Bird v Free

Mr Roderick made application to this Court to have the decision of the Review Tribunal reviewed pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). That application was action SG 21 of 1991 and came on for hearing before me. On 11 July 1991 an objection to competency by Telecom was dismissed: Roderick v Australian Telecommunications Commission (1991) 40 IR 217; 24 ALD 694. On 3 February 1992 the application for an order for review was also dismissed: Roderick v Australian Telecommunications Corporation (No.2) (1991) 27 ALD 192. It was held that the letter of 16 February 1990 did not constitute confirmation of the probationary appointment, and that there had been no breach of the rules of natural justice in the way in which the Review Tribunal conducted its hearing. Mr Roderick appealed from that decision to the Full Court: action SG 10 of 1992. On 4 December 1992 the Full Court allowed the appeal and set aside the order made at trial on 3 February 1992. The judgment of the Full Court is reported: Roderick v Australian & Overseas Telecommunications Corporation Limited (1992) 111 ALR 355. The principal judgment of the Court was delivered by Hill J with whom the other members of the Court agreed. His Honour, at 360, expressed his agreement with the conclusion that the letter of 16 February 1990 did not constitute confirmation of the probationary appointment, and the argument to the contrary addressed to the Full Court by Mr Roderick failed. However the Full Court went on to hold that there had been a denial of natural justice in the procedure adopted by the Review Tribunal. The formal orders of the Full Court were as follows:

1. The appeal be allowed and the order made by von Doussa J. be set aside.
2. The decision of the Review Tribunal be set aside.
3. The matter be remitted to a differently constituted Review Tribunal to be determined in accordance with law.
4. The respondents to pay the costs of the proceedings before von Doussa J.
5. There be no order as to the costs of the appeal. The Promotions Appeal Board, being the then relevant authority to conduct the remitted application for review, constituted a Board which conducted a further hearing. On 1 September 1993 the decision of Telecom made on 21 February 1991 to terminate the employment of Mr Roderick effective from 22 February 1991 was confirmed. No application has been made under the ADJR Act to review the Promotion Appeal Board's decision of 1 September 1993. Mr Roderick says that he was nevertheless dissatisfied with that decision, and maintained his stance that his employment had been confirmed by the letter of 16 February 1990, and that he had in consequence been wrongfully dismissed. In the meantime, on 28 May 1993 a delegate of Telecom had reviewed a determination made on 4 September 1992 in respect of a claim for worker's compensation lodged by Mr Roderick against Telecom. The delegate determined that Mr Roderick was not entitled to compensation. Mr Roderick applied on 1 September 1993 to the Administrative Appeals Tribunal to have the delegate's decision reviewed. Mr Roderick informs me from the bar table that he sought to agitate in those proceedings the grievance about his dismissal and to seek redress for wrongful dismissal. On 10 June 1994 the tribunal varied the decision of the delegate and substituted the following decision:
6. The applicant suffered an injury, namely symptoms of an Anxiety Disorder;
7. The applicant was incapacitated on 18, 19, 20 and 21 February 1991 as a result of that injury;
8. The matter is to be referred to the respondent for action, if appropriate, in accordance with paragraph 60 of this decision. Paragraph 60 expressed uncertainty whether wages had been paid for these days, in which case no further payment by way of compensation would be due. Mr Roderick sought to appeal on a question of law pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 to this Court: action number SG 5 of 1995. At the request of the parties the matter was referred direct to a Full Court. When the matter came on for hearing it was common ground that the tribunal had erred in not awarding compensation for the period between 18 February 1991 and 17 March 1991 inclusive as a result of the injury found by the Tribunal, and the Full Court allowed the appeal to enable the order of the Tribunal to be varied accordingly to cover this period. The reasons of the Full Court (Lee, O'Loughlin and Mansfield JJ) disclose that Mr Roderick sought to ventilate before the Full Court his grievance regarding the termination of his employment, but the Full Court held that it had no power on the hearing of the appeal to entertain the matters he sought to raise. The Full Court said: "Initially, there was some factual overlap between the compensation claim and the grounds for his termination, as the respondent by its initial decision maker and the delegate's review of 28 May 1993 had determined that he had no entitlement to compensation because his anxiety disorder was caused by reasonable disciplinary action by the respondent, and so by reason of the definition of 'injury' in s4(1) of the Act was not an injury at all. That definition excludes any injury suffered by an employee as a result of reasonable disciplinary action taken against that employee in connection with his employment. At that point, therefore, there was some overlap of circumstances relating to the reasons for his termination and to the conduct said by the respondent to amount to reasonable disciplinary action. However, the appellant succeeded before the Tribunal on that matter; it rejected the response of the respondent to the appellant's compensation claim and found that the appellant had suffered an injury under the Act. The respondent did not, on the appeal, seek to challenge that conclusion of the Tribunal. That question was not therefore one which this Court was required to address on the appeal." It is against that background that the documents recently lodged with the Registry must be considered. The first document was a notice of motion seeking an order: "That the applicant in the matter previously heard by the Federal Court and Full Court in the week commencing ____________________________ will seek leave of the Court to hear further consequential orders." The second document was a supporting affidavit from Mr Roderick the material parts of which read: "1. That the Court consider and give such directions in relation to the consequential matters. That to the extent that it maybe necessary that this matter be referred to the Full Court. For the making of the orders sought herein.
9. That the time for making these applications be allowed should that be necessary.
10. That the Court consider and give such directions in relation to the consequential matters arising out of the judgment of the Full Court of this Court delivered on the 4th December 1992 SG10 of 1992.
11. That the Court on further consideration of this matter declare the rights of the applicant in respect of his employment with the respondent.
12. That the Court declare whether the applicants employment has at any, and if so which stage been validly terminated.
13. That if the applicants employment with the respondent has been terminated then in the circumstances the applicant be re-employed by the respondent.
14. That the Court award such amounts be paid by the respondent to the applicant arising out of his employment with the respondent.
15. That the respondent pay the applicants costs in relation to the proceedings bearing Action Number SG 21 of 1991, Action Number SG 10 of 1992 and Action Number SG 5 of 1995.
16. Such further and other consequential orders that the Court deems fit to make." The Deputy Registrar interpreted these documents as indicating that the substantial remedy sought by Mr Roderick was that stated in paragraph 5 of the affidavit, namely a declaration relating to his employment and whether it had been validly terminated. In view of the history of the matter, and the possibility that the affidavit did not clearly express the remedy which Mr Roderick is seeking to achieve, I listed the matter to enable Mr Roderick to address the question whether a direction should be given to the Deputy Registrar to refuse to accept the notice of motion and affidavit. Mr Roderick has made it clear that he seeks by the notice of motion to ventilate before this Court, before either a single judge or, he would prefer, a Full Court, the question of the validity of the termination of his employment. He maintains that his employment was not validly terminated because he was no longer a probationary employee, and he seeks a declaration accordingly. He also seeks declarations that his employment continues and that he is entitled to remuneration. He invited me to hear a number of tapes which record the proceedings before the Review Tribunal which he says establish as a matter of fact that his probationary employment was confirmed and that his employment was wrongly terminated. He contended that these tapes would prove that the earlier findings of the Court that his probationary employment had not been confirmed were erroneous. I declined to hear the tapes as the merits of his dismissal are not presently before the Court. Mr Roderick further argues that the order of the Full Court of 4 December 1992 has not been carried into effect by Telecom in that the reasons for judgment of the Full Court indicate that the Review Tribunal to which the matter was remitted was required to give him natural justice, and it failed to do so. In my opinion the Court in action number SG 10 of 1992 has no jurisdiction to entertain the notice of motion which Mr Roderick seeks to file. The proceedings in that matter were concluded by the order of the Full Court. Mr Roderick informed me from the bar table that he presented multiple copies of the notice of motion he sought to have issued as he contemplated that the same application should be made in each of the three actions in this Court (i.e. SG 21 of 1991, SG 10 of 1992 and SG 5 of 1995), although after discussion with Registry staff he inserted only the action number of SG 10 of 1992 in the heading. The notice of motion has no better prospects even if it were issued in the other actions. Action number SG 21 of 1991 is also completed - having been the subject of the judgment which became the judgment under appeal in action number SG 10 of 1992. Action number SG 5 of 1995 has already been to the Full Court which held that it had no power to entertain the matters which Mr Roderick again seeks to agitate. As the history recited above shows, in action number SG 10 of 1992 the matter was remitted by the Full Court to a differently constituted Review Tribunal which has heard and determined the review of the decision to terminate Mr Roderick's employment. The Review Tribunal is the tribunal with statutory jurisdiction to review and finally determine questions of fact. Provided that the Review Tribunal conducted its procedures according to law, the findings of fact made by it are conclusive. Mr Roderick aired his grievances about the merits before that Tribunal, and they have been decided against him. Mr Roderick had rights under the ADJR Act to seek a review of the decision of the Review Tribunal if he considered that it had departed from the legal requirements of a fair hearing, and in particular if he considered that he was denied natural justice. He had previously exercised those rights in respect of the first hearing. No such review was sought within the time limit of 28 days from the delivering of the written reasons for decision, or at all. Moreover, the question of whether his probationary employment had been confirmed by the letter of 16 February 1990 has been decided against him by a Full Court. That decision is binding on him. He cannot re-agitate before this Court the question whether his employment had been confirmed. Although Mr Roderick's affidavit, apart from paragraph 5, seeks generally consequential orders, there are no consequential matters arising from the decisions in any of the actions that require further order. In my opinion the notice of motion which Mr Roderick wishes to file is misconceived. If it were filed it would be bound to fail. An application which has no prospect of success is one which is frivolous or vexatious within the meaning of O.46, r.7A: Bird v Free (1994) 126 ALR 475 at 480. I therefore direct the Deputy District Registrar to refuse to accept the notice of motion and supporting affidavit from Mr Roderick, and to refuse to issue the notice of motion, either in action number SG 10 of 1992, or in actions SG 21 of 1991 or SG 5 of 1995. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice von Doussa Associate: Dated: The applicant appeared in person Date of hearing : 1 May 1997