Kelly v Coates

Federal Court of Australia|1995-06-08|Before: Davies J

decisions under s.63D(2) Public Service Act 1922 to a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 ("the Merit Protection Act"). Section 63D(2) reads, inter alia:- "(2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him: (a) if the decision relates to a charge of misconduct - on either or both of the following grounds: (i) that the charge should have been dismissed; or

(ii) that the action directed to be taken in relation to the charge is unduly severe; or ... Indeed the applicant lodged appeals in respect of both decisions on 31 January 1995 but was successful in having those appeals deferred indefinitely pending the outcome of the application to this Court. The applicant contends that the appeal under s.63D of the Public Service Act does not provide an adequate provision for review of the decisions. In essence the applicant contends that s.63D does not enable the applicant to challenge the legality of the decisions and that, if the applicant proceeds under s.63D, then he will lose his right to make that challenge. The general grounds upon which judicial review of the decisions is sought are that:- 1. the powers of the delegate were not exercised within a reasonable time; 2. the powers of the delegate were exercised for an improper purpose; 3. the decisions breach the rules of natural justice because adverse material was considered without giving the applicant an opportunity to be heard; 4. the decision maker took irrelevant considerations into account; and 5. the decision maker did not take relevant considerations into account.

In respect of all these grounds, it appears to me that the matters sought to be raised would be encompassed by or overcome by a hearing by a Disciplinary Appeal Committee. Grounds 1. and 2. would be relevant matters in the Committee's consideration and grounds 3, 4 and 5 should be overcome by the opportunity of the further hearing. The "review" that s.10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v ATC (1986) 9 FCR 52 at 62, be a review involving "an independent exercise of powers directly affecting the decision reviewed." An appeal to the Disciplinary Appeal Committee pursuant to s.63D would, in my opinion, in the circumstances of the present case, satisfy these requirements. The Committee, established under the Merit Protection (Australian Government Employees) Act is constituted by 3 members, at least one of which is required to be an experienced legal practitioner (s.17 Merit Protection Act). Although it is not bound by the rules of evidence (s.37(1)(d)), the Committee may take evidence on oath or affirmation (s.18 Merit Protection Act) and the applicant will be able to appear by counsel (reg.20), call any witnesses (reg.17) and submit whatever documentary evidence he wishes to be considered. The Committee may confirm, vary or set aside the charges the subject of the appeal and it must provide reasons for its decision (s.63D(3) & (7) Public Service Act). There is no reason to believe that the Committee would be affected or influenced adversely to the applicant by those matters said by the applicant in his application to this Court to constitute the defects in the initial decisions.

In Inglis v Bateson (1990) 22 ALD 420 Neaves J examined the review provisions provided under s.76Z of the Public Service Act and considered those provisions to be inadequate as the appeal was limited to a determination of whether the decision "would be unreasonable". This is not the situation under s.63D. Nor is s.63D comparable to the provisions examined in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 where the decision of the review tribunal was recommendatory only and could have no binding force upon the initial decision maker. I consider that the appeal contemplated under s.63D is an adequate right of review within the meaning of s10(2)(b)(ii) ADJR Act. See also Beck v Thornett (1984) 6 ALN N209. Moreover, in my opinion, it is generally desirable that the time of this Court should not be taken up with issues for the determination of which the legislature has established adequate administrative remedies. It has been said in a number of reported cases that the burden lies upon a respondent to show that the Court should not exercise the jurisdiction conferred upon it: Kelly v Coates (1981) 35 ALR 93; Beck v Thornett (1984) 6 ALN N209; Mercantile Credits Ltd v Federal Commissioner of Taxation (No 1) (1985) 8 FCR 510; Convery v Zimmo (1985) 70 ALR 383; A E Bishop & Associates Pty Ltd v Trade Practices Commission (1989) 11 ATPR 40-985; Inglis v Bateson (1990) 22 ALD 420. Nevertheless, the general practice of the Court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided. This practice has been followed even with respect to appeals lying under s.76Z of the Public Service Act, the ambit of which, though not entirely unrestricted, is nevertheless wider insofar as the circumstances of the dispute are concerned than is the jurisdiction of this Court. This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute. In my opinion, this is a clear case where the administrative remedy should be availed of before the Court is asked to rule upon matters such as natural justice and relevant and irrelevant considerations. I shall therefore exercise the discretion conferred by s.10(2)(b)(ii) of the ADJR Act to dismiss the application. I should express my view, however, that, if at the conclusion of the administrative process, the applicant still wishes to seek review under the ADJR Act and wishes to raise grounds going to the decisions of Mr Malicki as well as to the decision or decisions of the Disciplinary Appeal Committee, it would be appropriate to grant any extension of time as may be required to permit him to do so. The application will be dismissed. Unless either party seeks costs, I shall make no order as to costs. I certify that this and the 6 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Davies. Associate: Date: 8 June 1995 Solicitors for the applicant: Geoffrey Edwards & Co. Solicitor for the respondent: Australian Government Solicitor Date of hearing: 5 April 1995 Date of judgment: 8 June 1995

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