Wedesweiller, Craig Anthony & Ors v Cole, Robert William & Ors [1983] FCA 91

i. The time within which tne applicants may bring applications

for review under the Administrative Decisions (Judicial

2. The costs of the parties to these apovlications for exten-

sion of time be costs in the applications to be brought by the applicants for review. 3. In the event that such applications are not trought the

NEW SOUTH WALES DISTRICT REGISTRY No. G 214 of 1982

This 1S a proceeding in which a large number of applicants have joined, each seeking an extension of time in wnich to make application for review of decisions which they claim to be decisions for the purposes of the Administrative Decisions (Judicial Review Act 1977 ("the Act"), The applications are made pursuant to paragrabh 11(1)(c) of tne Act. Sectzon li, so far as it 18 material, is as follows:

"11.(1) An application to the Court for an order of review -

(a) shall be made in such manner as 1s prescrzbed by Rules of Court;

(b) shall set out tne grounds of the arplication; and

"(c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the appli- cant, including such a aecision tnat a person purported to make after the expiration of the period within which it was reauired to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of tne prescribea period) allows.

(3) The prescribed period for the purposes of para- graph (1)(c) is the period commencing on the day on wnich the decision 1s made and ending on the twenty- eighth day after -

(a) 1f the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out tne terms of the decision 1s furnished to the applicant; or

(b) 1n a case to which paragraph (a) does not apply -

(111) in any other case - tne day on wnicn a document setting out the terms of the decision is furnished to the applicant."

The decisions, review of which will be sought if these applications are granted, were all made on various dates in Novemter 1981. The subject application was filed on 23 November, 1982, 1n round terms one year after the decisions in question. It 1S common grcuna tnat the prescribed period for the purposes of paragraph 11(1)(a) of the Act was the

period of 28 days provided for in sub-section (3) and that

the applicatle provisions of that suod-section were either

for maxing application for review pursuant to s.5 or the Act accordingly expired on various days in December 1981. The applications for extension of time were therefore made approximately 11 months after the times for lodging applications for review had expired.

No submission was made that I nad no power to entertain the applications for extension of time because of a failure to lodge or make the epplications for extension within the prescribed period of 28 days; cf. Esso Research and Engineering Co. v. Commissioner of Patents (1960) 102 C.L.R. 347 per Fullagar J. at p.351. The respondents did not make any such submission because of the decision cf Northrop J. in Duff v. Freigah (1982) 43 A.L.R. 479; see particularly pp.481-483.

The applicants are all public servants employed in the Department of Social Security. They number 153 in all. The decisions, review of which will be sourfnt if the applications for extension of time succeed, are ceci31ons purporting to have been made cy a variety cf more senior employees 1n the Department, each 2 delegate of tne Fublac

Service Board, to declare, pursuant to sub-section 324(1)

of the Public Service Act 1922 that the applicants not pe paid salary from the time specified in the declarations.

The first three respondents are the members of the Public Service Board. The remaining respondents are the various delegates who signed the declarations which will be 1n question in the applications for review if they are permitted to be brought.

I pause to mention at this stage that in former times questions may have oeen raised by the court concerning the propriety of joining so many different applications in the one proceeding. But the respondents have taken no objection and the provisions of Order 6 Rule 2 are probably such as to enable the course taken to be followed. However, I express no concluded view and I mention that, although all the cases are of a similar kind, the detail of them 1s sucn as to reveal that there are factual differences and different circumstances in a variety of them. The matter not having been the subject of argu- ment, I do not propose to say more of it.

Tne declarations which the applicants wish to challenge were made because of an alleged failure on the part of each

applicant to comply with a lawful direction given by a

person having authority to give it. Each of the Girections was connected with tne recording or notifying or taking ateps to recover overpayments of social security benefits paid to pensioners and otners pursuant to the Social Services Act 1947. For example, the direction said to have been given to the first applicant, Mr. Wedesweiller, was as follows, "To commence withholdings on, or to notify recoveries section or clients of, any overpayment where recovery action has not been initiated".

The reference to "clients" 1s puzzling. I do not know to what the expression refers. But that 1s not a material matter, at least in relation to the applications now under consiaeration.

The effect of a declaration made pursuant to s.32A of the Public Service Act is provided for in sub-section (3) of the section which 1s as follows:

be paid salary in respect of any period in respect of whicn a declaration unaer sub-

section (1) has effect, or 1s to be deemed to have hed effect, in relation to him." Apparently the making of tne declarations in the

anstant cases led to the applicants not being paid their

salaries for periods of about one month or a little longer. The stake of each applicant in the proceedings is, therefore, approximately one month's salary.

There have been a number of decisions by other judges of the Court dealing with the considerations which the Court should take into account in exercising the

discretion which 1t has to extend time. These cases

unclude Doyle v. Chief of General Staff (1982) 42 A.L.R. 285 (Fisher J.), Ralkon Agricultural Co.Pty.Limited

v. Aboriginal Development Commission (1982) 43 A.L.R.535 (Keely J.), Duff v. Freijgah (supra), Lucic v. Nolan

(unreported, 1 November 1982, Fitzgerald J.) and Becerra

v. Fowell (unreported 18 February 1983, Morling J.).

I have read the judgments 1n each of these cases. I am inclined to agree witn Morling J. 1n Becerra's case (p.11) that differences are discernable in these various decisions as to the emphasis which snould be given various matters

in deciding wnether or not an extension of time should be granted in a particular case. But I woula respectfully suggest that this 1s not because of any fundamental dis- agreement amongst gudges as to the approach wnich should

be taken, but more to the need for each judge to adaress

himself to the particular circumstances of tne case before him, I do not wish to add to what has been Said except to say that there will be some cases wnich may be decided upon considerations wnich affect only the immediate parties. It will be appropriate to con- sider whether the delay which has taken place has been satisfactorily explained, tne prejudice whicn may be caused to an applicant by the refusal of an application, the pregudice which may be suffered by the Government or a particular department if the application is granted and, generally, what tne justice of the case requires. In other cases wider considerations will be involved. In this respect I refer to what was said by Fitzgerald J. un Lucic v. Nolan (p.13). The discretion 1S vested in the Court in completely unrestricted terms and no inaic- ation 1s given of the matter which the Court 1s to consider. The discretion is therefore a very wide one ana I would not wish to say more in case my doing so may have the effect of circumscribing in another case wnat tne facts of that case require.

which I wish to mention expressly. In Duff v. Freijah

establisned that delays by a solicitor are visited upon tne client when those aeléys are relevant to limitation periods or matters involving want of prosecution", That is not, witn great respect, a proposition which I would accept as having general application. It will ve so in some cases, but it may not be so in others. There can

be no general rule. In this regard 1 refer to what was

said by the High Court in Sopnron v. The Nominal Defendant

(1957) 96 C.L.R. 469 with regard to a view of tne prothonot-

ary of the Supreme Court of New South Wales to the contrary

of that propoundea by Northrop J. The Court said (pp. 474-475) :

"When the application was before the prothonotary he appears to have adepted the view that a fixed general rule existed that wnen the failure to give notice within time could not be ascribed to the fault of the claimant but was attributable entirely to fault on the part of nis solicitor, that necess-

arily amounted to sufficient cause within the meaning

orinciples laid down by Walsh J. in Martin v. Nominal

Defendant ((1954) 74 W.N.(N.S.W.) 121) and at gained

no support in the Full Court in the present case. No one, of course, Coubts that sucn a consideration

as the blamelessness of the claimant and the respons- ibility of his solicitor 1s very material. But every

case must be determined on 1ts own facts. Fixed formulae cannot be substituted for the wide woras of the sub-section, ...."

It is now appropriate to come to the particular facts

of tnis case. It shouid first be mentionec that there

are pending in the list of this Court a number of applications

for judicial review in whicn issues similar to those whach

will arise if the applications kere medeé for extension of

which I refer are made 1n matters G 59 to G 65 of 1982 anclusive, In all there are approximately a further

190 employees in the Department of Social Security unvolved in these other cases, In all but one of them the question 1s the validity of declarations made pur- suant to s.32A of the Public Service Act, In the remaining case the provisions of the Commonwealth Emoloyees (Employment Provisons} Act 1977 are in question, The applications G 59 to G 65 of 1982 were filed early

in 1982. Some may have been filed out of time but orders by consent have' been made extending the time as necessary. Those applications have been the subject of extensive directions nearings before judges of this Court and were fixed for hearing on 20 April last. On tnat day it was announced that there were good prospects of the matters being settled "industrially" and the applications were stood over generally. Counsel for the parties asked if some of the time set aside for the hearing of the other applications could pe made available to deal with these applic- ations for extension of time with the result that they were heard on 21 April last. It seems likely, although 1 nave not

been so informed, tnat the responcents and the industrial

organisation to which all applicants belong would wish to know whether these applications for extension of time will be granted before settlement negotiations in the other applications are concluded.

The applications for extension of time are supported by affidavits of Mr. Pasfield who is the applicants' solicitor, No affidavit has been filed by any applicant. Mr. Pasfield, in nis evidence, referred to the dispute earlier mentioned and to the stanaing down or suspension of employees 1n the Department of Social Security. He referred in detail to the extensive preparation needed before any applications could be filed and to tne history of the applications G 59 to G 65 in this Court. Particular reference was made to attempts to shorten the hearing time necessary to dispose of all the cases by attempts to select one or more as a test case or test cases. One, so selected, came on for hearing and succeeded by consent. It was of no assistance 1n indicating what the outcome of any other applicant's case should be. Despite the attempts whicn were made, it was clear to me when I con- ducted a directions hearing a week or so before 20 April that no selection had been made and that great difficulty was being experienced even then by the parties anc their

legal representatives in tryins to shorten the nearing.

Mr. Pasfireld deposed to tne extensive preparation that was necessary to prepare the otner aoplications for hearing and of the time occupied in that task.

More relevantly to the present application ne said that during 1982 numerous other employees in a similar Situation to those whose applications were to be heard on 21 April had sought advice as to the legality of their being stood down or suspended. He added, "Many of these people have lived and worked in other parts of New South Wales, such as Wollongong and Newcastle, as well as other country areas. Receiving instructions from these people has been a lengthy and time consuming task, which has only recently been completed". Mr. Pasfield's affidavit had been sworn on 23 November, 1982. He said that the cases which were out of time raised no new issue of fact or law which was not raised vy the cases presently before the Court, that is the cases involved in applications G 59 to G 65. Mr. Pasfield suggested that in the circum- stances no prejudice would be caused the respondents by granting the extension of time which was sought.

The respondents contest tnat statement. It 1s common

ground tnat the respondents nad no notice of the claims

which the applicants wish to bring if their applications for extension of time are successful until they were served with the application now under consideration. The period involved 1s a period of approximately 15 months, the decisions review of whicn is sought having voeen made in November 1981. On behalf of the respondents Mr. Cassin, who 1S a member of the Crown Solicitor's staff, has deposed to prejudice whicn the respondents will suffer if time

1s extended. The prejudice is of two distinct kinds. Firstly 1t 1S said that the re-awakening of the matter will have an adverse effect on good industrial relations which presently exist in the department. Secondly it is said tnat in many cases relevant evidence may have been lost to the respondents because various officers in the department now either have no recollection of the events in question or have a recollection of them which 1s much diminished because of tne lapse of time. Although I am prepared to take into account wnat Mr. Cassin says abcut a possible effect on good industrial relationsnips within the department I am not persuaded tnat this is a matter of substantial weight. I find it difficult to think that such relationships could be affected adversely, at least to any great extent, 1 employees were permitted

to pursue claims for unpaid salary in circumstances where

they considered that payment had been wrongly withhelc.

The other head of prejudice raised by Mr. Cassin 1s of a much more serious kind. I dao not recount the detail of nis evidence in this regard but 1t does tend to establish that the incidents 1n question have faded from the memories of those concerned, or at least a large number of them. On the other hand I must bear in mind that there are departmental records available from which potential witnesses may refresh their recoll- ections and that 1t 1s human experience tnat many persons called upon to recall events which occurred in tne past are able to remember a good deal if their mines are applied to the problem properly. Mr. Cassin does not suggest that ne has attempted to take statements from any of the persons in question. Once that exercise is commenced it may be found that tne witnesses, particularly with the aid of documents which are available, will remember sufficient of the events to enable tne respondents' case to be oroperly put. Aiter all evidence is given in many gurisdictions of events which took place many years before. The frailty of human recoliection is well xnown but, generally speaking, reliable evidence of events long since past 1s given daily in the courts of this country.

It 1s true tnat a person who has oeen involved in an

incident wili often known either at the time 1t nappens

or very soon afterwards that his evidence will be required. This tends to keep the event close to the surface of his mind more so than if he is asked more than twelve months after 1t occurred to recoliect it for the first time,

I have taken all the matters mentioned by Mr. Cassin into account and endeavoured to weigh them as

Ordinarily one mignt regard an application for extension of time made paced twelve months after the expiry of the prescribed time as being too late, partic- ularly where the prescribed period 1S as snort as 28 days. That 1s the view I think I would nave had in relation to these applications were 1t not for the fact that there are pending for hearing in the Court's list approximately 190 similar applications all arising out of similar incidents to those complainea of by these applicants.

It is that circumstance which, according to the submission of senior counsel, makes this case different from others. Furthermore, as a matter of fairness amongst emoloyees

in Similar situations it 1s only right, 1n his submission,

thet these applicants be allowed to proceed. de further

respondents, not forgetting the aifficulties they may have in obtaining evidence as mentioned by Mr. Cassin. Certainly there was not here any adminis- trative reason or reason not associated with the direct interests of the parties which ought to dissuade me from granting the extension whicn is sought.

Senior counsel for the respondents submitted that the period of 11 months was far too long. He Said that there seemed no reason why there could not nave been at least some general and earlier warning from the applicants' solicitors that these applications were in train. So far as they were concerned the matter was past anc was better left where it was. He also drew attention to the fact that there was no direct evidence from any avplicant explaining the delay or deposing to facts from which one could make a jJuagment as to the possibility or probability of a successful challenge to the decisions which are sought to be reviewed,

I nave weighed these various considerations with some anxiety. I confess to not having founa the matter

easy of resolution but in ail the circumstances I nave

reacned the conclusion that on balance the applications should be granted. The time for bringing the applic- ations will be extended up to and including 7 June. The costs of tne parties to these applications are to be costs in the substantive applications to be brought by the applicants. In the event that such applications are not brought, tne applicants are to pay the respondents' costs of these applications.

• Before concluding this judgment 1 would mention tnat during tne argument I expressed concern about the selection of the procedure to determine the apolicants' claims. Notwithstanding what was said to me oy senior counsel for the applicants, I remain unconvinced that tne clsims coula not have been brougnt in courts of general gurisdiction or in an industrial magistrate's court, If claims as numerous as these are to be trought an this Court in applications for juaicial review, tne Court wili soon become overburdened. Particularly

cases do not nave sufficient in common to enable one or

a group of them tc be made a test case or test cases,

pursuant to Order 6 Rule 2 so as to compel the cringing of cases or grcups of similar cases in senarate arolic-

ations. That would fave the effect of tne @ plicants

having to pay the usual filing fee of $100 in respect of each application or group of applications, I mention this because I was informed dy senior counsel for the applicants that one reason for joining so many applicants 1n the one application was to avoid having to vay more tnan one filing fee.

I express no concludec view on any of these matters. All I say is that if tnis procedure is resorted to in any substantial way vy industrial organisations, it will give rise to very serious problems for the administration