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Dunstan v Orr [2008] FCA 31 (25 January 2008)

Last Updated: 29 January 2008

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2008] FCA 31

ADMINISTRATIVE LAW – Application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") – where applicant former employee of Commonwealth Public Service – where first respondent delegate of Secretary under s 63B Public Service Act 1922 (Cth) ("PSA Act") – where first respondent suspended applicant from duty pursuant to s 63B PSA Act – where third respondent authorised officer under s 61(2) PSA Act – where first respondent suspended applicant after being informed by third respondent that third respondent of opinion that applicant may have failed to fulfil duty as officer – where second respondent authorised officer under s 61(2) PSA Act – where second respondent charged applicant with failing to fulfil duty as officer pursuant to s 61(2) PSA Act – whether third respondent made a decision to which ADJR Act applies – whether first respondent made a decision to which ADJR Act applies – whether second respondent made a decision to which ADJR Act applies

Held: forming and conveying of opinion to first respondent not final or operative and determinative – third respondent did not make decision to which ADJR Act applies – suspension of applicant had immediate impact on applicant – legislation imposes limited natural justice requirements upon decision to suspend – suspension can operate to terminate officer’s salary – first respondent made decision to which ADJR Act applies – unnecessary to decide whether second respondent made decision to which ADJR Act applies

ADMINISTRATIVE LAW – Application for judicial review under ADJR Act – where applicant suspended after meeting where matters of concern raised – where applicant not given prior notice of matters to be raised – where notice not given because of security concerns – whether breach of rules of natural justice – whether failure to comply with s 63B(1C) PSA Act – whether improper exercise of power – whether error shown in decision of first respondent

Held: to extent that notice was not given of matters of concern failure to give notice authorised by s 63B(1C)(b) PSA Act – no breach of rules of procedural fairness – no failure to comply with s 63B(1C) PSA Act – factual basis of allegation of improper exercise of power not made out on evidence – no error shown in decision of first respondent

ADMINISTRATIVE LAW – Application for judicial review under ADJR Act – where second respondent charged applicant pursuant to s 61(2) PSA Act – whether breach of rules of natural justice – whether failure to comply with statutory requirement that decision be made "as soon as practicable" – whether failure to take into account relevant considerations – whether irrelevant considerations taken into account – whether error shown in decision of second respondent

Held: PSA Act addresses natural justice requirements at each stage of disciplinary process – second respondent not obliged to afford natural justice beyond that prescribed by PSA Act – no breach of rules of natural justice – no unreasonable delay shown – alleged relevant considerations taken into account – alleged irrelevant considerations either not irrelevant or not taken into account – no error shown in decision of second respondent

PROCEDURE – PLEADINGS – AMENDMENT OF PLEADINGS – Application for leave to amend Statement of Claim – where proposed amendment added two new causes of action against respondents – where different claims raised – where application made at very late stage of trial – where consequences of amendment likely to include recalling of witnesses and calling of new witnesses and adjournment of trial

Held: application for leave to amend refused

EVIDENCE – CLIENT LEGAL PRIVILEGE – where privileged document disclosed by respondents’ solicitors to applicant – where disclosure inadvertent – whether client knowingly and voluntarily disclosed document – whether privilege lost pursuant to s 122(2) Evidence Act 1995 (Cth) – whether document disclosed with express or implied consent of client – whether privilege lost pursuant to s 122(4) Evidence Act 1995 (Cth) – whether privilege lost pursuant to s 122(1) Evidence Act 1995 (Cth)

Held: disclosure not knowing or voluntary – privilege not lost pursuant to s 122(2) – disclosure not consensual – privilege not lost pursuant to s 122(4) – s 122(1) not applicable to claims of waiver by out of court disclosure

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 10
Evidence Act 1995 (Cth)
Migration Act 1958 (Cth)
Public Service Act 1922 (Cth) ss 61(2), 62, 63B

Australian Broadcasting Tribunal v Bond [1990] HCA 45; (1990) 170 CLR 306 applied
BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 referred to
Bennett v Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 referred to
Buonopane v Secretary of the Department of Employment, Education and Youth Affairs (1998) 87 FCR 173 followed
Carnell v Mann (1998) 89 FCR 247 referred to
Dunstan v Farr (1999) 60 ALD 192 referred to
Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 referred to
Edelsten v Health Insurance Commission (1990) 27 FCR 56 applied
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123 referred to
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 referred to
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 referred to
Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex Parte Applicants S134/2002 [2003] HCA 1; (2002) 211 CLR 441 referred to
Secretary to the Department of Justice v Osland [2007] VSCA 96 referred to
SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 referred to
Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 followed
Talbot v NRMA Ltd [2000] NSWSC 602 referred to
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 referred to
Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 referred to
The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 referred to

COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN NEVILLE HIGHAM AND JOHN ROBERT GROWDER
ACD 77 OF 1997

BESANKO J
25 JANUARY 2008
ADELAIDE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 77 OF 1997

BETWEEN:	COLIN GEORGE DUNSTAN Applicant
AND:	ROBYN ORR First Respondent JOHN NEVILLE HIGHAM Second Respondent JOHN ROBERT GROWDER Third Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	25 JANUARY 2008
WHERE MADE:	ADELAIDE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The application be dismissed.

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 DISTRICT REGISTRY	ACD 77 OF 1997

BETWEEN:	COLIN GEORGE DUNSTAN Applicant
AND:	ROBYN ORR First Respondent JOHN NEVILLE HIGHAM Second Respondent JOHN ROBERT GROWDER Third Respondent

JUDGE:	BESANKO J
DATE:	25 JANUARY 2008
PLACE:	ADELAIDE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1 This is an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). Mr Colin George Dunstan is the applicant and in his Statement of Claim dated 4 November 1998 he challenges what he alleges to be three decisions made under the Public Service Act 1922 (Cth) as it was in 1997 ("PSA"). The first decision he identifies was made by Mr John Robert Growder on 4 June 1997 when, as an authorised officer under s 61(2) of the PSA, Mr Growder informed an authorised person under s 63B that he was of the opinion that the applicant may have failed to fulfil his duty as an officer. Mr Growder is the third respondent to the application. The second decision he identifies was made by Ms Robyn Mary Orr on 4 June 1997 when, as a delegate of the relevant Secretary under s 63B, Ms Orr received the information from the third respondent previously referred to and decided to suspend the applicant from duty. Ms Orr is the first respondent to the application. The third decision he identifies was made by Mr John Neville Higham on 13 October 1997 when, as an authorised officer under s 61(2), Mr Higham decided under that subsection to charge, and did in fact charge, the applicant with failing to fulfil his duty as an officer.

2 In his amended application for review the applicant refers to decisions in addition to the three decisions identified in the Statement of Claim. He refers to a decision by the first respondent on 7 July 1997 to continue the suspension of the applicant, to a failure by the second respondent to decide if the applicant should be charged, and to a decision by the first respondent on 17 October 1997 to suspend payment of the applicant’s salary. The second respondent’s alleged failure to decide if the applicant should be charged is dealt with elsewhere in these reasons. Putting that particular matter aside I think it is appropriate to proceed by reference to the case pleaded in the Statement of Claim dated 4 November 1998 because that is the case the respondents came to meet at trial.

3 The applicant contends that each of the three decisions is a decision to which the ADJR Act applies and he claims orders under s 16 of the ADJR Act quashing those decisions and other orders. It is not immediately apparent in the circumstances of this case what orders would be appropriate under s 16 if one or more of the decisions were liable to be impugned. The parties seem to be agreed that a sum of money is at stake being lost salary between 13 October 1997 and 3 December 1998, although they are not agreed as to the amount. On 4 December 1998 the applicant was arrested and charged with offences involving the sending of explosive devices through the post. The applicant tendered a list of the names of persons to whom he sent the devices. They included the second and third respondents and a solicitor at the AGS who had handled the matter. The applicant was convicted on a number of counts and sentenced to imprisonment for a period of 9 years commencing on 26 May 1999 with a non-parole period of 5 years commencing on the same date. I do not need to explore the issue of relief any further because on my findings none of the decisions are liable to be impugned.

4 The applicant’s dispute with the ATO, its officers and others has a long history. A good deal of the history is summarised in other judgments of this Court and I refer in particular to Dunstan v Farr (1999) 60 ALD 192; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885.

5 I will refer to each of the acts or events as a "decision" using that word in a broad sense. In due course, it will be necessary for me to address whether each of them is a decision within the provisions of the ADJR Act. It should be noted that neither party suggested that the conduct provisions of the Act are relevant (s 6).

6 The applicant alleges that in the case of each decision, there was an error of a type falling within s 5 of the ADJR Act.

7 In relation to the first decision, the applicant alleges that the third respondent committed a breach of the rules of natural justice (s 5(1)(a)), that his decision involved an improper exercise of the power in s 63B of the PSA (s 5(1)(e)) and that there was no evidence or other material to justify the decision made by the third respondent (s 5(1)(h)).

8 In relation to the second decision, the applicant alleges that the first respondent committed a breach of the rules of natural justice, that the first respondent did not observe the procedures that were required by law to be observed in connection with the decision (s 5(1)(b)) and that the first respondent’s decision involved an improper exercise of the power in s 63B of the PSA.

9 In relation to the third decision, the applicant alleges that similar errors (in terms of the errors identified in s 5 of the ADJR Act) were made by the second respondent as were made by the first respondent in the case of the second decision and that, in addition, there was no evidence or other material to justify the decision made by the second respondent.

10 Each of the respondents submits that the decision made by him or her was not a decision to which the ADJR Act applied. It is submitted that none of the alleged decisions was a "decision" to which the Act applied as that word has been interpreted in the authorities. In the alternative, each respondent submits that the decision made by him or her did not involve an error of the type alleged by the applicant. In the further alternative, each of the respondents submits that even if the applicant overcomes the first two hurdles, relief should be refused in the exercise of the court’s discretion. It is convenient to deal with the last submission at this stage. The respondents rely on s 10(2)(b) of the ADJR Act which is in the following terms:

(2) Notwithstanding subsection (1):
...

(b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

11 The respondents rely on s 10(2)(b)(ii) and submit that adequate provision is made under the PSA for the review of the decisions. That submission must be rejected because none of the appeal or review provisions in the PSA were available to the applicant in the case of the decisions, or any one of them. No inquiry into the charges was ever held.

12 On the fourth day of the trial the applicant applied to amend his statement of claim. By his application to amend, the applicant sought to add two new causes of action each giving rise, so it was alleged, to a right to damages against the first respondent and the third respondent respectively. After hearing submissions, I refused the application to amend. It is convenient for me to set out my reasons for doing so at this point.

13 The proposed amendment contained an allegation by the applicant that the first respondent owed him a duty of care and that she acted in breach of that duty by certain conduct performed in the second half of 1997 and the first half of 1998. I will not outline the alleged breaches in detail but they include a failure to ensure an inquiry under s 62 was conducted and a failure to ensure statutory requirements were complied with after the applicant was notified that his position was excess. The proposed amendment also contained an allegation that the first respondent and the third respondent acted in breach of the applicant’s contract of employment. Again, I will not outline the particulars of the alleged breaches. The proposed amendment also contained an allegation that the respondents’ actions aggravated or exacerbated the applicant’s pre-existing psychological condition, and that his psychological condition led to his loss of employment. Although it is not entirely clear, it would seem that the applicant sought by the amendment to claim damages from the respondents for the loss of his employment or, at the very least, for psychological injury.

14 In considering the application for leave to amend, I had regard to the well-known principles referred to in the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

15 The applicant sought to put forward new and quite different claims at a very late stage of the trial. It was clear, at least from the respondents’ point of view, that it was likely that if the amendments were allowed, witnesses would have to be recalled and new witnesses may need to have been called. If the amendments were allowed, the trial would have had to be adjourned and it was likely that another pre-trial set of procedural orders would need to have been made. The applicant asserted, but did not establish to my satisfaction, that his application to amend had come forward only because of late discovery or disclosure of material by the respondents. He certainly did not establish that the application to amend could not have been made well before the commencement of the trial. In the circumstances, I did not think that it was appropriate to allow the amendments and I refused leave to amend. In those circumstances I did not need to consider some of the other grounds advanced (but not developed) by the respondents in opposing the application for leave to amend. Those grounds included an assertion that the proposed new causes of action were out of time and statute-barred and that some of the proposed new claims were unarguable as a matter of law.

The facts

16 The applicant gave evidence. The bulk of his evidence-in-chief was given by way of affidavit and he was cross-examined by counsel for the respondents. He was in 1997 and remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others. He tended to focus on matters which were not directly relevant to the issues in the proceeding. He is convinced that there was a conspiracy against him led by the third respondent. A good deal of his evidence was irrelevant to the issues raised in this proceeding and other "evidence" in his affidavits was in reality submissions about why I should find that the third respondent was motivated by improper considerations. I approach the applicant’s evidence with considerable caution and I accept the evidence of the respondents where there is a conflict. For reasons I will give, I reject the applicant’s evidence that he was given an access privilege to the ATO computer system in May 1997. Further, some of the evidence he gave directed to establishing possible innocent explanations for certain system violations was confusing, but even if accepted, did not rise anywhere near a level sufficient to establish an error of the type identified in s 5 of the ADJR Act.

17 In reaching these conclusions I have had regard to all the evidence in the case including the documentary evidence and I have borne in mind that before me the applicant was not legally represented.

18 The applicant called Ms Erin Holland as a witness. She is a Commonwealth public servant who is employed in the ATO. She appeared under subpoena. She was an honest and straightforward witness and I accept her evidence. However, for reasons I will give, her evidence does not assist me in resolving the issues in the proceeding

19 The respondents each gave evidence. The bulk of their evidence was contained in affidavits each of them had sworn. Each respondent was cross-examined at some length by the applicant. Each respondent was an honest and straightforward witness and I accept the evidence they gave. The respondents called Mr John Molineux and Mr David Pasch as witnesses. Mr Molineux is a Commonwealth public servant who is employed in the ATO. He took notes of an important meeting held on 4 June 1997 and involving the applicant, the first respondent and the third respondent. He was an honest and straightforward witness and I accept his evidence. Mr Pasch is what is called an AP compliance officer and he is employed by IBM Australia and New Zealand. At the request of the third respondent he prepared a report dated 12 June 1997 about a number of apparent system violations of the ATO’s mainframe computer by the applicant during the period from January to May 1997. He was an honest and straightforward witness and I accept his evidence.

20 The applicant made various challenges to the evidence called by the respondents. Those challenges and my reasons for rejecting them, cannot be fully understood without first understanding the events surrounding the three decisions. I will now set out in chronological order the events surrounding the three decisions. The facts which follow are largely uncontentious but where there is a dispute I will indicate its nature.

21 It is convenient to start with a brief description of the ATO’s computer system. The ATO has two different "computer environments". They were described by the third respondent and later by the second respondent as the mainframe environment and the TAXLAN environment. The ATO’s two mainframes are production and development, respectively, and they are primarily used for the storage and "manipulation" of taxpayer data. They are also used to store and process the personnel records of ATO staff, including salary and leave details. These particular records are stored in a database known as the National Organisational Management Database (NOMAD). A database is a computer file which stores records which can be searched, sorted and updated by those persons who have appropriately authorised access to the database. The NOMAD database is run on the production mainframe. Every staff member of the ATO has access to their own salary and leave records in NOMAD, but they do not have access to the records of other staff. The only persons who have access to the records of other staff are those responsible for personnel administration. The applicant was not responsible for personnel administration.

22 The ATO’s mainframe environment was run on IBM software and that included what the witnesses called the "RACF" software. The RACF software controlled a person’s level of access to the mainframe system. A person’s RACF profile was created by a system security administrator and it defined the person’s authorisations in a mainframe environment. A person may have no authorisation or a "read-only" authorisation or an "update" authorisation. An unauthorised attempt to read or update data on the mainframe was recorded and was referred to as a system violation.

23 The TAXLAN environment is separate from the mainframe environment. It contains the ATO’s word processing, spreadsheet and electronic mail software. It is possible to have access from any individual terminal to either the mainframe or TAXLAN environment.

24 The third respondent joined the Commonwealth public service in 1968 and he has considerable experience working in the development and use of computers, including training of staff, database development, quality assurance and applications development and support. He has also been involved in writing computer programs. From 1986 to 1997, he was Assistant Commissioner in the IT Services Line of the ATO. His branch consisted of 700 staff members employed on a national level.

25 The applicant was a Commonwealth public servant employed within the IT services group of the ATO, between 1987 and December 1995. The applicant was absent from work due to illness from 2 January 1996 to 15 December 1996. He returned to work in December 1996 and from that time to about 5 May 1997 he was under the direct supervision of the third respondent. His position was that of a senior information technology officer grade B.

26 When the applicant returned to work in December 1996 the third respondent was mindful of giving him such work as would give him the best opportunity to reintegrate into the workforce. The applicant was given a number of projects between his return to work in December 1996 and the date of his suspension from duty (that is, on 4 June 1997). The first was referred to as the "business resumption planning project" ("BRP project"). The third respondent considered that it would take the applicant two to three months to complete the BRP project. He considered that all the resources the applicant would need for the project were available in the TAXLAN environment, save perhaps for internet access for personal research for which the applicant never asked. He did not consider that the applicant would need access to the mainframe computers. He said that all the applicant was required to do was to carry out research and prepare a paper. The research could be done by discussion with others and reading books. By about mid-March 1997, the third respondent became concerned about the time it was taking the applicant to complete the project and by the extent to which he appeared to be accessing the ATO mainframes.

27 The third respondent arranged a second project for the applicant to undertake after he had finished the BRP project. The second project was referred to as the "applications development environment project" and the third respondent and the applicant discussed what it would involve in late March or early April 1997. The third respondent asked the applicant to prepare a document setting out the proposed terms of reference for the project. However, in late April or early May 1997, the third respondent became aware that the applicant had commenced legal proceedings against three Commonwealth public servants who worked within the ATO. The third respondent discussed this action with the applicant on 2 May 1997 and then on 6 May 1997, he decided that he could not allow the applicant to proceed with the applications development environment project because that project would involve the applicant working in close proximity to people he was pursuing by way of legal proceedings. The applicant sought from the third respondent written reasons for his decision, apparently under s 13 of the ADJR Act and, on 7 May 1997, the third respondent provided written reasons for his decision to the applicant.

28 The third and final project discussed by the third respondent and the applicant was referred to as the "single sign-on project". That project was discussed between them on or about 8 or 9 May 1997. The third respondent asked Mr Geoff Best to supervise the applicant during the period in which he was carrying out the project, and the applicant commenced working on the project on or around the dates it was discussed.

29 As I have said, the third respondent had become concerned about the applicant’s usage of the mainframes and he asked Mr Best "to keep an eye" on the applicant’s mainframe access. The third respondent said that on or around 6 or 7 May 1997, he received information from Mr Best that caused him to carry out further investigations into the applicant’s mainframe usage. It is likely it was a little later than this bearing in mind the timing of the events referred to in the previous paragraph. Nevertheless, I am satisfied that the relevant events happened and that the steps the third respondent then took may be summarised in point form as follows:

1. On 7 or 8 May 1997 he asked Mr Graham Littlejohn, who was a computer specialist working under Mr Best, to perform an audit of the mainframe logs to check the applicant’s usage.
2. At about the same time, he spoke to the first respondent about the ATO’s options if the applicant had been making unauthorised use of its mainframes.
3. Within two to four days, Mr Littlejohn gave the third respondent material showing a number of system violations by the applicant.
4. The third respondent formed the view that the applicant was seeking access to a number of files including the following:

 Files showing any variations to the normal pay of any staff member in the ATO;

 Files worked on by people in the database area of the ATO which were used in the running of the ATO’s mainframe, including a file belonging to one of those persons against whom the applicant had brought legal proceedings; and

 Files belonging to the ATO’s senior security administrator, who was the RACF administrator for the ATO. This person could look at anything in the ATO’s computer system. As the third respondent said, he has "the power to corrupt or destroy all the mainframe files that contain data about taxpayers".

5. In late May 1997 the third respondent ascertained that the applicant’s system violations were abnormal compared with his peer group and that the amount of time he spent on the mainframe from December 1996 to late May 1997 was over 200 hours.

30 The third respondent had not considered that the applicant would have needed any significant access to the ATO’s mainframes in the period from December 1996 to May 1997, and he had never discussed access to the mainframes with the applicant. He viewed the problem as a serious one and one which had become urgent. He knew that the applicant was a disaffected staff member who was aggrieved by the actions of the ATO and of some of its staff.

31 At about this time, and quite independently of his concerns about the applicant’s access to the ATO’s mainframes, the third respondent prepared a report about the applicant’s program for returning to work and how it had been carried out between mid-December 1996 and early May 1997. The report, which I will refer to as the return to work report, is dated 27 May 1997.

32 The third respondent decided to confront the applicant about his usage of the mainframes. He decided that at the same time, he would give him the return to work report. The third respondent had spoken to the first respondent by telephone in about mid-May 1997, and he had given her details of the applicant’s work history and of his concerns about the applicant’s usage of the mainframes. They had discussed the options as to how to proceed and the first respondent had later spoken to a case manager about the applicant’s return to work programme and to Mr Molineux, who was based in the ATO’s office in Melbourne, about discipline and suspension issues.

33 The third respondent prepared a series of questions to ask the applicant at a meeting he proposed to have with the applicant and he discussed those questions with the first respondent. They agreed that they would not give the applicant prior notice of the fact that they would confront him about his mainframe usage. They decided not to give the applicant notice because security issues were involved and they were concerned that if given notice, the applicant could take steps which could interfere with, or compromise information stored on the mainframe, or otherwise harm the system.

34 For her part, the first respondent held a delegation enabling her to suspend the applicant from duty under s 63B of the PSA. She was briefed on the apparent system violations by the third respondent. For his part, the third respondent was an authorised officer for the purposes of s 61(2) of the PSA and would, if he formed the opinion that the applicant may have failed to fulfil his duty as an officer, provide that opinion to the first respondent under s 63B(1)(b). The evidence is that of the two of them, the third respondent was the one with sufficient knowledge in information technology to determine the adequacy of any answers given by the applicant. Before the meeting, the third respondent had advised the first respondent that, for the reasons he gave, it "would be extremely difficult" to give the applicant other work which did not involve having any access to the ATO’s computer systems.

35 The meeting took place on 4 June 1997. The applicant, the third respondent, the first respondent and Mr Molineux were present. Mr Molineux took notes of the meeting and those notes were subsequently produced in typewritten form. He did not otherwise play any part in the meeting. The third respondent asked the applicant the questions he had previously prepared. In the case of many of the violations the applicant said that he had no recollection of the matter about which he was questioned. The third respondent considered that the applicant’s responses were unsatisfactory. He and the first respondent left the room in which the meeting was held. They then discussed the matter between themselves. The third respondent advised the first respondent that the applicant’s responses were unsatisfactory and that until more was known his opinion was that the applicant was a potential risk to the ATO’s computer systems and that until the matter was further investigated he ought to be denied any further access to those systems. The first respondent agreed and she decided to suspend the applicant. She formed the view that the interests of the ATO, particularly its security systems, were best served by suspending the applicant and conducting a more formal investigation. She signed a notice of suspension under s 63B of the PSA and gave it to the applicant. Relevantly, the notice said:

1. WHEREAS an officer authorised for the purposes of subsection 61(2) has informed me that she is of the opinion that you may have failed to fulfil your duty as an officer within the meaning of s 56 of the Act;
2. AND WHEREAS having considered your comments I am of the opinion that it would be prejudicial to

* the effective operation of the service
* the interests of the public
* your interests
* the interests of your fellow officers

if you were to continue to perform the duties of your existing office pending a decision whether you are to be charged with misconduct.
3. TAKE NOTICE THEREFORE THAT I hereby suspend you pursuant to s 63B of the Act with effect from the time of delivery of this notice to you. ...

36 Although in paragraph 1 of the notice reference is made to information provided by a female, I am satisfied the third respondent provided the opinion required by s 63B(1)(b) and that the first respondent made the decision to suspend and that both were authorised to act in the way each did.

37 The third respondent and the first respondent discussed who should undertake the investigation and they agreed that it should be a person, to use the first respondent’s words, "not immediately associated with" the applicant "in order to maximise the objectivity (and perceived objectivity on Colin Dunstan’s part) – of the investigation process".

38 Shortly after the meeting on 4 June 1997 the third respondent instructed Mr David Pasch to examine the apparent system violations of the ATO’s mainframe computer by the applicant. Mr Pasch’s duties at that time included general mainframe systems programming with the mainframe security product, RACF, as his specialisation. As part of his duties, he was responsible for the maintenance of the RACF product and also for implementing IBM’s internal control systems, including maintenance and review of security reporting applications. Mr Pasch was required to assist the security administration teams with investigations of potential security interests.

39 The third respondent provided terms of reference to Mr Pasch and under the heading "Purpose of this Assignment" he said the following:

The purpose of this assignment is to review the evidence provided by the ATO and give an independent assessment of the severity of these violations.

I would like this achieved through a short written Report which contains:

1. Advice and comments in relation to each of the "recorded violations" in terms of:

 The opportunity of others to falsify the systems records or reports produced;
 The contents of the data sets and their purpose in the ATO environment; and
 An assessment of the security implications of each.

2. Comment in respect of the recorded behaviour of this User when compared with the access records of his peer group and a number of other ATO officers. The ATO is concerned about the "intent" behind these actions; and
3. An interpretation of TaxLan copies of a number of mainframe listings provided.

40 Mr Pasch prepared a report dated 12 June 1997 and in his "overview" Mr Pasch expressed the following opinions:

The violation reporting was validated and there is a high degree of confidence in the reports, although the integrity of SMF and system log data used could not be guaranteed.

Violations were recorded against a variety of data, the most serious being the read attempts to NOMAD production data and datasets belonging to users with security administration authorities, as well as an update attempt to commonly-used system EXEC library.

Personal datasets were examined in an effort to understand the violations which had been generated. This investigation revealed analysis of DB2 security as well as analysis of fire call and access groups within RACF appeared to have been undertaken by the user.

Both the violations generated, plus the analysis that appears to have been performed, can be interpreted as attempts to circumvent security controls and as such explanations need to be obtained.

If no acceptable explanations are available, the ATO must consider its actions.

41 In his report Mr Pasch also set out a series of questions which he suggested should be asked of the applicant. The third respondent formulated a further series of questions based on Mr Pasch’s report and on 16 June 1997 he wrote to the applicant enclosing Mr Littlejohn’s report of system violations, the series of questions he prepared for the meeting to be held on 4 June 1997, the typewritten notes of that meeting and the further questions he prepared based on Mr Pasch’s report. The applicant provided a detailed response by letter dated 18 June 1997.

42 Thereafter, the third respondent was involved in briefing the second respondent about the matter.

43 In his evidence Mr Pasch provided a clear description of the system violations and characterised them in the following way:

1. Attempt to look at NOMAD production data. The material included in the data consisted of the personal details of ATO staff including salary and wage details.
2. Attempt to update a system library which is software which makes the operating system run. If the attempt had been successful the operating system may have been compromised and other users could have unwittingly performed activities that they had not intended to. Mr Pasch said that an attempt to update a system library is a common way of trying to "hack" into an operating system, and is termed a Trojan horse style of attack.
3. Attempt to access files used by various administrators, being database administrators, security administrators and other support personnel, and Mr Pasch expressed the view, which I accept, that if a person intended to compromise an operating system, an examination of these files would inform the individual of the security structures that had been set up and any weakness in the system.
4. Attempt to analyse firecall and access groups, that is to say, people that had after hours or emergency type access into ATO computer systems. Mr Pasch expressed the same view in relation to this matter as he did in relation to the matter referred to in 3.

44 The second respondent joined the Commonwealth public service in 1969. He has been employed in the computing field in a number of different capacities including writing, testing and installing computer programs and managing computer software, networks and databases. He commenced working within the ATO in 1986 and he was involved in the establishment of a new computer infrastructure. Thereafter he managed all of the ATO systems software, that is, all the software necessary for the operation of the computer system. From 1995 to October 1997 he was an Assistant Commissioner working in what was known within the ATO as the "individuals non-business line". That section within the ATO was involved in the management of computer systems for the income tax functions of the ATO. In October 1997 he became an Assistant Commissioner for Information Technology in the tax reform project. That position involved him in an examination of systems issues in relation to tax reform.

45 On 18 June 1997 the second respondent was asked by the third respondent to act as an authorised officer under the PSA in relation to a disciplinary issue involving the applicant. At the time, the second respondent was an authorised officer for the purposes of s 61(2) of the PSA.

46 In order to carry out his task under s 61(2) of deciding if the applicant may have failed to fulfil his duty as an officer and, if so, whether he should be charged, the second respondent collected information and communicated with the applicant.

47 As far as collecting information is concerned, the second respondent obtained copies of Mr Pasch’s report, a transcript of the meeting held on 4 June 1997 and the applicant’s letter to the third respondent dated 18 June 1997. He also obtained written confirmation of his authorisation. The second respondent gave evidence as to his understanding of Mr Pasch’s report. He said that he understood Mr Pasch’s first conclusion was that it was highly likely that the reports of the system violations were correct. His understanding was that the three violations which Mr Pasch identified as the most serious were as follows:

1. Attempts to read NOMAD production data being personnel data about staff, such as date of birth, address, salary and leave entitlements;
2. Attempts to read computer files or datasets of persons within the ATO who are responsible for its security system. Those files or datasets may have within them the person’s password or USERID.
3. Attempts to change a computer program that contains instructions upon which the mainframe computer systems run. This violation occurred on 28 April 1997. The second respondent understood that Mr Pasch was expressing the opinion that the applicant may have been trying to alter the scope of his authority to do things in the mainframe system in a way that bypassed the need to request the RACF administrator to change the applicant’s RACF profile.

48 The second respondent spoke with the third respondent, Mr Littlejohn and Mr Best, between 20 and 26 June 1997. The third respondent provided the bulk of the information with certain matters being confirmed by either Mr Littlejohn or Mr Best. The third respondent advised the second respondent of the following matters. First, after describing the nature of the BRP project the third respondent said the applicant did not require access to the mainframes for the purpose of writing his paper. Secondly, the third respondent advised the second respondent, and this matter was confirmed by Mr Best, that the applicant never approached them during the course of performing his employment about computer access levels. Thirdly, the third respondent advised the second respondent, and this matter was confirmed by Mr Littlejohn, that on examination of system violations by others there were, apart from password errors, which were relatively common, very few system violations by other people of the type recorded by the applicant.

49 The second respondent also spoke by telephone with Mr Pasch and Mr Pasch said to him words to the following effect:

The records of Mr Dunstan’s computer use suggested he may have been "navigating" the ATO computer system in search of a point of weakness through which he could access systems files, which in turn could have enabled him to access production data.

50 In terms of his communications with the applicant, the second respondent spoke to the applicant on the telephone on 26 June 1997 and wrote to him on 1 July 1997. In his letter to the applicant he said:

Last Friday, 27 June 1997, I telephoned you to inform you that I was the Authorised Officer in relation to the consideration of allegations of misconduct which have been made against you.

In that conversation you asked that I provide some material to define my role. Attached is a minute from HR Services which describes that role.

I also mentioned that I would need to discuss the allegations with you as part of this role this week. Unfortunately, other commitments have generated delays to having that discussion. I will now try to arrange a time during the week commencing 7 July 1997. I will contact you to confirm a date and time.

51 The applicant responded by letter dated 4 July 1997. Part of what he said is as follows:

Please note:

1. I was interviewed at some length by Mr John Growder and Ms Robyn Orr on 4 June 1997.
2. On Friday, 13 June 1997, Mr Growder advised me that an independent review of my work had been undertaken by an unnamed IBM consultant.
3. Consequent upon this "independent review", Mr Growder handed me a list of 19 questions – on Monday, 16 June 1997. He directed that I furnish written answers within 2 days – by close of business on Wednesday, 18 June 1997.
4. Mr Growder had in his possession on 14 June 1997 a reasonably detailed transcript of the interview that I attended on 4 June 1997. (See 1 above.)
5. On Wednesday, 18 June 1997, I supplied written answers to Mr Growder’s 19 questions – as per his direction of 16 June 1997. These answers are quite comprehensive, especially in view of the limited time that I was given to respond. My response is 8 typewritten pages in length.

In relation to your proposal to arrange a date and time during the week commencing 7 July 1997 to hold some discussion:

1. If not for being suspended from duty, I had intended to be on recreation leave for the period Monday, 7 July 1997 to Friday, 18 July 1997 inclusive.
2. I have a number of family and other commitments to attend to, including:

a. My sister-in-law and her daughter are visiting from Paris, and are staying with my wife and me.
b. My father is quite ill.

In view of the above, I request that, subject to there being a legitimate reason for you to discuss anything with me, that you contact me on Monday 21 July 1997 to confirm a date and time.

In the interim, please carefully review the document I supplied to Mr Growder on 18 June 1997, together with the record of interview I attended on 4 June 1997.

You could also use this period to familiarise yourself with:

1. Commonwealth Crimes Act, 1914 – Part III – Offences Relating to the Administration of Justice. See sections 36A, 41, 42 and 43.

2. Also within the Commonwealth Crimes Act 1914, see section 5.
3. Commonwealth Sex Discrimination Act 1984, section 94.

4. My understanding that public servants are under an obligation to not follow unlawful directions. This would include directions to aid in the commission of a criminal offence. (I think this may be in the Public Service Act that is available on TAXLAN under the "Commonwealth Managers Toolbox" icon – as is the text of the Commonwealth Crimes Act 1914.)

52 Based on this response from the applicant the second respondent considered that the applicant was of the view that he had put forward all relevant information and that he did not want to speak to the second respondent. In my opinion, the second respondent’s conclusion was one reasonably open to him.

53 The second respondent was required to travel overseas in August 1997 and on his return at the end of September 1997, he had decided that it was appropriate to charge the applicant with misconduct under the PSA. He considered that the implications of the applicant’s attempt at mainframe access could be very serious and that the circumstances surrounding the applicant’s attempted security breaches warranted further investigation. He did not consider that counselling would be sufficient.

54 Two charges against the applicant were laid by the second respondent on 13 October 1997. Relevantly, the charges were in the following terms:

Charge A:

I, John Neville Higham, SES Band 1, Australian Taxation Office, National Office, Canberra, an officer authorised by Commissioner of Taxation for the purposes of subsection 61(2) of the Public Service Act 1922 ("the Act"), being of the opinion that Colin George Dunstan, Senior Information Technology Officer Grade B of the Australian Taxation Office, may have failed to fulfil his duty as an officer HEREBY CHARGE the said Colin George Dunstan with having failed to fulfil his duty as an officer within the meaning of paragraph 56(d) of the Act in that he engaged in improper conduct as an officer.

PARTICULARS OF THE CHARGE are that on 28 April 1997 he used a computer located in Information Technology Services, Australian Taxation Office, Canberra, to force a system violation in seeking to update the SYS4.USER.EXEC data set belonging to Systems Software, Communications and Access Control staff, when it was not necessary to do so for his official duties.

Charge B:

I, John Neville Higham, SES Band 1, Australian Taxation Office, National Office, Canberra, an officer authorised by the Commissioner of Taxation, for the purposes of subsection 61(2) of the Public Service Act 1922 ("the Act"), being of the opinion that Colin George Dunstan, Senior Information Technology Officer Grade B of the Australian Taxation Office, may have failed to fulfil his duty as an officer HEREBY CHARGE the said Colin George Dunstan with having failed to fulfil his duty as an officer within the meaning of paragraph 56(d) of the Act in that he engaged in improper conduct as an officer:

PARTICULARS OF THE CHARGE are that in the period 16 January 1997 to 7 May 1997 he used a computer located in Information Technology Services, Australian Taxation Office, Canberra, on numerous occasions to force a system violation in seeking access to Computer System Data Sets, when it was not necessary to do so for his official duties.

FURTHER PARTICULARS OF THE CHARGE are that he did so on the occasions, and in respect of the Computer Systems Data Sets, set out in the enclosed schedule.

Schedule to Charge B

Date	Domain	Resource
16 January 1997	TSOD	GIRM.SMIC.CNTL
3 February 1997	TSOP	GSPP.USER.EXEC
3 March 1997	TSOP	PASPD.NOMAD.EXT969.DATA
4 March 1997	TSOP	PASPP.UNLOAD.CNTL
5 March 1997	TSOD	UAOGD.SPFTEMP1.CNTL
5 March 1997	TSOD	UAUVB.SPFLOG1.LIST
6 March 1997	TSOD	GACS.SQL.SKELS
19 March 1997	TSOP	UAGGJ.USER.CNTL
2 April 1997	TSOP	PASPD.NOMAD.EXT969.DATA
2 April 1997	TSOP	PASPD.NOMAD.EXT969.DATA.PRE2000
2 April 1997	TSOD	PASPD.NOMAD.PVA
28 April 1997	TSOD	PDBAADA.DIARY
28 April 1997	TSOD	PDBADEV.DB2.EXEC
28 April 1997	TSOD	DDBADEV.DATABASE.SQL
28 April 1997	TSOD	DDBADEV.GENERAL.CNTL
28 April 1997	TSOD	ADBADEV.DML.SQL

55 At about the time he made his decision, the second respondent prepared a report setting out the inquiries he made and the reasons for his decision.

56 On 28 July 1988 the Australian Government Solicitor ("AGS") wrote to the applicant and set out the reasons for the second respondent’s decision. The second respondent adopted what was in the letter from the AGS as a correct statement of his reasons. Relevantly, the letter said:

... However, I am instructed that Mr Higham’s reasons for making his decision are as follows.

 Mr Higham verified that the attempted accesses as outlined in the charge in fact occurred by reference to staff of the Computer Security Section. Those were the attempted accesses referred to in the record of interview with you by Mr Growder, Ms Orr and Mr Molineux of 4 June 1997, and also referred to by the external consultant in his report of 12 June 1997.
 Mr Higham also verified, in an interview with the external consultant, that the attempted accesses occurred from the consultant’s own independent analysis; the potential significance of those attempted breaches; and that no other attempted breaches or actual breaches occurred.
 Mr Higham verified that you were not advised of the (then) recent internal campaign in relation to "Your Userid, Your Access, Your Responsibility" on your return to work.
 Mr Higham verified the nature of the accesses attempted by you to NOMAD (staff records) data.
 Mr Higham verified that where you were confronted by limitations to your attempted accesses, you did not approach your supervisor to raise this as an issue, not [sic] attempt through your supervisor to get your access changed in support of your work needs or for any other reason.
 Mr Higham assessed the attempted breaches and verified that they were not necessary for you to meet the requirements of your assigned work.
 Mr Higham verified the nature of your work at the time through examination of terms of reference for the work and the reports produced by you (as supplied by Mr Growder).
 Mr Higham spoke with you by telephone and wrote to you about meeting to discuss the attempted accesses. You responded in writing that you had comprehensively responded to questions by Mr Growder. Mr Higham therefore proceeded on the basis of those questions and your responses thereto.
 Mr Higham was unable to determine the motives behind the alleged attempted breaches. Mr Higham did not pursue this aspect as it was not, in his opinion, essential to the notion that misconduct may have occurred.
 Mr Higham considered that you may have attempted to breach security on the basis that the attempted accesses occurred, that a number of those, at least, were not necessary for the requirements of your work and that you, contrary to Mr Higham’s expectations, did not raise issue with the limitations to your access ability. Mr Higham believed that his conclusion was supported by the "need to know" principle, which he formulated thus:

A person has a genuine need to know if, without access, they would be hindered in the performance of their duties. Officers are not entitled to access merely because it would be convenient for them to know or by virtue of stsus [sic], rank, office or level of security clearance.

 Mr Higham believed that it could reasonably be concluded that successful breaching of security by the accesses attempted as described in the charge and with further work having been performed following those breaches then the following scenarios could result:
(1) ability to gain access to production taxpayer data;
(2) ability to gain access to sensitive ATO staff records data;

(3) ability to gain access to computer systems functions which would put at severe risk the ability of ATO core business systems to continue to function.

 Mr Higham concluded that as attempted breaches may have occurred and that the consequences of those breaches would have been extremely serious in relation to the security of taxpayer data, ATO staff records data and the ongoing viability of ATO core business systems that charges should be laid against you pursuant to paragraph 56(d) of the Public Service Act.
 Mr Higham considered counselling as an option but, in the light of the potential seriousness of the matter, decided to proceed with the charges. Mr Higham noted that if the system had not detected and inhibited the attempted accesses then there could potentially have been outcomes resulting in criminal charges being made, based on the data that could have been accessed.
 Mr Higham also took into account legal advice.

57 It seems that the applicant received full pay and entitlements between 4 June 1997 and 13 October 1997, and a partial salary of $50,000 per annum from 9 March 1998 to 11 June 1998 and $60,000 per annum from 11 June 1998 to 4 December 1998.

58 As I have said, the applicant was arrested on 4 December 1998. By letter dated 20 March 2001, the applicant was given notice that his employment was terminated.

59 With this factual background in mind I turn to a particular matter involving the applicant’s evidence and the applicant’s challenges to the evidence given by the respondents and their witnesses.

60 The applicant gave evidence that he reported a security problem to his immediate supervisor, Mr Geoff Best, in May 1997. He said that he did that on 21 May 1997 and that, as a result, he and Mr Best approached the director of computer software, Mr Greg French. Following that approach the applicant said that he was given a read access in relation to technical reference manuals for the resource access control facility.

61 The relevance of this evidence is not immediately apparent. The appellant submitted that it was relevant to "motive" in that it was unlikely (he argued) he would report a security problem if he were attempting to breach security, and it was unlikely that the ATO would give him additional access if it considered that he was a security risk. He also submitted that it showed that he asked for additional access if he needed it.

62 The evidence of the applicant with respect to this topic was not easy to follow. I have considered the evidence, and I have concluded that an accurate summary of what occurred is set out in the two documents the applicant produced at about the relevant time, namely, a discussion paper dated 8 May 1997 and entitled "Single Sign-on – Some Issues" and his response dated 18 June 1997 to the third respondent’s letter dated 16 June 1997. It seems that it was the applicant’s opinion that there were one or more security exposures into the mainframe CICS and/or DB2 environment as a result of installation steps for the Composer development tool, and that some time around 21 May 1997 he mentioned his opinion to Mr Best. I cannot accept that as a result of mentioning the matter to Mr Best the applicant was granted additional access. It seems to me that that is very unlikely in view of the other evidence in the case. Furthermore, it seems to me that it is highly likely that if he had been granted additional access the applicant would have referred to that fact in his correspondence. There is no assertion in his correspondence that he was granted additional access. My findings as to what occurred do not advance the applicant’s case because, as the second respondent said, the applicant’s experience and knowledge about the ATO’s security regime and RACF meant that he would know that it was wrong for a user to attempt to obtain access to areas of the mainframe that were not permitted by the user’s RACF profile.

63 The first respondent, as delegate of the Commissioner of Taxation, appointed Ms Holland to hold an inquiry into the charges of misconduct against the applicant. That was done under s 62(1) of the PSA on 17 October 1997. The applicant was advised by letter of Ms Holland’s appointment. In the result, Ms Holland did not hold an inquiry into the charges of misconduct against the applicant and, as I have said, Ms Holland’s evidence does not assist me in resolving the issues in this proceeding.

64 As far as the applicant’s challenges to the evidence of the third respondent are concerned, a key aspect of the applicant’s case involved the inferences which he submitted should be drawn from certain conduct by the third respondent in 1996 and 1997. I will mention each of the acts and my findings in relation to each of them. The applicant asked me to draw an inference that the third respondent’s conduct on 4 June 1997 was motivated by a desire to retaliate against the applicant because the applicant had brought legal proceedings against him.

65 First, it seems that as part of his longstanding complaints against the ATO, officers of the ATO and others, the applicant issued proceedings in this Court against a number of persons, including the third respondent and Mr Geoff Seymour in April 1997. These proceedings consisted of claims for judicial review under the ADJR Act against the Human Rights and Equal Opportunity Commission and other public authorities and civil claims, being claims for misfeasance in public office and defamation, against various Commonwealth public servants, including the third respondent and Mr Geoff Seymour (ACD 30/1997) and private criminal prosecutions against Mr Seymour (ACD 31/1997) and the third respondent (ACD 32/1997) respectively, alleging in each case, to use the applicant’s words, "acts of victimisation". The applicant asserted that the proceedings were served on the third respondent and Mr Seymour on 13 May 1997 and I did not understand that to be disputed by the respondents. I find that proceedings broadly of the nature I have described were issued and served.

66 Secondly, it seems that on 27 May 1997 the third respondent wrote to Mr Best advising him that the ATO did not support the applicant’s use of recreational leave to undertake his continuing legal actions against fellow staff members and that in the latter situation, "the ATO requires that Mr Dunstan pursue these actions while on leave without pay". I find that an electronic mail message to this effect was sent by the third respondent to Mr Best. The applicant put to the third respondent that such a direction was illegal. The third respondent did not agree with that suggestion and it is not one made out on the evidence.

67 Thirdly, the applicant submitted that there was a pattern of the ATO asking him to do unsuitable jobs and that the third respondent was part of such a scheme and he pointed to the second project, namely, the applications development environment project, assigned to him by the third respondent as an unsuitable job. I reject this suggestion. Having considered the evidence, I am satisfied that the third respondent made all reasonable and proper efforts in the circumstances, including his other duties and obligations, to reintegrate the applicant into the working environment.

68 Fourthly, the applicant submitted that it was significant that a number of events "happened" on 27 May 1997. This was in a context, he submitted, of the first respondent giving instructions to defend on behalf of the third respondent in relation to the proceedings against him. I have already referred to the electronic mail message from the third respondent to Mr Best on 27 May 1997. In addition, at about this time, the third respondent was gathering information about the applicant’s usage of the mainframe. Furthermore, the return to work report in relation to the applicant is dated 27 May 1997 although, as the third respondent pointed out, it is likely the report was being prepared over a period of time prior to that date. The fact is that it is simply not of any consequence to say that a number of events "happened" on 27 May 1997.

69 Fifthly, the applicant submitted that there were a number of inconsistencies in the third respondent’s evidence. It is not entirely clear whether the applicant submits that these "inconsistencies" are relevant to the third respondent’s motive or his credit, or both. In the result, it matters not because insofar as there were inconsistencies they may be explained on the basis that the relevant events happened many years ago. It is true that the third respondent probably first spoke to the first respondent about the applicant slightly later than he deposed to in his affidavit and that he appears to have received a memorandum in relation to the applicant well after his "briefing meeting" with the second respondent, but I do not think that there is anything sinister about these departures from his evidence-in-chief. Nor is there anything significant about the fact that in his terms of reference to Mr Pasch the third respondent referred to "attempted" access or updates whereas in his briefings to the first respondent he might have suggested that one of the violations involved actual access. Again, there is nothing remarkable about the third respondent having concerns (which developed over time) about how long the applicant was taking to complete the first project and at the same time making a general assessment that the applicant was working well.

70 Sixthly, there is a question of the security violations themselves. It is trite to say that this is an application for review under the ADJR Act and not a review of the merits of any of the decisions identified by the applicant. It is not for me to decide if the violations took place and, if so, for what reason. That said, I suppose it is necessary for me to determine if there was material upon which it might be concluded that there were violations and that there may be a reason for them which bears upon the security and integrity of the ATO mainframe system. I have no hesitation in concluding that there was material suggesting that the violations had taken place. Indeed, the applicant did not appear to suggest otherwise. Furthermore, there was material upon which it could be considered that the violations were not within the scope of the tasks the applicant was directed to carry out and that at no time had he sought additional access to the ATO mainframe. Again, I did not understand the applicant to contend otherwise, although if he did, I would reject the contention. The applicant’s submissions seemed to be that in good faith he went beyond the scope of the work he was asked to carry out, and that this should have been, and indeed was, known to the third respondent and other officers employed in the ATO. It is true that in the third respondent’s return to work report, he noted that in his BRP project paper the applicant went beyond the terms of reference, but there is no evidence that clearly explained each of the violations in terms of the scope of the work the applicant was directed to do. The evidence fell a long way short of establishing that there was no evidence or other material to support an opinion that the applicant may have failed to fulfil his duty as an officer. In fact, having regard to the third respondent’s evidence and Mr Pasch’s report, there clearly was evidence to support such an opinion.

71 Finally, the applicant referred to the fact that by 18 June 1997 the third respondent had received legal advice that given the current litigation, the investigating officer should be from outside the IT services group of the ATO. That advice relates to the task ultimately carried out by the second respondent and does not bear upon the third respondent’s actions on 4 June 1997.

72 I return then to the key allegation made by the applicant in relation to the third respondent, namely, that his actions, culminating in his action on 4 June 1997, were motivated by a desire to retaliate against the applicant in light of the legal proceedings the applicant had brought against the third respondent. I have considered the above points and all the evidence in the case and I reject that contention. I find that the third respondent’s actions were not motivated by a desire to retaliate. I find that the third respondent acted in good faith and genuinely formed the opinion that the applicant may have failed to fulfil his duties as an officer. I find that there was evidence or other material to support that opinion, and to justify the forming of that opinion.

73 As far as the applicant’s challenges to the evidence of the first respondent are concerned, a number of matters were put to her by the applicant. She was asked about her conduct in early 1998 when she was dealing with the applicant’s application for the payment of salary on hardship grounds. Nothing she said reflected adversely on her conduct in 1997, or on her credit. She was questioned about her decision to suspend the applicant from duty on 4 June 1997. What the applicant seemed to put to her was that as she acted on the third respondent’s opinion and that, as his purpose was an improper one, namely, a desire to retaliate, her purpose was an improper one. As I have found that the third respondent’s purpose was not an improper one, this submission must fail. It was also put to the first respondent that she did not remember certain matters. To a point it was established that she did not have a clear recollection of all matters, but she was a credible witness and the fact that her recollection was not perfect is unsurprising having regard to the lapse of time between the relevant events and the time at which she gave evidence.

74 The first respondent was asked if she took into account the likely or possible effects of suspension on the applicant’s mental health. She said that she was aware of the applicant’s general circumstances, but her primary concern was security to the ATO. There is no error here. The first respondent was also asked if it would have been relevant for her to know that the applicant had, to use the applicant’s words, "spoken with the director of computer security on what [he] believed would be the most effective method of overcoming that security problem". The effect of her evidence was that she did not know that "fact" and that she could only proceed on the basis of the information given at the interview. She described that information as "very little information forthcoming from you on that day". The first respondent was questioned about some matters which appeared in the typed record of interview which did not appear in the handwritten notes to the interview or appeared only in incomplete form. I am satisfied from the evidence of Mr Molineux referred to below that, subject to one matter, Mr Molineux’s typewritten record is an accurate record of the interview. The one matter is that I am satisfied from the evidence of the first respondent that she did ask the applicant if he had any comments to make after she had informed him of the course she was going to take, even though that does not appear in the typed record of interview. In any event, it does not seem to me to be a matter of any real significance.

75 As far as the applicant’s challenges to the evidence of the second respondent are concerned, the applicant focused on the fact that on his case he had reported to the Director of Computer Security that a weakness existed in the security of the ATO taxpayer data and the claim that there may be innocent explanations for the access violations.

76 The second respondent said the following in his affidavit:

I am not aware of Mr Dunstan having reported to the ATO’s Director of Computer Security that a weakness existed in the security of the ATO’s taxpayer data. If Mr Dunstan had made such a complaint, he did not ever tell me about it.

77 The applicant referred the second respondent to what he, the applicant, had said in the two documents referred to in [62] above. The second respondent said that neither the applicant nor Mr Best told him that the applicant had reported a weakness in the security of the ATO’s taxpayer data to Mr Best. None of the evidence given by the second respondent on this topic affected his credibility or supported any of the grounds upon which his decision is challenged.

78 The other matter put to the second respondent was that certain access violations could be explained by quite innocent reasons, including accident, assisting another member in the ATO and, although this is not entirely clear, the access violation being deliberately engineered by another person.

79 The second respondent did not necessarily agree with the examples being put to him but he said that in any event, his role was to establish whether there may have been improper conduct, and the officer conducting the inquiry would "go into far more detail than the process I was undertaking to establish whether inappropriate conduct may have occurred". Again, nothing the second respondent said on this topic affected his credibility or supported any of the grounds upon which his decision is challenged.

80 As far as the evidence of Mr Molineux is concerned, the following emerged from his evidence. After the applicant had been suspended, but before 30 July 1997, the ATO took legal advice from the AGS. The legal advice was dated 29 July 1997 and, generally speaking, it was to the effect that there was no basis upon which to charge the applicant with misconduct. Mr Molineux thought that the advice was wrong and he sought urgent advice from a barrister, Mr Murray McInnis. Mr McInnis’s advice is an exhibit before me. He provided his advice to Mr Molineux on 21 August 1997 and Mr McInnis’s advice was that he considered the AGS’s advice to be wrong and that:

At this stage there is sufficient prima facie evidence of misconduct and the charge should be prepared.

81 The applicant put to Mr Molineux that in light of the fact that an application to dismiss the criminal charges against the third respondent and Mr Seymour was dismissed by this Court on 15 August 1997, the above sequence of events indicates an intention by officers of the ATO to "get" the applicant. Mr Molineux denied this and I have no reason to doubt his denial. Leaving aside the question of how, in any event, such an assertion could affect the second respondent’s decision, I do not think I should draw the inference that officers in the ATO were out to "get" the applicant. Those officers were entitled to get a second opinion and that is what they did. I have no reason to think that Mr Molineux’s view that the advice from the AGS was wrong was not held in good faith. The second opinion supported the action that was taken thereafter.

82 As far as Mr Pasch is concerned there was nothing in his cross-examination which needs to be detailed.

Issues on the application

83 It is convenient at this point to set out the relevant provisions of the PSA as they were in 1997.

84 Division 6 of the PSA dealt with Discipline and s 55 in that Division was an interpretation section. The only term relevant for present purposes is "misconduct" which was defined as follows:

[misconduct] in relation to an officer, means a failure of the officer to fulfil his duty as an officer.

85 Section 56 contained a statement of when an officer shall be taken to have failed to fulfil his duty. It provided as follows:

For the purposes of this Subdivision and Subdivisions B, C and E, an officer shall be taken to have failed to fulfil his duty as an officer if and only if:

(a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply;
(b) he is inefficient or incompetent for reasons or causes within his own control;

(c) he is negligent or careless in the discharge of his duty;
(d) he engages in improper conduct as an officer;

(e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute;
(ea) the officer engages in conduct (including patronage, favouritism or discrimination) in breach of s 33;

(f) he contravenes or fails to comply with:

(i) a provision of this Act, of the regulations or of a determination in force under subsection 9(7a) or section 82D, being a provision that is applicable to him; or

(ii) the terms and conditions upon which he is employed; or
(g) he has, whether before or after becoming an officer, wilfully supplied to an officer or another person acting on behalf of the Commonwealth incorrect or misleading information in connection with his appointment to the service.

86 Subdivision C of Division 6 dealt with the disciplinary measures which may be taken against officers other than Secretaries of Departments. Section 61 provided as follows:

(2) Where an officer authorised by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorised officer shall, as soon as practicable, decide whether he should be charged and:

(a) if he decides that the officer should not be charged – may counsel the officer or cause the supervisor of the officer to counsel the officer; or
(b) if he decides that the officer should be charged – shall, by writing under his hand deliver to the officer, charge the officer with the failure.

(3) An officer charged under subsection (2) may request the relevant Secretary to furnish copies of the charge to either or both of the following, that is to say:

(a) to an organisation specified by the officer, being an organisation within the meaning of the Industrial Relations Act 1988; or
(b) to a person specified by the officer, being a person whom the officer wishes to assist him in relation to the charge;

and if the officer makes such a request, the relevant Secretary shall comply with the request.

87 Section 62 dealt with inquiries into misconduct by officers. It is sufficient to set out the following subsections :

(1) Subject to subsection (2) where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge by the relevant Secretary or an officer appointed for the purpose by the relevant Secretary.

...

(3) In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitted that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.

...

(6) Where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled by another officer, or, if he is of the opinion that other action is necessary:

[There then follows a statement of the action which may be taken and such action includes a direction that the officer be dismissed from the Service.]

88 Section 63 dealt with the suspension of an officer in certain circumstances. It provided, relevantly, as follows:

(1) Where:

(a) an officer has been charged with having committed a criminal offence; or
(b) an officer authorised for the purposes of s 61(2) has informed the relevant Secretary that he is of the opinion that an officer may have failed to fulfil his duty as an officer;

and the relevant Secretary is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the criminal charge, the taking of a decision not to charge the officer with misconduct or the hearing or determination of any charge of misconduct laid against the officer, as the case may be, the relevant Secretary may, by notice in writing delivered to the officer:

(c) direct the officer to perform temporarily other duties that he is qualified to perform whether at the same or a different locality; or

(d) suspend the officer from duty.

...

(1C) A Secretary is not authorised to suspend an officer under paragraph (1)(d) or (1A)(d) unless:

(a) the Secretary has first given the officer an opportunity to be heard; or
(b) the Secretary is of the opinion that it would not be appropriate, in the particular circumstances, to give the officer such an opportunity.

(2) Except as provided by subsections (3), (4) or (5) or by section 63C, an officer who is suspended from duty under this section is not entitled to be paid salary in respect of the period during which he is so suspended.
(3) Where an officer is, by reason of circumstances referred to in paragraph 1(b), suspended from duty under this section before a decision is made whether or not he is to be charged with misconduct, he shall be suspended with salary:

(a) in a case where an officer authorised for the purpose of subsection 61(2) decides that he should not be so charged – until that decision is made; or
(b) in any other case – until he is charged.

89 Section 63C dealt with the removal and variation of a suspension and, among other things, it empowered the relevant Secretary, on the ground of hardship, to direct that the officer be paid the whole or part of his salary for the whole or part of the period of his suspension. Section 63D conferred a right of appeal on an officer who had been the subject of a direction made under s 62(6) other than in minor cases. Section 63G provided for a procedure whereby, in certain circumstances, findings on an inquiry or an appeal could be reviewed by a body called the Merit Protection and Review Agency.

90 In this case, the applicant was suspended from his duties on 4 June 1997. As it happened, both the third respondent and the first respondent were officers authorised for the purposes of s 61(2) of the PSA and both had the delegated authority to make a decision to suspend an officer from duty. As I said earlier in these reasons, in this case the third respondent acted as the officer authorised for the purposes of s 61(2) and he informed the first respondent that he was of the opinion that the applicant may have failed to fulfil his duty as an officer. The first respondent then exercised the power under s 63B to suspend the applicant from duty. The applicant was suspended with salary and he continued to be paid his salary until he was charged on 13 October 1997. On 13 October 1997 the second respondent, who was an officer authorised by the relevant Secretary for the purposes of s 61(2) formed the opinion that the applicant may have failed to fulfil his duty as an officer and, decided that he should be charged and he charged the applicant.

91 Although Ms Holland was appointed to hold an inquiry under s 62(1) of the Act, an inquiry was never held.

92 The respondents’ submission that none of the decisions were decisions to which the ADJR Act applied requires an examination of that Act and various authorities. Section 3 of the ADJR Act provides, relevantly, that a decision to which the Act applies "means a decision of an administrative character made, proposed to be made, or required to be made" under an enactment. Subsections (2) and (3) of s 3 provide as follows:

(2) In this Act, a reference to the making of a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

93 In Australian Broadcasting Tribunal v Bond [1990] HCA 45; (1990) 170 CLR 306 ("Bond"), Mason CJ noted that there was no definition in the ADJR Act of the central term "decision". The Chief Justice (with whom Brennan and Deane JJ agreed) said (at 337):

That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination.

94 It is clear from what follows in the reasons of the Chief Justice that he used the term "substantive determination" to distinguish such a determination from a procedural determination. The Chief Justice also said that, having regard to the context, the reference in s 3(2)(g) to "doing or refusing to do any other act or thing" should be read as a reference to the exercise or refusal to exercise a substantive power.

95 In Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockhart JJ referred to the reasons of Mason CJ in Bond and said (at 68):

Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; it must have the essential quality of being substantive as distinct from a procedural determination.

The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have a real impact upon a person’s rights, privileges or obligations; some will have no such impact, while others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person’s position.

96 These are the general principles to which I was referred. Counsel for the respondents also referred to two authorities which discussed the provisions in the PSA which provisions I must consider. First, he referred to an earlier case involving the applicant, Dunstan v Farr (1999) 60 ALD 192, and a decision said to have been made on 7 July 1999 and submitted that it was authority for the proposition that a decision to suspend an officer under s 63B of the PSA was not a decision to which the ADJR Act applied. He referred to the reasons of Weinberg J and particularly what his Honour said at 199 [41]. It is true that a decision in issue in that case was a decision to suspend from duty and an invitation to make submissions as to a hardship payment. However, the focus of the case was the hardship payment of salary and the decision to suspend from duty does not appear – so far as I can tell from the report – to have been an issue. Weinberg J did not elaborate on his conclusion that the decision "plainly" lacked the characteristics of a decision which may be the subject of a review under the ADJR Act. In the circumstances, I would not treat the decision as authority for the proposition that a decision to suspend from duty under s 63B of the PSA is not a reviewable decision under the ADJR Act.

97 Secondly, counsel for the respondents referred to Buonopane v Secretary of the Department of Employment, Education and Youth Affairs (1998) 87 FCR 173 and submitted that this case was authority for the proposition that a decision to charge an officer under s 61(2) of the PSA is not subject to the rules of natural justice. The respondents referred to the remarks of Sundberg J (at 184-185):

The scheme established by the subdivision discloses that Parliament has adverted to the procedural fairness required at each stage of the disciplinary process. At the appeal stage there is to be a formal hearing. At the suspension stage the officer is to be given an opportunity to be heard unless particular circumstances exist which make it inappropriate. At the inquiry stage, a formal hearing is not required, but the officer has to be told of the misconduct the subject of the charges and given an opportunity to make a statement in relation to the misconduct. The contrast between this stage (s 62(3) and (4)) and the s 61(2) stage is eloquent. The limited right conferred on the officer under s 61 is to have a copy of the charge furnished to the person specified in subs (3). To import into s 61(2) one of the procedural steps required at the s 62 stage would be to alter the carefully crafted scheme devised by Parliament. This is not a case where Parliament is silent on procedural fairness. It has specified the stages at which fairness is required and the content of that fairness. The intention is manifest that at the earliest stage the officer is not to have the opportunity to make representations as to why charges should not be made against him. ...

I will return to the question whether the Court should supplement the statutory scheme after considering the complaint that the applicant had not been afforded procedural fairness at the inquiry stage.

98 His Honour later concluded that it would not be appropriate to supplement the statutory scheme (at 186).

99 In my respectful opinion, his Honour’s conclusions are correct and should be followed.

100 In my opinion, the first decision identified by the applicant was not a decision to which the ADJR Act applied. The third respondent formed an opinion that the applicant may have failed to fulfil his duty as an officer and conveyed that opinion to the first respondent. That is not the making of a decision within s 3(2) or (3) of the ADJR Act. Nor is it a decision as that concept has been explained in the authorities. It is not final or operative and determinative. It is a matter the relevant Secretary or his delegate takes into account in deciding whether to take one or other of the courses of action referred to in s 63B(c) or (d).

101 In my opinion, although the matter is not entirely clear, the second decision identified by the applicant was a decision to which the ADJR Act applied. Suspension has an immediate impact in that an officer is precluded from performing his ordinary duties. Parliament has seen fit to confer an opportunity to be heard, albeit, one capable of being defeated in certain circumstances, before a decision to suspend is made. Furthermore, in the case of an officer who has been charged previously with misconduct, suspension operates to bring the payment of the officer’s salary to an end. All these considerations suggest an act in relation to a substantive matter and one which is final or operative and determinative and therefore a decision. It is true that s 63B also applied where an officer is first suspended and later charged (in fact that was the case here) and that in such a case, it is the act of charging that brings the payment of the officer’s salary to an end. In that case it might be said that both the act of suspension and charging are decisions or at least the act of charging is a decision. I incline to the view that whatever the sequence of events, as a matter of substance the act of suspension is a decision within the ADJR Act and the act of charging is not. The act of charging involves no final conclusions of fact and an inquiry at which the officer concerned has a right to be heard as defined in s 62(3), must be held without undue delay. However, I do not need to decide the point because even treating both the act of suspension and the act of charging as decisions there is simply no ground upon which to impugn either decision.

The first decision

102 In order to deal with all the issues canvassed before me I will assume (contrary to my earlier conclusion) that the third respondent’s forming of an opinion and the conveying of that opinion to the first respondent was a decision to which the ADJR Act applied.

103 The first ground of challenge to the first decision is that there was a breach of the rules of natural justice in that the applicant was not given notice of the allegations against him, he was not given a reasonable opportunity to respond to them, he was not given an opportunity to be represented at the meeting held on 4 June 1997 and he was not given prior warning that his use of the ATO computer facility was, or may be, inappropriate. It is also alleged that the third respondent should have disqualified himself.

104 In my opinion, the answer to this ground of challenge is that the rules of natural justice did not apply to the first decision. They did apply to the second decision to the extent provided by s 63(1C) of the PSA. In my opinion, Parliament has made clear the extent to which the rules of natural justice apply to the decision to suspend. The first decision is no more than one element or aspect of that decision. For reasons I will give, the challenge to the second decision on the ground of a breach of the rules of natural justice fails. I reject the submission that the third respondent was bound to disqualify himself because of the legal proceedings issued against him.

105 The second ground of challenge to the first decision is that it involved an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The particulars of this ground of challenge are that (so it was said by the applicant) the third respondent took into account irrelevant considerations, namely, that the applicant had commenced criminal and civil proceedings against him, that he wished to remove the applicant from his place of employment and that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him. This ground of challenge fails. For reasons I have already given, I am not satisfied that the fact that the applicant had commenced criminal and civil proceedings against the third respondent played any part in the opinion formed by the third respondent under s 63B of the PSA. I am not satisfied on the evidence that the third respondent wished to remove the applicant from his place of employment or that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him.

106 The third ground of challenge to the first decision is that there was no evidence or other material to justify the making of the decision. The particulars of this ground are as follows:

A. The evidence relied upon by the third respondent was such that he could not have been reasonably satisfied that the applicant may have failed to fulfil his duty as an officer –

(i) the applicant's use of the ATO computer facilities was at all times consistent with the manner in which the applicant had been performing his duty since he commenced work with the ATO in 1987 and was in accordance with the requirements of his duties. That use was also consistent with the manner in which other officers of the Service working in the ATO performed their duties.

107 The relevant ground is s 5(1)(h) of the ADJR Act and it provides a ground of review that:

there was no evidence or other material to justify the making of the decision.

Section 5(3) of the ADJR Act provides as follows:

The ground specified in paragraph 1(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

108 The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 ("Rajamanikkam"); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 ("SGFB") at [17]-[21] per von Doussa, O’Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1; (2002) 211 CLR 441 at 458 [35]- [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam, the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.

109 Sitting as a single Judge of the Court, I think the issue I have identified has, as far as the relationship between s 5(1)(h) and s 5(3)(b) is concerned, been resolved by the Full Court of this Court in SGFB. A party seeking to make out the ground in s 5(1)(h) by establishing that the decision-maker based his decision on the existence of a particular fact and that fact did not exist must also establish that there was no evidence or other material to justify the making of the decision.

110 The allegations in this case suggest that the applicant seeks to make out the ground in s 5(1)(h) by reference to s 5(3)(a). The question whether he does so only if he establishes the matter in s 5(3)(a) and that there was no evidence or other material to justify the making of the decision or whether he does so simply by establishing the matter in s 5(3)(a) has not been authoritatively determined. I did not have the benefit of submissions on the point and, indeed, the applicant was not legally represented. I do not need to resolve the difficult question raised because even on the assumption most favourable to the applicant, that is to say, that all he need do is establish the matter in s 5(3)(a), the ground in s 5(1)(h) is not made out.

111 One of the matters which must be satisfied in order to make out the ground in s 5(3)(a) is that the particular matter was one the decision-maker was required by law to find established before reaching the decision in question. In considering that matter, it may be noted that there is some artificiality in the assumption upon which I am proceeding, namely, that the act of the third respondent in forming the opinion that the applicant may have failed to fulfil his duty as an officer and informing the first respondent of that opinion is a decision to which the ADJR Act applies. However, proceeding on that assumption, it might be said that the particular matter the third respondent was required by law to find established before reaching his decision was that the applicant may have failed to fulfil his duty as an officer. If that is so, it cannot be said that there was no evidence or other material from which the third respondent could reasonably be satisfied of that matter. There was ample evidence upon which the third respondent could form the opinion that the applicant may have failed to fulfil his duty as an officer.

112 The alternative is that the applicant contends that the particulars are "particular matters" within s 5(3). The particulars are expressed in positive terms and I think to make sense of the allegation it is necessary to construe the particulars as in effect allegations that there was no evidence or other material from which the third respondent could reasonably be satisfied that the applicant’s use of the ATO computer facilities was inconsistent with the manner in which he had been performing his duties since he commenced work with the ATO and not in accordance with the requirements of his duties and inconsistent with the manner in which other officers of the Service working in the ATO performed their duties. The immediate difficulty with this submission is that these are not particular matters required by law to be established before the third respondent formed his opinion and conveyed that opinion to the first respondent. Alternatively, for reasons I have already given, it cannot be said that there is no evidence or other material from which the third respondent could reasonably be satisfied that these matters were established. There was ample evidence that the applicant’s computer usage was outside the scope of his duties and inconsistent with computer usage by other employees within the ATO.

113 The applicant has failed to establish the matters in s 5(3)(a).

114 Because the applicant was unrepresented, I have considered whether he might have been able to bring his particulars within s 5(3)(b). I have concluded that he could not. The applicant has failed to show the non-existence of any fact relied upon by the third respondent, let alone any "particular fact". Moreover, there was evidence justifying the decision of the third respondent and, as I have already said, showing that there was no evidence is an additional hurdle to review under s 5(1)(h): SGFB.

The second decision

115 The first ground of challenge to the second decision is that there was a breach of the rules of natural justice. Putting to one side the allegation in relation to the first decision that the third respondent should have disqualified himself, the particulars of breach are in similar terms to the particulars of breach given in relation to the first decision. The first respondent considered whether the applicant should be given notice of the matters of concern before the meeting on 4 June 1997 and decided that because of security concerns he should not be given such notice. On the evidence before me that was a conclusion which was reasonably open to her. The applicant was given notice of the matters of concern at the meeting on 4 June 1997 and to that extent he was given the opportunity to respond. If an opportunity to be heard within s 63B(1C) is satisfied by the notice he was given at the meeting, then the obligation in the subsection was satisfied. To the extent that it was not satisfied by that action, the subsection was nevertheless satisfied because in that event the case fell within s 63B(1C)(b).

116 The second ground of challenge in relation to the second decision is that s 63B(1C) (incorrectly referred to in the statement of claim as s 63B(1A)) was not complied with. This ground of challenge fails for the reasons given in relation to the first ground of challenge.

117 The third ground of challenge to the second decision is that the first respondent improperly exercised the power in s 63B(1) in that she exercised the power at the direction or behest of the third respondent (s 5(2)(e)) of the ADJR Act). Section 63B(1) provides for an officer authorised for the purposes of subsection 61(2) to inform a person in the position of the first respondent that he is of the opinion that an officer may have failed to fulfil his duty as an officer. That was what occurred here and there is no evidence to suggest that the first respondent did not consider the matters she was required to consider under the section. I find that she did and, in those circumstances, the third ground of challenge fails.

118 All grounds of challenge to the second decision fail.

The third decision

119 The first ground of challenge to the third decision is that a breach of the rules of natural justice occurred in connection with the making of the decision. For the reasons I have already given, ([97]-[99] above) the rules of natural justice did not apply in relation to the third decision. If the rules of natural justice did apply in relation to the third decision, nevertheless, there was no breach of those rules. The applicant first alleges that there was unreasonable delay in making the decision. It is convenient to consider this particular with the second ground of challenge which is that the procedures that were required by law to be observed in connection with the making of the decision were not observed in that the decision was not made "as soon as practicable" as required by s 61(2) of PSA.

120 As I have already said (at [55]), at about the time the second respondent made his decision to charge the applicant and in fact charged him, he prepared a report which set out the course of events and details of his decision. It is in similar terms to the statement of his reasons set out in the letter from the AGS dated 28 July 1998 (see [56] above). There was a draft of the report as early as 11 July 1997, and other than the date and the second respondent’s name, the draft report and the report are in the same terms. The applicant submitted that in those circumstances the second respondent had been guilty of unreasonable delay and had failed to decide to charge, or to charge, or both, "as soon as practicable" after forming the opinion required by s 61(2).

121 The second respondent gave evidence, which I accept, that he was very busy in July and August 1997 and that he was required to travel overseas in order to carry out a research project. He was overseas from late August to late September 1997.

122 On the facts, I do not think there has been unreasonable delay in making a decision. Nor is the related submission that the decision was not made as soon as practicable as required by s 61(2) of the PSA made out. It has not been established on the evidence that the second respondent formed his opinion at one point in time and decided to charge and did charge the applicant at a different and later point in time. Even if that fact had been established, I am not satisfied that the decision to charge and in fact the charging of the applicant were not done "as soon as practicable" after the relevant opinion was formed. I might add that even if I had found that the second respondent had not made the decision "as soon as practicable" after he formed the opinion required by s 61(2), it would not necessarily follow, in circumstances in which the second respondent did go on to make a decision, that that constituted a reviewable ground within s 5(1) of the ADJR Act. I doubt whether it could be said that the ground that the procedures required by law to be observed in connection with the making of the decision were not observed (that is, s 5(1)(b)) was engaged, and, even if it were, that it would be an appropriate case for an order under s 16(1)(a) quashing the decision to charge. It seems to me that in a case where a decision is not made "as soon as practicable" within s 61(2) there is a good deal to be said for the proposition that the only remedy for an aggrieved party is an order for review in respect of a failure to make a decision under s 7 of the ADJR Act.

123 As part of his first ground of challenge the applicant alleges that he was denied any proper opportunity to defend himself. This particular may be considered in conjunction with the third particular, namely, that before 4 June 1997 the applicant was never advised that his manner of use of the ATO computer facility was or could be improper and, in particular, he was never advised in relation to the internal campaign in relation to "Your USERID, Your access, Your responsibility" or the ATO’s computer security policy changes implemented while he was on sick leave and prior to December 1996. I reject these contentions. It seems to me, that it was open to the second respondent to conclude from the applicant’s correspondence that the applicant had already put forward all of the information that he wished the second respondent to consider and that he did not wish to meet with the second respondent and, indeed, he did not think that there was any legitimate reason for him to speak to the applicant.

124 I have already dealt with the second ground of challenge to the third decision.

125 The third and fourth grounds of challenge to the third decision are related because the particulars are substantially the same in each case. The third ground of challenge is that the second respondent’s decision involved an improper exercise of the power in s 61(2) in that the second respondent took irrelevant considerations into account in exercising the power and failed to take relevant considerations into account. Five particulars are alleged (Paragraphs A-E) one of which identifies a relevant consideration not taken into account and four of which identify four irrelevant considerations taken into account.

126 The fourth ground of challenge is that there was no evidence or other material to justify the making of the decision that "he could reasonably be satisfied that the applicant may have failed to fulfil his duty as an officer within the meaning of s 56(d) of the Act such as to justify charging him with misconduct within the meaning of sections 55 and 56 of the Act". Seven particulars are given, the first five of which are identical to the five particulars given in relation to the third ground of challenge. It is convenient at this point to deal with the sixth and seventh particulars in relation to the fourth ground of challenge and then return to the five particulars common to both grounds of challenge.

127 The sixth particular, paragraph F, is that the second respondent’s decision was unreasonable because the applicant’s use of the ATO computer facilities during the period December 1996 to April 1997 was not qualitatively different from the use made of those computer facilities by other ATO officers during that period. I do not need to consider whether this is an attempt to plead the ground identified in s 5(1)(e) and (2)(g) of the ADJR Act, or whether if the asserted fact were established that would be sufficient to make out the ground because the asserted fact has not been established. The second respondent relied on information provided to him by the third respondent who in turn had a report from Mr Littlejohn, which supported the conclusion that "apart from password errors (which were relatively common) there were very few systems violations by other people of the type recorded by Mr Dunstan", to use the third respondent’s statement to the second respondent. Mr Littlejohn gave the second respondent information to the same effect. The opinions of Mr Pasch, set out in his report, also support this conclusion.

128 The seventh particular, paragraph G is that there was no evidence that the applicant had improperly accessed and/or improperly attempted to access prohibited data. It is not necessary for me to consider whether this is an attempt to plead the ground in s 5(1)(h) or s 5(1)(f) of the ADJR Act. The particular implies a task which was not the task the second respondent was required to undertake. He was required to determine whether the applicant may have failed to fulfil his duty as an officer and, if so, whether he should be charged. There was ample evidence before the second respondent that attempted breaches may have occurred and that the consequences of those breaches would or may be extremely serious.

129 Particular A of the third and fourth grounds of challenge is that the second respondent failed to take into account four matters. First, it is alleged he failed to take into account "the full requirements of the applicant’s duties". It was certainly relevant for the second respondent to take into account the nature of the applicant’s duties and, in my opinion, he clearly did that. The applicant did not identify the duties he alleges he was required to carry out which were not taken into account by the second respondent and even if the applicant went beyond his duties the evidence went nowhere near establishing that this would explain all of the system violations. Secondly, it is alleged that the second respondent failed to take into account the fact that the applicant reported to the ATO’s Director of Computer Security that a serious weakness existed in the security of ATO taxpayer data. I refer to my findings in [62] above. I do not think it is a relevant consideration or, if it is, in my opinion it is "so insignificant that the failure to take it into account could not have materially affected the decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 46 per Mason J (as he then was). Furthermore, the second respondent said in his reasons that he could not make a finding as to the applicant’s motive. Thirdly, it is alleged that the second respondent failed to take into account the fact that at no time did the applicant breach ATO security. The second respondent took into account the fact that the system violations were attempted breaches of security. Having regard to the decision he was required to make, he was not required to go any further. Fourthly, it is alleged that the second respondent failed to take into account that the applicant’s use of the ATO computer facilities during the period December 1996 to April 1997 was not qualitatively different from the use made of those computer facilities by other ATO officers during that period. As I said earlier, the asserted fact was not established and, indeed, the contrary was established.

130 Particulars B, C and D can be dealt with together. Particular B is an allegation that the second respondent improperly took into account the assertion that taxpayer data could have been improperly accessed if the applicant succeeded in accessing the computer facilities when the computer facilities accessed did not contain any taxpayer data. This seems to me to contain two allegations: first, that there was an error of fact and the computer facilities to which access was attempted did not contain taxpayer data and, secondly, assuming that fact it would be irrelevant. Particular C is an allegation that the second respondent improperly took into account that "with further work" the applicant could have gained the ability to gain access to production taxpayer data, sensitive ATO staff record data and access to computer systems which would put at risk the ability of ATO core business systems to continue to function. Particular D is an allegation that the second respondent improperly took into account the assertion that the applicant was seeking to access production taxpayer data or sensitive ATO staff record data without verifying the assertion. I have already referred to the second respondent’s reasons (at [56] above). There was ample evidence in support of the second respondent’s conclusions and they were proper matters for him to take into account.

131 Particular E is an allegation that the second respondent improperly took into account the assertion that the applicant had comprehensively responded to the allegations put to the applicant by the third respondent and the assertion that the applicant did not wish to discuss the matter with him when the applicant had in fact requested that a meeting be arranged. As I read the second respondent’s reasons he did not take this into account as a consideration and it is no more than a statement of what had happened. Insofar as it is an allegation of a breach of the rules of natural justice, I reject it for the reasons previously given.

132 All grounds of challenge to the third decision fail.

The Seymour memorandum

133 At the start of the trial the applicant sought to tender a five-page memorandum from Mr G A Seymour to Second Commissioner Highfield. That memorandum is dated 30 July 1997 and in it there is a discussion of the applicant’s employment and a reference to, among other things, legal advice the second respondent had received from the AGS.

134 The respondents claimed legal professional privilege over those parts of the memorandum which referred to legal advice received from the AGS. They had no objection to the applicant having an edited copy of the memorandum, that is to say, a copy which did not contain reference to the legal advice.

135 The respondents had claimed legal professional privilege over the unedited copy of the memorandum in its list of documents. However an unedited copy of the memorandum came into the possession of the applicant. That came about in the following way. On an interlocutory application in the proceedings the respondents filed written submissions dealing with the application. They attached to those submissions, by mistake, an unedited copy of the memorandum. I accept the evidence of the respondents’ solicitor that the unedited copy of the memorandum was attached to the submissions inadvertently, and that what should have been attached to the submissions was an edited copy of the memorandum.

136 The applicant did not dispute the initial claim for legal professional privilege. However, his submission was that privilege had been waived when an unedited copy of the memorandum was sent to him. I ruled that legal professional privilege had not been waived. I delivered my ruling at an early stage of the trial and I said at the time of my ruling that whether the memorandum may become admissible on other grounds was a matter for the parties to consider and that I rejected the application to tender at that stage.

137 These are my reasons for that ruling.

138 The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act. Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents’ solicitors.

139 Since the applicant did not dispute the claim for privilege and relied only upon waiver, I was able to proceed upon the assumption that client legal privilege under the Evidence Act was established, under either s 118 or s 119.

140 Sections 121-126 provide for circumstances where client legal privilege is lost. For obvious reasons, none of s 123 (which applies in a criminal proceeding), s 124 (which applies where one of a number of joint clients seeks to adduce evidence) or s 125 (which applies to documents created in the furtherance of the commission of specified wrongful acts) applies. The only document in issue in this case is the Seymour memorandum, so s 126 (which provides for related communications and documents) is not presently relevant.

141 Section 121 provides three ways in which client legal privilege does not prevent the adducing of evidence. Clearly, neither subsection (1) (which applies where the client or party has died) nor subsection (2) (which applies where the court would be prevented from enforcing an order of an Australian court were the evidence not adduced) apply. Subsection (3) provides:

(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

The subsection has been interpreted narrowly and requires that the communication affect a right directly, and not merely be relevant to a right or be evidence of a right otherwise created or affected. In Talbot v NRMA Ltd [2000] NSWSC 602, Hodgson CJ in Eq observed (at [3]):

[the words] cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person.

I respectfully agree and in my opinion it was clear that the subsection had no application to the present case.

142 Section 122, which deals with loss of client legal privilege by consent, required close examination on the facts of the present case. The section provides:

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:

(a) in the course of making a confidential communication or preparing a confidential document; or
(b) as a result of duress or deception; or

(c) under compulsion of law; or

(d) if the client or party is a body established by, or a person holding office under, an Australian law – to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:
(a) a lawyer acting for the client or party; or

(b) if the client or party is a body established by, or a person holding office under, an Australian law – to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to:

(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(b) a disclosure to a person with whom the client or party had, at the time of disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers).

143 Since the applicant based his submission that privilege had been waived upon the disclosure of an unedited copy of the memorandum, it is convenient to begin with subsections (2) and (4), which deal expressly with disclosure. It will be necessary subsequently to consider what, if any, application subsection (1) may have to the present case. Before turning to those operative provisions, however, I observe that the exceptions to the operation of those provisions provided in subsections (3) and (5) were not enlivened by the facts of this case. Subsection (3) relieves the effect of subsection (2) where the disclosure is made by an agent, unless the agent was authorised to make the disclosure. The disclosure in the present case was made by the respondents’ solicitors, who are agents of the client. There was no suggestion that the disclosure was unauthorised, but in any event I am satisfied that the waiver of a client’s privilege over documents lies within the ostensible authority of the client’s solicitor and that ostensible authority is sufficient for the purposes of the proviso in subsection (3). That view is supported in the authorities: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403 per Goldberg J; Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 ("Sovereign") at [24] per Austin J. Therefore, subsection (3) does not operate in this case. Subsection (5), which deals with disclosures between persons with common legal representation or a common interest in a proceeding, is plainly inapplicable.

144 It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client’s solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1) so the Full Court’s decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7^th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6^th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521, Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection.

145 For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents’ list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign, Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents’ solicitors’ letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served.

146 For the purposes of subsection (4), the applicant must establish that the substance of the evidence has been disclosed with the express or implied consent of the client to another person (with two exceptions, neither presently relevant). Again, no issue regarding "the substance of the evidence" arises and the point turned upon whether there was express or implied consent. Where, as is the case here, the disclosure was made by the client (within the statutory definition, which encompasses agents and hence solicitors: s 117) and not by a third party, it follows from my finding that the disclosure was not voluntary, that the disclosure was not made with express or implied consent. The factors relevant to a determination of whether the solicitors (who, it is to be recalled, had ostensible authority to waive the privilege) consented to the disclosure include the conduct and intentions of the solicitors: Sovereign at [27] per Austin J. As I have said, I accept, based on the evidence before me, that the disclosure was entirely inadvertent and, in such circumstances, it cannot be said that the disclosure was consensual, expressly or impliedly.

147 Waiver of privilege at common law, which is brought about by "the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality" (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ) is described as an "imputed waiver" because it does not depend upon the subjective intentions of the client. Subsection (4) is not satisfied by imputed consent of this species: Sovereign at [28] per Austin J. It is not necessary for the purpose of subsection (4) to consider the common law test and I conclude that subsection (4) is not made out. The common law test is, however, relevant to a consideration of subsection (1) to which I now turn.

148 Subsection (1) provides for the loss of client legal privilege where the evidence adduced is "given with the consent of the client or party concerned". The Full Court of this Court has held that consent in this context is not limited to express consent but reaches cases where the client is deemed to have consented to the disclosure of otherwise privileged material: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 168 per Branson and Lehane JJ. But this decision was limited to cases where the waiver is based upon conduct other than disclosure. Their Honours said (at 168):

Of course, as [Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360] demonstrates, the position may be different where the conduct relied upon is some disclosure of legal advice, but that need not be further considered here.

As a matter of statutory construction, because subsections (2) and (4) deal specifically with waiver by disclosure, it is unlikely that the legislature intended subsection (1) to provide some wider basis for finding there to have been waiver by disclosure. In my view, subsection (1) applies where consent is given to the adducing of evidence in court (rather than disclosure out of court) or where a client engages in conduct inconsistent with the maintenance of the privilege, such as where the substance of legal advice received is relied upon in order to raise an issue in the proceeding. Insofar as the applicant’s submission on the waiver of privilege relies upon the inadvertent disclosure of the memorandum in the respondents’ written submissions, subsection (1) is of no assistance.

149 Subsection (1), in the applicable sense described above, may have been raised by the applicant in another way and I considered whether privilege may have been waived by some reason other than the disclosure. In particular, in the letter from the AGS dated 28 July 1998 to the applicant the second respondent’s reasons are set out and it is said that the second respondent "also took into account the advice". I considered whether the maintenance of legal professional privilege was inconsistent with that assertion and, as such, whether consent to the adducing of the evidence could be imputed and the privilege lost by operation of subsection (1). I was not prepared to conclude that the assertion and maintenance of the privilege were inconsistent because there was nothing before me to indicate that the legal advice said to have been taken into account by the second respondent was the legal advice received from the AGS.

150 It remains only briefly to observe that the common law relating to legal professional privilege, and its reliance to some extent upon notions of fairness, may be relevant to my discretion to exclude evidence under s 135 of the Evidence Act. But this would arise only if I had concluded that privilege was lost under s 122 and the respondent made an application to exclude the evidence for reasons of fairness, notwithstanding its unprivileged status.

151 Legal professional privilege or client legal privilege over the unedited version of the Seymour memorandum has not been lost. I might add that by the end of the trial I had a good deal of evidence of the legal advice provided by the AGS in July 1997. That evidence came from other sources and is referred to in my discussion of Mr Molineux’s evidence ([80], [81] above).

Conclusion

152 For these reasons, the application is dismissed. I will hear the parties as to costs.

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 25 January 2008

The Applicant appeared in person.

Counsel for the Respondents:	Mr G Stretton

Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	2, 3, 4 July and 25, 26 July 2007

Date of Judgment:	25 January 2008

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