Case: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Outcome: cited
The other basis upon which the learned Magistrate rejected the application was that there would be prejudice to public administration. His Honour relied on well known remarks of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, at 310 and following. Wilcox J, speaking of extensions of time generally and comparing the situation of public administration with that where merely private rights are involved, said (at 312): 'By contrast, in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even after only a short delay. ... An applicant concerned to challenge a decision which has implications for other people or for day-to-day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications.' 14 The case for the respondent was that the APSC is: 'only a relatively small agency and the reinstatement of Mr Twining would impact on its administration'. Evidence accepted by his Honour showed that the APSC's current financial year budget provided for a reduction in staff numbers which would continue for at least another three financial years, that at the time the hearing before his Honour there was only one vacancy at the APS 3/4 level (the level at which the appellant had been engaged), and other matters. His Honour accepted the submission that: 'There was no regular staff turnover such as expected in larger organisations. Although reinstatement of Mr Twining would not be an impossibility it would be difficult and a burden. An adjustment would need to be made to [the respondent's] budget and programs offered by [the respondent, I gather to persons in the Australian Public Service Commission] could be affected.' 15 Speaking for myself, I would not have attached the same weight to those matters as did his Honour. However, I am unable to say that for him to have taken that view lay outside the scope of the sound legal exercise of his discretion. 16 In the course of examination of the matter today, other aspects of prejudice to the respondent emerged. As I observed in the course of argument, to some extent these are co-extensive with questions that might arise in the Court's discretion as to whether a remedy might be granted if, otherwise, purely legal grounds of challenge to the termination decision were made out, and the matters could be more fully debated in that context. However, given the way the matter has proceeded including that, for the benefit of the appellant, I have been prepared to review his Honour's findings about the adequacy of the explanation without seeing the transcript, and have perhaps gone further than one ordinarily would in departing from the findings of a court at first instance which has had the benefit of hearing and seeing highly relevant evidence given I think that the fact that the matters might later be considered, if time were enlarged, does not prevent them being considered on the question of whether time should be enlarged. 17 One of the factors that motivated Mr Jones, the respondent's delegate, to dismiss the appellant was that he had displayed behaviour to other employees which had very much upset them and made working relationships difficult. The material in the appellant's own affidavits shows that at a time in early 2005 when, albeit in ignorance, he believed that he had no firm legal basis for obtaining a remedy in the courts, he had quite gratuitously, and offensively, abused two officers of the respondent, including the delegate, who were senior to him and quite inappropriately broadcast to other people his offensive and rather unrestrained criticisms of them. The appellant says he was upset, 'out of his mind with worry', about his position at the time. 18 Be that as it may, it is quite clear that it would be irresponsible to put him back in the Programs Group in which he was employed. That means that about 35 to 40 of the 130 positions in the respondent's organisation would not be available to him. The other officer whom he calumniated was the head of the Corporate Group, which comprises another 35 or 40 people. Much less offensive, but quite inappropriate remarks were also directed to the head of the respondent Commission. 19 If time were extended and if the appellant were to succeed, it would be in that environment that his reinstatement on probation for a period of about a month would occur. At the end of that month, if not before, a decision would have to be made about whether overall his conduct and behaviour had been such that he should be taken on permanently. To the extent that there would be difficulty about fitting him in, it would, by reason of his own conduct, be very greatly magnified. Notwithstanding the public interest in decisions affecting the termination of employment of persons in the public sector being regularly and lawfully made, it seems to me that, in the circumstances, there would be likely such a disruption of public administration that the public interest dictates refusal of an extension of time. 20 For these reasons, I consider that the decision of the learned federal Magistrate was correct, even though I would reach it by a slightly different route. 21 Leave to appeal will be granted. The appeal is dismissed with costs I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 14 March 2006 Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr H Burmester QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 February 2006 Date of Judgment: 16 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/129.html