT PROTECTION & REVIEW AGENCY

Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 27 MARCH 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. the motion to extend time be dismissed;

2. the application for judicial review be dismissed;

3. the applicant pay the 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 )

)

AUSTRALIAN CAPITAL TERRITORY )

) No. ACT G28 of 1996

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: ALEKSANDER PETER SKORICH

Applicant

AND: MERIT PROTECTION & REVIEW AGENCY

Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 27 MARCH 1997

EX TEMPORE REASONS FOR JUDGMENT

This is a motion for an extension of time in which to lodge an application for an order of review under s11(1)(c) of the Administrative Decisions (Judicial Review) Act (Cth) 1977 ("the Act"). It is a matter of agreement between the parties that the time prescribed in the Act expired in early June 1995. The application and this motion were not filed until 26 April 1996.

Mr Skorich, the applicant, is an officer in the Department of Foreign Affairs and Trade. At the time relevant to the circumstances giving rise to this application he held the position of Administrative Service Officer Class 6 ("ASO 6") and had been posted to Dublin. Amongst his functions in that posting he was, the Ambassador apart, in effect the sole approving and accounting officer for various payments to be made to officers at the Dublin office.

Eight disciplinary charges, four of which were later dismissed, were laid against him in respect of his conduct in that posting. The four of present concern related to approvals he gave to claims he himself made for what I will call allowances and expenses. Expressed in Australian dollar terms these were in the order of $5,950. It was not disputed subsequently that he was not in fact entitled to these sums, though he did not have actual knowledge of this at the time. They have since been repaid in full.

In proceedings under the disciplinary provisions of the Public Service Act 1922 (Cth), an inquiry officer found Mr Skorich guilty of the four charges of misconduct I have noted. It was directed that he be dismissed from the Australian Public Service.

He then appealed to the Disciplinary Appeal Committee (the "DAC") against three of the charges on the grounds that they should have been dismissed, and against the fourth on the ground that the action directed was too severe. The DAC confirmed the misconduct findings of the inquiry officer but, while noting that the usual course of events in such a case would be automatic dismissal, it took account of what it regarded as mitigating factors and varied the direction by directing that Mr Skorich be reduced to an ASO2 position.

The order of review the applicant seeks if an extension is granted relates only to the penalty: it is challenged on grounds of unreasonableness, of failure to take account of all relevant factors, of failing to give due weight to all relevant factors and of incorrect fact findings.

Mr Skorich had legal representation in the DAC proceedings. After he had received the reasons for decision he sought advice from his solicitors. This was well within the prescribed time for making an application to this Court under the Act. His solicitors sought counsel's advice. The advice given Mr Skorich was that he had no reasonable prospects of success in an application for review.

He previously had approached the Community and Public Sector Union. It advised him that while he could take proceedings in the Federal Court the costs would be prohibitive. He subsequently was advised, I note before receiving advice from his solicitors, that he did not qualify for legal aid for the purpose of seeking an order of review.

Thereafter he sought redress by various means none of which involved legal proceedings. I merely note that he approached the Secretary of the Department, Senator McMullan and Mr Langmore MHR, Ms Forward of the Merit Protection and Review Agency, departmental officers and the Anti-Discrimination and Equal Opportunity Board.

In August he became aware of the penalty imposed on an officer of another department charged with stealing computer components. It was markedly less severe than that imposed on him. He took these details both to the CPSU and his solicitors, asking if that information could assist in his challenging the severity of his penalty. Both informed him it was too late to seek a review.

In September/October 1995 he consulted a new firm of solicitors in relation to a workers compensation matter. As a result of discussions in relation to that matter he sought advice from another partner of the same firm at the beginning of November 1995 concerning the review of the DAC's decision. That led to the filing of this application in April 1996. That delay cannot fairly be laid in any significant degree at Mr Skorich's feet.

This is not a matter which requires any extensive review of the authorities of this Court that, in varying contexts have identified principles of relevance to the question of extending time to commence review proceedings (while acknowledging that these principles are not prescriptive): see eg Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; Comcare v A'Hearn [1993] FCA 498; (1993) 18 AAR 366; Telstra Corporation Ltd v Razmovski [1994] FCA 1420; (1994) 36 ALD 22.

The matters relied upon by the applicant in support of the extension are, first that a satisfactory explanation has been given for the delay; secondly, he has not abandoned his complaint but has pursued it by non-curial means - some comfort in this was sought to be derived from Wilcox J's second principle in the Hunter Valley case, above, at 348-349; thirdly, that no relevant prejudice would be suffered by the department if the order of review was allowed to proceed and was granted; and, fourthly, that the applicant has an arguable case. As to the last, reference was made in particular (i) to the alleged factual error in the DAC's reasons that repayment was only secured after demand; and (ii) to a list of penalties imposed by the department in what (implausibly) I am asked to infer might be comparable cases (see Ex E to the applicant's affidavit); (iii) to evidence of the department's dealings with other officers who were overpaid and made repayment of the sums received; and (iv) to the DAC's findings that Mr Skorich did not actually know he was not entitled to the allowances he paid to himself.

This, in my view, is not a case in which an extension of time ought to be granted for a number of reasons. First, Mr Skorich was in receipt of legal advice after the decision of the DAC. He relied on that advice and I conclude that, with the knowledge that an application to this Court was open to him (albeit advised against), he decided to pursue his grievance by other means. He clearly did not abandon his objection to the DAC's decision. But for the purposes of this application he can properly be said to have taken, with knowledge, the course of not making an application under the Act.

He was later advised (ie in August) that it was too late to make an order of review application and it was only in fortuitous circumstances when he changed solicitors that the prospect of making an application for an extension of time was raised. This time lapse of itself in such circumstances weighs powerfully against the grant of an extension. And I would note that the respondent has placed no little emphasis on the fact that Mr Skorich was in receipt of legal advice both at the DAC hearing and within the time prescribed by the Act for seeking an order of review.

Secondly, as Wilcox J indicated in the Hunter Valley case, above, at 352:

"An applicant concerned to challenge a decision which has implications for other people or for day to day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications."

The expeditious implementation of the Public Service Act 1922 disciplinary regime: cf eg Public Service Act (Cth) ss61(2), s62(1), s62(10) and reg 141; and the need for its orderly administration across the Australian Public Service: cf Lucic v Nolan (1982) 45 ALR 411 at 416, are factors of no little public interest significance of which account needs to be taken in a case such as this. They again tell against the grant of an extension of time - the more so given the applicant's appreciation of the time limit involved.

Thirdly, importantly, there is the question of the merits of the substantive application. This has been the matter of greatest emphasis in the present application. I should say at the outset that, having been addressed in some detail on it by the respondent in particular, and having been taken to a range of evidence on the various matters said to betray reviewable errors in the DAC's decision, it provides little to comfort the applicant in this application.

The ground alleging that the penalty imposed was so unreasonable as to be contrary to law is, in my view, particularly weak. While the DAC did not find Mr Skorich had actual knowledge that he was not entitled to the allowances, it nonetheless found that he ought to have known in virtue of his position and responsibilities; that he did not make any genuine attempt to find out his proper entitlement.

It is clear from the reasons that the DAC placed no little emphasis on the circumstances that Mr Skorich was de facto in a position to make payments to himself. It is not surprising, then, that their emphasis was on the responsibilities of "authorising officers" and on the need to demonstrate integrity. Consistent with the `protective' object of disciplinary proceedings: cf Hardcastle v Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593 at 597: a reasonable justification for an otherwise apparently harsh penalty could readily be given in a case such as this: Mr Skorich was "handling public monies" as the DAC noted.

The ground based on failure to take account of penalties imposed on other DFAT officers for misconduct is without arguable substance on the evidence before me. Quite apart from the question whether other penalties were matter which the DAC was obliged to take into account: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39ff - and the respondent submits it was not - I have no evidence before me to suggest that the penalties referred to by the applicant in the annexure to his affidavit were in any way ones which could be said to be relevant to the adjudication of his own case.

Another ground of review was that the DAC failed to give due weight to two factors in mitigation. These were (a) the effect of the demotion on his family and (b) the fact that the incident was an isolated one. The DAC referred in substance to these matters (to the first directly, to the second obliquely). It would be difficult to say that this was not one of those cases where:

"it is ... for the decision-maker and not the court to determine the appropriate weight to be given to [these] matters." Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above, at 41.

The final ground argued explicitly related to the allegedly incorrect fact finding that Mr Skorich only repaid the overpayment after this was "demanded" by the Department. While there well could be reasonable disagreement on the appropriateness of the language of "demand" in the DAC's reasons given the evidence to which I have been taken, I do not regard this matter, even if arguable by the applicant as being material to the decision, as anywhere near sufficient to outweigh the countervailing considerations to which I have referred. I should say I rather doubt that it was of particular moment in any event.

I dismiss the motion to extend time, and order that the application be dismissed.

I order the applicant pay the respondent's costs.

I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate

Dated: 7 April 1997

Counsel for the applicant : I Nash

Solicitors for the applicant : Snedden Hall & Gallop

Counsel for the respondent : T Howe

Solicitors for the respondent : Australian Government Solicitor

Date of hearing : 6 March, 27 March 1997

Date of judgment : 2 April 1997