Rahman v Commissioner of Taxation

ROBYN CLAYTON, ASSISTANT DEPUTY COMMISSIONER ACTIVE COMPLIANCE

MARTIN LEONARD, DIRECTOR OF CONDUCT, PERFORMANCE & PROBATION SUPPORT

ANDREW WATSON, ASSISTANT COMMISSIONER, COMPLIANCE, SUPPORT AND CAPABILITY

DAREN GLANVILLE, SENIOR DIRECTOR, SMALL BUSINESS AND INDIVIDUAL TAXPAYERS

FUNDA MUSTAFA, SENIOR CONSULTANT OF CONDUCT, PERFORMANCE & PROBATION SUPPORT

JUDGE: FLICK J DATE: 9 SEPTEMBER 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Rahman is a Commonwealth public servant employed by the Australian Taxation Office (the "ATO"). 2 In late February 2015 an Assistant Deputy Commissioner of Taxation notified Mr Rahman that he had been provided with a report "concerning suspected breaches of the APS Code of Conduct" and that Mr Rahman was therefore suspected to have contravened s 13 of the Public Service Act 1999 (Cth) (the "Public Service Act"). The suspected breaches focussed upon an allegation that in 2011 Mr Rahman had submitted an application for a position of employment with the ATO in his own name and numerous "false applications" under the names 'Muhammad "Ahsanul" Haque' and 'Ahsanul Haque'. 3 Mr Rahman was thereafter notified in March 2015 that the ATO was considering suspending him from duty pending the investigation into his suspected breach of the APS Code of Conduct. He provided a response. 4 On 17 March 2015, Mr Martin Leonard, a delegate of the Commissioner of Taxation, made a decision suspending Mr Rahman from duty on full pay. Mr Rahman requested a review of that decision. An internal review was undertaken by a Ms Karen Bugeia and in April 2015 she produced a report which contained the following recommendations: RECOMMENDATIONS 33. I recommend that Mr Leonard's decision to suspend Mr Rahman from duty with remuneration be set aside and that Mr Rahman is allowed to return to his duties. Mr Rahman and Mr Leonard are to be notified of the outcome accordingly. 34. Mr Rahman's request to be reimbursed for any loss of earnings (overtime) incurred during the suspension is to be denied. An employee has no entitlement to overtime and an assumption cannot be made that it would be offered or granted. In May 2015 Assistant Commissioner for Workplace Relations Mr David Miller reviewed Ms Bugeia's report but decided to uphold Mr Leonard's earlier decision. 5 In June 2015 Mr Rahman filed in this Court an Originating Application seeking (inter alia) a declaration that "the continued suspension from duty of the Applicant by the Respondent under [Regulation] 3.10 of the Public Service Regulations is invalid". There were six Respondents named in that proceeding. 6 Separate from Ms Bugeia's review, the ATO had engaged Ms Barbara Deegan of Ashurst Australia to undertake an external review. In May 2015 she provided Mr Rahman with a draft determination finding that he had breached the APS Code of Conduct. In July 2015 Ms Deegan concluded her investigation and held that Mr Rahman had breached that Code of Conduct. 7 On 27 July 2015 the ATO notified Mr Rahman that it was considering terminating his employment. Mr Rahman provided a response. 8 Prior to this, on 16 July 2015, Consent Orders were made granting Mr Rahman leave to discontinue his proceeding. He filed a Notice of Discontinuance on 30 July 2015. 9 On 17 July 2015 Mr Leonard notified Mr Rahman that he was suspended from duty without pay. 10 On 30 July 2015 Mr Rahman commenced a further proceeding in this Court. On that date he filed a further Originating Application again seeking (inter alia) a declaration that his suspension from duty without pay was invalid. On this occasion he named seven Respondents, ceasing his claim against Ms Deegan and adding Mr Andrew Watson and Mr Daren Glanville as Respondents. 11 At the close of the hearing on 1 September 2015, Mr Rahman remained suspended from duty without pay. On 2 September 2015, after the hearing, Mr Rahman was advised that his employment would be terminated that day. 12 Before the Court on 1 September 2015 were two Interlocutory Applications, namely: an Interlocutory Application filed by the Respondents on 14 August 2015 seeking a variety of orders, including an order that judgment be entered in favour of the Respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); and an Interlocutory Application filed by Mr Rahman on 21 August 2015 seeking (inter alia) the declaration referred to above, namely that his suspension from duty without pay was invalid. 13 It is concluded that no order should be made entering judgment against Mr Rahman but that an order should be made dismissing his Originating Application filed on 30 July 2015. It thereafter becomes unnecessary to resolve Mr Rahman's Interlocutory Application filed on 21 August 2015. To the extent that Mr Rahman's Interlocutory Application seeks leave to file an Amended Originating Application, the proposed amendments fail to provide any further or different reason not to dismiss the existing Originating Application. Nor does the decision taken after the close of the hearing to terminate his employment provide any reason to reach a different conclusion.

The Respondents' Interlocutory Application 14 The terms in which the Originating Application is expressed present some difficulties. However it be construed, it is - of course - confined to seeking review of a decision to suspend Mr Rahman; at the date of the hearing no decision had, as yet, been made relating to any sanction ultimately to be imposed. 15 In very summary form, the Respondents' Interlocutory Application was founded, at least in part, upon: a failure in Mr Rahman's Originating Application to identify the decision sought to be reviewed, the date upon which that decision was made, or the Respondent who in fact made that decision. The Respondents also relied upon the fact that: the Originating Application invoked the jurisdiction of this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"), the perceived difficulty being that it sought no relief in the nature of the remedies provided for in s 75(v) of the Constitution, namely prohibition, mandamus, or an injunction. Although the argument (at least in respect to the former submission) was readily understandable, the Originating Application is to be read as though it seeks to challenge the decision made on 17 July 2015 by the Fourth Respondent, Mr Martin Leonard. Read in this manner, the Originating Application is more consistent with the orders sought in Mr Rahman's own Interlocutory Application, namely declaratory relief in respect to his "suspension from duty without remuneration…". If it were read, for example, as including a challenge to the earlier decision of 17 March 2015, the question could well have arisen of whether it was an abuse of process to persist in seeking review of a decision the subject of an earlier Originating Application which had been discontinued. The latter submission did not address the fact that the second Originating Application did seek an order "that the Respondent be restrained from treating the said suspension from duty of the Applicant as valid". Why that relief, being injunctive relief, would not fall within s 75(v) of the Constitution was not explained. But that matters not. 16 The Respondents' Interlocutory Application was also founded upon two further propositions, namely: the fact that there was available to Mr Rahman an alternative means of reviewing the July 2015 decision, namely a means of review on the merits, culminating in an independent review by the Merit Protection Commissioner; and that the Originating Application, even confined to seeking review of the July 2015 decision, was nevertheless an abuse of process. The former proposition should be accepted; the latter proposition need not be resolved.

An alternative means of review 17 Relief in an application pursuant to s 39B of the Judiciary Act seeking judicial review of a decision may be refused in the exercise of the Court's discretion where there is a more convenient and beneficial means of review available. Relief in the form of a prerogative writ of mandamus, for example, may be refused in such circumstances: e.g., R v Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69 at 75 per Northrop J. And where there is a right of appeal from an administrative decision to the Administrative Appeals Tribunal, it has similarly been held that a party should normally invoke that right rather than the jurisdiction conferred on this Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth): Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; cf. Peczalski v Comcare [1999] FCA 366 at [12] to [13], (1999) 58 ALD 697 at 699; Duncan v Fayle [2004] FCA 723 at [25], (2004) 138 FCR 510 at 518 to 519. 18 The alternative means of review relied upon by Counsel for the Respondents in the present proceeding was that provided for in Division 5.3 of Part 5 of the Public Service Regulations 1999 (Cth) (the "Public Service Regulations"). It was accepted on behalf of the Respondents that the decision taken on 17 July 2015 was "reviewable action" within the meaning of reg 5.23 of those Regulations. Thereafter, reg 5.24 provides for what was variously referred to as "internal review" or "primary review". Regulation 5.29 provides for what was referred to as "external review" or "secondary review". 19 Regulation 5.29 provides as follows: Application for secondary review (1) An affected employee may apply in writing to the Merit Protection Commissioner for secondary review of a reviewable action if: (a) the Agency Head has told the employee under regulation 5.26 that the action is not a reviewable action; or (b) the employee is dissatisfied with the outcome of the Agency Head's review of the action under regulation 5.27. (2) The application must be made through the Agency Head. (3) The application must state briefly why the review is sought. 20 Mr Rahman did not adequately explain why these means of review were not a more appropriate course for him to pursue than the present application. Any distrust on his part regarding the integrity of the internal review process seems to be displaced by the fact that Ms Bugeia made a recommendation in his favour; and no reasons were advanced for why the independence or integrity of the external review process undertaken by the Merit Protection Commissioner could be open to question. 21 The means of review contained in the Public Service Regulations provide for a full merits review of the July 2015 decision; the present proceeding in this Court involves a far more confined review of the lawfulness of that decision. 22 From what may be discerned from Mr Rahman's submissions at present, it would seem that his case is more focussed upon the factual merits of what has occurred rather than the transgression of any legal principle. The Originating Application now before the Court, with respect, is a somewhat clumsy and inappropriate means to ventilate Mr Rahman's concerns.

An abuse of process 23 The Respondents' abuse of process argument was not an argument without considerable substance. 24 At its core was the Respondents' proposition that Mr Rahman: sought to re-canvass factual material that may well have been relevant to an application seeking judicial review of the March 2015 decision - that being impermissible because the previous proceeding had been discontinued; and/or sought to "re-litigate" those matters which had been resolved by the Federal Circuit Court and by this Court on appeal: see Rahman v Commonwealth of Australia as Represented by the Australian Taxation Office [2014] FCCA 6; Rahman v Commonwealth of Australia as Represented by the Australian Taxation Office [2014] FCA 1356. These concerns of the Respondents were only compounded by: the manner in which the Originating Application was drafted, including (in particular) that it failed to identify the precise decision sought to be reviewed, the date of that decision, or the Respondent who made that decision. These concerns of the Respondent only seemed to gain momentum when Mr Rahman confirmed during the course of the hearing that he would indeed seek to rely upon: the manner in which the internal review was conducted of the March 2015 decision; and the subject matter of the proceedings in the Federal Circuit Court and this Court on appeal in 2014 - his submission being that he was not seeking to "re-litigate" those issues because neither the Federal Circuit Court nor this Court had ever resolved them. 25 The lack of particularity in the Grounds of Review presently relied upon make it difficult to understand how Mr Rahman intends to advance his arguments. His oral submissions, with respect, only served further to confuse - rather than to clarify - any argument potentially revealing legal error. Notwithstanding his assertions to the contrary, there undoubtedly remains a very significant overlap between the issues resolved in the Federal Circuit Court (and this Court on appeal) and the issues Mr Rahman sought to canvass in the present proceeding. By way of example, Mr Rahman's previous allegations of the bad faith of those instituting the "Code of Conduct processes" ([2014] FCA 1356 at [41] per Buchanan J) have the same resonance in the present proceeding. 26 But it is that very lack of certainty which leads to a conclusion that judgment should not presently be entered in favour of the Respondents by reason of any abuse of process. 27 It is possible that both the manner in which the March 2015 decision was made, along with the subsequent review by Ms Bugeia, may be relevant to the July 2015 decision if it is sought to be impugned. It is equally possible that the facts relevant to the issues resolved by the Federal Circuit Court Judge (and by this Court on appeal) may also assume relevance. It is the hesitation in placing an impediment in the path of Mr Rahman that leads to the conclusion that the present proceeding should not be struck out as an abuse of process. 28 Had it been concluded that the existing proceeding was not to be dismissed, the next procedural step would have been to require Mr Rahman to detail his argument with sufficient particularity to expose what has previously been resolved and what (if anything) is a different argument. 29 Dismissing the Originating Application should, obviously enough, not stand in the way of the Respondents advancing any submission in any future proceeding that the manner in which Mr Rahman seeks to contend that the July 2015 decision (or the September 2015 decision) should be set aside amounts to an abuse of process. 30 A further residual concern in favour of dismissing the proceeding is that the utility of reviewing the suspension decision or decisions is not self-evident. The decision taken in July 2015, obviously enough, stands in contrast to that taken in March 2015 - from the date of the July 2015 decision Mr Rahman has been suspended without pay. It is, however, the decision made on 2 September 2015 to terminate his employment which naturally has the most immediate effect upon him.

CONCLUSIONS 31 An order dismissing the proceeding falls short of the order sought by the Respondents, namely an order that judgment be entered in their favour "in relation to the whole or any part of a proceeding". 32 An order entering judgment in favour of the Respondents could potentially have been made in relation to the extent of the present proceeding which sought to "re-litigate" the earlier proceeding discontinued in July 2015. Such an order could also have been made against so much of the present proceeding which sought to "re-litigate" the issues canvassed in the Federal Circuit Court and on appeal to this Court in 2014. 33 But one difficulty would have been to identify that "part" of the present proceeding which should be the subject of such an order. Another difficulty is that it could potentially handicap Mr Rahman if he sought merits review before the Merit Protection Commissioner. 34 It is thus considered that an order dismissing the present proceeding is the appropriate order. Such an order leaves Mr Rahman free to pursue, if he chooses, both internal and external review of the July 2015 decision in such manner as he considers appropriate. If in doing so he trespasses into those factual areas which render his claim an abuse of process, that is a matter which the Respondents remain free to raise. Nothing in the present reasons for decision precludes them from doing so. It also leaves Mr Rahman free to seek reconsideration in the Fair Work Commission, if he sees fit, of the decision taken on 2 September 2015. 35 Costs should follow the event.

THE ORDERS OF THE COURT ARE:

1. The Originating Application filed on 30 July 2015 is dismissed.
2. The Respondents' Interlocutory Application filed on 14 August 2015 is otherwise dismissed.
3. The Applicant's Interlocutory Application filed on 21 August 2015 is dismissed.
4. The Applicant is to pay the costs of the Respondents. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.