Background
Kenneth Onyema, formerly employed by the Australian Taxation Office, sought judicial review of the October 2025 decision terminating his employment. The ATO had found that he made or attempted unauthorised accesses to tax records of people known to him, breached APS Code of Conduct obligations, and supplied a fraudulent “expert opinion” during the misconduct process.
Mr Onyema tried to commence an ADJR Act proceeding in November 2025. His electronic lodgment was marked pending because supporting affidavit material needed to be combined, and the application was ultimately filed in 2026. He sought an extension of time, a stay that would effectively restore him to paid suspension pending the proceeding, and leave to amend his originating application.
The Court’s Holding
Justice Hill held that no extension of time was required. The ADJR Act requires an application to be lodged, rather than filed, within the prescribed period. Mr Onyema’s originating application reached the Registry on 24 November 2025, before the 25 November deadline, even though it was not then accepted for filing. The later difficulties with his affidavit did not alter when the application itself was lodged.
The Court refused the stay. On a preliminary assessment, Mr Onyema’s judicial-review grounds were extremely weak: the involvement of two delegates at the sanction stage caused no practical unfairness; the sanctions delegate could rely on the breach determination without revisiting it; the available delegations were sufficient; and the reference to the tax-access provision did not amount to an impermissible finding of criminal wrongdoing. Although the Court accepted he faced financial hardship, that factor was outweighed by the lack of apparent merit in the review case. The Court granted leave to amend the application, substituted the Commissioner of Taxation as respondent, and removed the individual decision-makers.
Key Takeaways
- For ADJR Act timing, an application may be lodged when received by the Registry even if it is later not accepted for filing.
- A sanctions delegate may act on an earlier breach determination without conducting a fresh merits review of that determination.
- Financial hardship alone did not justify a stay where the proposed judicial-review grounds had little apparent merit.
Why It Matters
The decision draws a practical distinction between lodging and filing in judicial-review time limits, particularly important for self-represented litigants encountering electronic filing defects.
It also confirms the limited role of judicial review in APS misconduct disputes: the Court assesses legality, not whether the employer’s factual conclusions or sanction were correct on the merits.