Warrington v Merit Protection Commissioner [2010] FCA 37 (3 February 2010)

Last Updated: 9 February 2010

FEDERAL COURT OF AUSTRALIA

Warrington v Merit Protection Commissioner [2010] FCA 37

Citation:		Warrington v Merit Protection Commissioner [2010] FCA 37
Parties:		JOHN WARRINGTON v MERIT PROTECTION COMMISSIONER and COMMISSIONER OF TAXATION
File number:		NSD 1361 of 2009
Judge:		FOSTER J
Date of judgment:		3 February 2010
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) Evidence Act 1995 (Cth) s 69 Public Service Regulations 1999 (Cth) Reg 5.29
Date of hearing:	3 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	NO CATCHWORDS
Number of paragraphs:	10
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms L Buchanan of Australian Government Solicitor
Solicitor for the Second Respondent:	Ms J Pownall of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1361 of 2009

BETWEEN:

JOHN WARRINGTON Applicant

AND:	MERIT PROTECTION COMMISSIONER First Respondent COMMISSIONER OF TAXATION Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	3 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT:

1. DIRECTS the second respondent, the Commissioner of Taxation, to file and serve by 16 February 2010 any evidence upon which he intends to rely in answer to the evidence relied upon by the applicant in support of his application for an extension of time within which to file his Application.
2. DIRECTS the applicant to file any evidence in reply by 23 February 2010.
3. DISPENSES with the need for the applicant to file any formal application in which he seeks an order for an extension of time within which to file his Application, and dispenses with any need for any further notification of that matter to the respondent parties.
4. FIXES the hearing of the applicant’s application for an extension of time within which to file his Application at 9.15 am on 26 February 2010.
5. RESERVES the question of costs to date.
6. LISTS the matter for directions at 9.15 am on 26 February 2010, in the event that the applicant’s application for an extension of time is successful.
7. GRANTS liberty to the parties to apply on three days’ notice.
8. EXCUSES the Merit Protection Commissioner from further attendance.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1361 of 2009

BETWEEN:

JOHN WARRINGTON Applicant

AND:	MERIT PROTECTION COMMISSIONER First Respondent COMMISSIONER OF TAXATION Second Respondent

JUDGE:	FOSTER J
DATE:	3 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, at all relevant times, was an employee of the Australian Taxation Office (the ATO). He was, however, dismissed last week. He has had various disputes with those who run that office and the present proceeding is an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), of a decision of the Merit Protection Commissioner dated 4 June 2009 made pursuant to Reg 5.29 of the Public Service Regulations 1999 (Cth). By that decision, the Merit Protection Commissioner recommended that the actions of the ATO which were being reviewed by the Merit Protection Commissioner be confirmed. Broadly speaking, those actions concerned the ATO’s responses to the applicant’s claim for workers’ compensation originally made in November 2007 and the ATO’s responses to various complaints made by the applicant about his treatment at the hands of certain medical practitioners.
2. Today is the first directions hearing in the matter.
3. When the proceeding was commenced, the sole respondent named in the proceeding was the Merit Protection Commissioner. The Commissioner had filed a submitting appearance on 2 December 2009 and informed me today that he wished to be excused from further participation in the proceeding.
4. The Commissioner of Taxation was also represented this morning and sought leave to appear this morning for the purpose of obtaining an order that he be joined as an additional respondent party to the proceeding and for the purpose of making submissions in respect of the question of whether or not the applicant should be granted an extension of time within which to file his Application. I have made the order for joinder.
5. When the matter was called on today, the applicant informed me that he wished to have his Application dealt with on a final basis today. In exploring with the other parties represented at the bar table the possibility of doing that, I was informed that there were serious objections to the applicant’s proceeding, the first of which was that the proceeding was filed outside the time limited by the Federal Court Rules. The applicant accepts that he filed his Application out of time and that he must seek an extension of time within which to file that Application.
6. I then embarked upon an exchange with the applicant and the legal representative for the Commissioner of Taxation on the question of whether the applicant should have an extension of time within which to lodge his Application. In the course of the discussion, I was informed by the legal representative for the Commissioner of Taxation that, in her submission, the applicant’s Application must inevitably fail because the decision which he seeks to have reviewed was now no longer an operative decision and had been overtaken by subsequent decisions made by an Assistant Commissioner of Taxation, Ms Cox, in early September 2009.
7. In support of that proposition, the legal representative for the Commissioner of Taxation sought to tender an electronic copy of a letter dated 2 September 2009, said to have been sent by Ms Cox to the applicant. That letter is in the following terms (omitting formal parts):

RE: Secondary review under Public Service Regulations
I am writing to you on behalf of the Tax Office about your application for review of certain actions relating to your Tax Office employment that [sic] lodged with Merit Protection Commission.
On 4 June 2009, the Merit Protection Commission advised that:

‘Having considered the matter, for the reasons set out in the attached report and acting under Public Service Regulation 5.31, I recommend that the actions under review be confirmed under Public Service Regulation 5.32’.

Furthermore, on 19 July 2009, the Merit Protection Commissioner advised that:

‘In the circumstances therefore, it is my view that the recommendation in Mr Ramsey’s report should proceed’.

The Merit Protection Commissioner further advised that they have provided you a copy of their decision.
As a consequence, I confirm the Tax Office’s original decision and advise that no further action will be undertaken by this office regarding the matter raised in your application.

8. When that letter was sought to be tendered, the applicant objected to its tender on the basis that he had not received it. I then considered whether I would admit the letter pursuant to s 69 of the Evidence Act 1995 (Cth), that is to say, as a business record. It seemed to me that the critical evidence sought to be proven by the letter was not so much whether the applicant had received the letter but rather whether the decisions recorded in the letter had, in fact, been made by Assistant Commissioner Cox on or about 2 September 2009. In light of the applicant’s objection, I was not prepared to admit the letter as a business record at this stage. However, it does seem to me that the applicant needs to address the point made against him that the decision in respect of which he currently seeks review is not an operative decision but has been overtaken by subsequent decisions apparently made by Assistant Commissioner Cox.
9. As events have unfolded, it has become necessary to adjourn to another day further consideration of the applicant’s application for an extension of time within which to file his Application. The applicant swore an affidavit on 27 November 2009 in which he appears to have attempted to explain the reasons for his delay in filing his Application. The Commissioner of Taxation wishes to have an opportunity to address the relevant factual matters raised by that affidavit and also wishes to have an opportunity to prove in such manner as he may be advised the decisions apparently made by Assistant Commissioner Cox to which I have referred.
10. Accordingly, I make the following directions:

(1) I direct the second respondent, the Commissioner of Taxation, to file and serve by 16 February 2010 any evidence upon which he intends to rely in answer to the evidence relied upon by the applicant in support of his application for an extension of time within which to file his Application.

(2) I direct the applicant to file any evidence in reply by 23 February 2010.

(3) I dispense with the need for the applicant to file any formal application in which he seeks an order for an extension of time within which to file his Application, and I dispense with any need for any further notification of that matter to the respondent parties.

(4) I fix the hearing of the applicant’s application for an extension of time within which to file his Application at 9.15 am on 26 February 2010.

(5) I reserve the question of costs to date.

(6) I also list the matter for directions at 9.15 am on 26 February 2010, in the event that the applicant’s application for an extension of time is successful.

(7) I grant liberty to the parties to apply on three days’ notice.

(8) I excuse the Merit Protection Commissioner from further attendance.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 4 February 2010