Australian National Railways Commissioner v Cruickshank, W.H

[1990] FCA 394

I	NOT FOR CIRCULATION
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IN THE FEDERAL COURT OF AUSTRALIA )

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SOUTH AUSTRALIAN DISTRICT REGISTRY j	1
GENERAL DIVISION	) No. SG37 of 1990
B E T W E E N :
AUSTRALIAN NATIONAL RAILWAYS COMMISSION

Applicant

- and -

WILLIAM HUTCHISON
CRUICKSHANK. A.R. MILLS
and R.K. WILLIS comprising
the AUSTRALIAN NATIONAL
RAILWAYS COMMISSION
DISCIPLINARY APPEAL BOARD

and KEVIN OAKLEY HOBBS

Respondent

EXTEMPORE REASONS FOR DECISION

Corm: von Doussa J.

19 July 1990

The application before the Court is made under the

Administrative Decisions (Judicial Review) Act 1977 ("the ADJR

It seems clear enough that M r Hobbs was involved in a

Act") to review a decision of an Australian National Railways

Commission Disciplinary Appeal Board, the members of which

comprise the first three respondents. The fourth respondent,

who was joined after the institution of the proceedings, is

the employee of the applicant whose discipline matter was the	t..
subject of the Board's decision.	I
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motor accident on 8 September 1989, and that he was the driver of the vehicle at the time. The vehicle belonged to the Department of Administrative Services and was on hire to the applicant. Mr Hobbs, who had been working in the course of his employment in the far north was driving the vehicle from Glendarnbo to Port Augusta . The accident happened at about 1.00 a.m. After the accident, investigations made by the applicant revealed that a blood sample taken from Mr Hobbs three or four hours after the accident gave a blood alcohol reading of 0.162 per cent.

A charge was laid against M r Hobbs pursuant to the Railway Service Rules made by the applicant pursuant to s.37 of the Australian National Railwavs Commission Act 1983.

The charge was laid under rule 165. The Notice of

Charge, in paragraph 1, informs Mr Hobbs :

"You are hereby charged with misconduct as defined in

Rule 160 of the Railway Service Rules."

One could be excused for wondering what that meant. Rule 159

defines misconduct; rule 160 itemises various kinds of misconduct. It is certainly an open interpretation of paragraph 1 of the Notice of Charge that Mr Hobbs was being charged with a failure to fulfil duty contrary to rule 160, and nothing more. However, below paragraph 4 of that document there is a statement of charge which is drawn in layman's language and concludes with the observation "Railway

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..

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Service Rules 160.l(b), (c), (d) and 161 apply."

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I	Those rules, as material, read :
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"160(1) An employee shall be taken to have failed to	1:	'
fulfil his duty as an employee if -
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(b) he is incapable of performing his duties, or is	1- :

inefficient or incompetent, by reason of causes	I
within his own control;	i :

(c) he is negligent or careless in the discharge of his duties ;

(d) he is guilty of improper conduct as an employee;

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Then rule 161 reads :

"Without limiting the generality of this Division, an	I;:
employee shall be guilty of misconduct if, contrary to these rules, he is, whilst on duty, under the influence of or affected by intoxicating liquor or a deleterious drug, or is absent without leave."

The subject matter of the Notice of Charge was duly considered by a delegate of the applicant and resulted in a decision being made on 4 January 1990. The effect of the decision was

to terminate Mr Hobbs' services as an employee of Australian

National Railways Commission at the close of business on 12
January 1990.

It is important, however, to read one material paragraph from the internal memorandum which is the written statement of that decision :

"In consideration of all the evidence available, including Mr Hobbs' reply to ANR 6 Charge, I have determined that no real benefit of doubt exists regarding

Mr Hobbs being negligent in his responsibilities as an

employee of Australian National and I recommend his
dismissal."

1. That recommendation was then approved and became the decision.

1. Against that decision - that is, the decision to dismiss .- Mr

2. Hobbs duly lodged an appeal pursuant to by-law 27 of the

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1. Boards of Appeal By-law. By virtue of by-law 26 he had an

2. entitlement to appeal to a Disciplinary Appeal Board on either or both of the following grounds: (a) that the employee should not have been found guilty of misconduct or, (b), that an excessive punishment had been imposed. It is clear enough from the documents that he chose the latter ground only.

   The first-named three respondents constituted such a Board, and the appeal was heard by them. A bundle of agreed documents has been tendered today (Exhibit A3) as the documents that were put before the Board. The only other information that has been put before the Court as to the

procedure adopted at the hearing of the appeal is to be found in the affidavit of Mr Hobbs; that is to the effect that he

sat outside the hearing room and therefore knows nothing personally about what happened, but that a union representative attended the hearing on his behalf.

It is not known, therefore, what procedures were followed

or what steps were taken by the Board to gather information.

By-law 28 gives a Disciplinary Appeal Board power to inform

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itself in such manner it thinks fit. It is not bound by the

rules of evidence, and it shall determine its own procedure.
The Board is directed to proceed without regard to legal form
or solemnities.

At the conclusion of the Board's deliberation it gave a decision on an ANR22 form as required by By-law 31. In a short space provided at the foot of the ANR22 form under the words "Decision of the Board", the members of the Board wrote in long-hand :

"Appeal allowed on severity of sentence, substitute fine of $500 and barred from driving ANR vehicle for a period

of six months. Appeal and bar to apply from 5.3.90."

No other written statement concerning the decision or constituting reasons for the decision was given. The form ANR22, if taken in isolation from the Act and the By-laws is apt to mislead as to the extent of the reasons which the Board should give in that it provides such a small space for the decision of the Board.

The Board, looking at that document alone, might think that its function is discharged by making the statement of the

decision. However, as is now common with Administrative Tribunals, there is a clear duty resting on the Board to give a statement of reasons in writing. In this instance, the primary obligation to do so arises by sub.s.42(5) of the Australian National Railways Commission Act which provides :

"A Disciplinary Appeal Board shall give reasons, in

writing, for its decision on an appeal."

That obligation is further reflected by By-law 31, sub-rule

After the decision was handed down a request was made to the Board hursuant to S. 13 of the ADJR Act by a representative of the applicant for a statement of reasons. The substantive requirements of s.13 under which that request was made are the same as the obligations resting on the Board under sub.s.42(5) of the Australian National Railwavs Commission Act. That

request was answered on 5 April 1990 by the chairman of the

Board who wrote :

"I advise that the Board's reason for the decision was

that all Board Members felt that in view of the circumstances of the matter, M r Hobbs age and previous good record, that the penalty of dismissal, in all the circumstances, was too severe. The Board took into account the fact that although M r Hobbs would be re- instated, he would suffer a considerable financial penalty (in addition to the fine) as he would only be re- instated from the 5th March 1990."

When this application for review was commenced, the

grounds on which review was sought were set out extensively in

paragraph 6 of the application and alleged that the Board took

into account irrelevant matters, or failed to take into

account sufficiently or at all, a number of circumstances that are said to be relevant. Not surprisingly, when the legal advisers of the applicant came to consider how to present an argument based on the grounds in paragraph 6, it became apparent that they could not do so without a more sufficient statement of reasons. The application was then amended to include an additional ground of review which reads :

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"The Disciplinary Appeal Board failed to provide proper or adequate reasons for its decision as required by section 42(5) of the Australian National Railways Commission Act 1983 and otherwise."

In my view, unless further reasons become available beyond those in the letter of 5 April 1990, that ground would be bound to succeed. It does not necessarily follow that the court would exercise its discretion to set aside the Board's decision in favour of the applicant. It is sufficient at this stage, without considering the discretion, for the purposes of the direction I intend to make in a moment to say that I think ground 7 would succeed. The obligation to give reasons under sub.s.24(5) of the Australian National Railwavs Commission Act is to be read with s.25D of the &Q

Inter~retation Act 1901, which provides :

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

Pausing there, it is clear that the letter of 5 April 1990,

fails to identify the material on which findings were made, and it fails to set out what findings of fact were made in areas where there would be room for uncertainty as to the basic facts. In relation to a similar statutory obligation to give reasons, Megaw J., as he then was, in Re Povser and Mills' Arbitration [l9631 1 All ER 612 at 616 said :

"Now, Parliament having provided that reasons shall be
given, in my view that must clearly be read as meaning
that proper, adequate, reasons must be given; the
reasons that are set out, whether they are right or
wrong, must be reasons which not only will be
intelligible but also can reasonably be said to deal with
the substantial points that have been raised..."

As the argument in this case progressed today, it b-ecame quite clear that it is impossible to embark upon any form of review of the decision in the absence of reasons which comply with the requirements of S. 25D of the Acts Interpretation Act, and have the quality of being adequate to explain the process of reasoning of the Board - that is the process by which it came to the conclusion that the penalty imposed initially was excessive and that the other penalty ought therefore to be substituted.

I	Having heard full debate upon the matter, including a submission that the applicant should be deprived of relief because it delayed in the prosecution of this application and failed to apply under sub.s. 13(7) of the ADJR Act for further particulars of the Board's reasons at an earlier stage, I have
come to the conclusion that the most expeditious way of doing justice between the parties, and of disposing of these
proceedings, is to make a direction at this stage under sub.s.13(7) of the ADJR Act requiring the respondents constituting the Disciplinary Appeal Board to furnish the applicant, who in turn will put before the court, an additional statement containing further and better particulars in relation to a number of matters.

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Particulars need to be provided to enable the court to embark upon the inquiry which paragraph 6 of the application requires. First of all, it is necessary that the statement of the Board's reasons indicate the evidence or other material which it took into account. The Board should identify, at least by bundle description, the documents that were before it, and should indicate whether it exercised its By-law powers to gather additional information - if so what additional information was gathered and what was that information?

~t is clear from the letter of 5 April 1990 that the
Board took into account the age and previous good record of Mr

Hobbs . That information is not disclosed in the bundle of

papers which has been put before the Court. Presumably that

information was gathered by other means. It may be that one or other of the nominated members of the Board was aware of the information and informed the others. That is a proper course, it seems to me, under the By-laws, but it is necessary that the information so ascertained by the Board collectively

be stated. It is not clear from the letter of 5 April 1990 for example, whether the previous good record is a reference to the general character of Mr Hobbs, a reference to his work experience, or whether it is a reference to the absence of a criminal record. It is necessary, therefore, that further particulars be given of the information which was gathered by the Board.

Next, it is necessary for the Board to identify what

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submissions, at least the main submissions, that were made to it, if any, by the parties who appeared before it at the hearing. It is not clear at the moment from the reasons whether either party made any submissions, but if they did the Board should also identify what it saw to be the substantial issues that fell for decision.

Insofar as those issues required an evaluation of the facts it is necessary that the finding of fact or the several findings of fact by the Board be identified and stated. I set out the charge and read the provisions of the Service Rules and the decision of 4 January 1990 to indicate that it is quite unclear to the Court on the bundle of papers that was submitted to the Board what conduct fell for punishment and what set of circumstances was adopted by the Board as constituting that conduct.

The paragraph from the letter of 4 January 1990 which I

set out would suggest that the decision-maker found that

beyond doubt there should be a finding of negligence. That

would, on the face of it, appear to be a finding that under Service Rule 160(l) (c) the employee had failed to fulfil his duty in that respect only. By the omission to refer to the subject matter of rules 160(l) (b) and (d) and to rule 161, it may be that the Board took the view that contraventions of those rules had not been found established by the applicant's delegate, and that punishment was to be confined to a breach

of rule 160(l)(c). Indeed it would be open to argument that

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the Board could not consider or impose punishment for more serious breaches of the Rules than the delegate determined had been proved. However, until such time as the Board states the set of circumstances upon which it proceeded, it is not possible to tell what view the Board took.

By way of further areas that require clarification I refer to the wording of rule 161. That is a rule that

applies to conduct of a person "whilst on duty". It is not clear from the papers whether Mr Hobbs was on duty in the strict sense or not when this accident occurred.

There is a paucity of information in the papers as to the reasons why Mr Hobbs was where he was at the time, whether he was driving a route that he had been directed to drive and it was part of his paid employment, or whether he was driving outside the hours of his paid employment. It is unclear whether in driving the route which he was, and at the time when he was, he was acting consistently with some overall

with instruction.	instruction which had been given to him, or inconsistently
Those are matters upon which the Board may well have made findings and this Court needs to know whether it did or it did not make such findings. The Court cannot review the Board's decision unless it knows what matters were taken into account
and what were not.

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Then there is the topic of t h e blood alcohol reading upon

which the appl icant ' s grounds f o r review place some emphasis.
Standing i n i so l a t ion from anything else, a c e r t i f i c a t e from
an analyst saying t h a t t he re was a blood alcohol percentage of
0.162 conveys l i t t l e useful information t o a l a y person,

indeed, t o anyone. I t i s necessary t o have t h a t reading

interpreted by expert opinion t o ind ica te t h a t it may have, o r

would have, had some pa r t i cu la r o r several pa r t i cu la r a f f e c t s

upon t h e f a c u l t i e s of t h e person.

A par t icu la r blood alcohol l eve l may have an e f f e c t upon

some people and not upon o thers . It i s a matter f o r

evidence. The Board was e n t i t l e d t o inform i t s e l f however it

saw f i t , and it may have f e l t t h a t it could s u f f i c i e n t l y inform i t s e l f from experience i n other cases about t he general e f f e c t s of alcohol. It is important t h a t t he Board ind ica te

what	in te rpre ta t ion it placed upon t h a t evidence.	The sample
was	taken four hours a f t e r t he event o r thereabouts.	What

findings d id the Board make i n r e l a t i o n t o t h a t ? Did it

assume t h a t t h e alcohol l eve l may have been higher o r lower o r

t h e same a t the time of the accident and preceding i t ? And

what re la t ionship, i f any, d id t h e Board f i n d between the

blood alcohol l eve l and the happening of t he accident. It i s t o be noted t h a t t he bundle of papers submitted t o t h e Board do not describe i n any d e t a i l how t h e accident happened. It

would be d i f f i c u l t from the papers t o t e l l t o what, i f any,

extent alcohol played a p a r t i n t h e happening of t h e accident.

The Board may have taken the view t h a t it was not proved t h a t

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alcohol played any particular part and that punishment should be awarded on the footing that it was proved only that Mr Hobbs had been negligent in the discharge of his duties (as

found by the delegate in the decision of 4 January 1990) coupled with the fact that he was driving with a blood alcohol limit that was above legal limits although it was not proved that this was the cause of the accident. It is necessary to know what set of circumstances was adopted by the Board for the purposes of considering punishment.

It seems to me it could also be relevant to know whether it was a routine part of Mr Hobbs employment to be driving a car or whether it was an isolated instance in the course of his employment to be driving a car. Again, whether any view about that was formed and if so what view is not disclosed.

A point that came out of the submissions of counsel for

Mr Hobbs today concerned the degree of severity of punishment

that may be imposed for conduct of the kind described in rule

163 (a) which may lead to suspension, and then under rule 164

to certain consequences in relation to salary unless otherwise directed by the Commission, or, it should be added on appeal, by the Board. It is not known whether the Board had any and if so what regard to rules 163 and 164.

One would not normally go back to a Board for further
particulars of its reasons where fairly comprehensive reasons
had been given to ascertain if the Board took into account

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something t o which no reference was made i n the statement of reasons. However as the matter i s being re fe r red back t o the

Board f o r par t icu la rs of i ts reasons, it seems t o me

appropriate t o draw the Board's a t t en t ion t o t h e grounds f o r

review i n paragraph 6 of t he appl icat ion and t o o f f e r t h e Board the opportunity t o cover those matters i f t he Board

thinks it appropriate t o do so. I t must be s t ressed ~ O W ~ V ~ E

t h a t t he Board is being required t o give pa r t i cu la r s of t he reasons which led it t o i t s decision on S March 1 9 9 0 , and is

not being asked t o j u s t i f y i ts decision a f resh on new reasons.

I propose therefore to d i r e c t t h e Board t o give

pa r t i cu la r s of reasons covering these matters. The order

w i l l be i n a form t h a t w i l l be s e t t l e d between m e and counsel

a s soon a s possible.	I think t h e Board should be di rected t o
give those par t icu la rs	a s soon a s prac t icab le but i n any event
within 2 1 days.

I w i l l reserve the question of cos t s of today's hearing

u n t i l t he applicat ion is f i n a l l y determined.

I c e r t i f y t h a t t h i s and the

)I preceding pages are a

t r u e copy	of	t he Reasons
f o r Decision of	Mr.	Jus t i ce

von Doussa.
Associate &L 4'- Dated: tLj J 9 i(Y40

Counsel f o r the applicant : Mr S.H. Milazzo

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Sol ic i tor for the applicant	: Low & Partners
Counsel for the Board	: M r J .J . OfHalloran
Sol ic i tor for the Board	: Australian Government

Sol ic i tor

Counsel for M r Hobbs : M r A.C. Collett

Sol ic i tor for Mr Hobbs : Johnston Withers

Date of hearing : 19 July 1990

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IN R THE FRDE A )

SOUTH AUSTRAtIA DISTRICT REGISTRY )	)
)
GENERAL DIVISION	1 No. SAG37 of 1990

B E T W E E N :

AUSTRAtIAN NATIONAL RAILWAYS COMMISSION

Applicant

- and -

WILLIAM HUTCHISON
CRUICKSHANX. A.R. MILLS
and R.K. WILLIS comprising
the AUSTRALIAN NATIONAL
RAILWAYS COMMISSION
DISCIPLINARY APPEAL BOARD

and KEVIN OAKLEY HOBBS

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER	VON DOUSSA J.
WHERE MADE	ADELAIDE
DATE OF ORDER	19 JULY 1990
THE COURT ORDERS THAT:

1. Direct that the first, second and third respondents give further and better particulars of the reason for the decision

relation to the following matters :	of the Disciplinary Appeal Board made on 5 March 1990 in	(a) what if any evidence or other material or information was before the Disciplinary Appeal Board when the said decision was made other than that contained in the bundle of documents marked Exhibit A3 herein (which is annexed hereto),
(b) what were the substantial issues, if any, raised by or on behalf of the Commission and Kevin Oakley Hobbs at
the hearing before the Disciplinary Appeal Board, (c) what facts or circumstances were found by the said Disciplinary Appeal Board to constitute the conduct for which punishment was to be imposed, (d) with reference to the Railway Service Rules mentioned in the Notice of Charge dated 24 November 1989, in respect of the contravention of which provision or provisions of the said Rules did the Disciplinary Appeal Board find, or assume, that Kevin Oakley Hobbs had failed to fulfil his duty as an employee and was to be punished.

2. Direct that the first, second and third respondents be at liberty to supplement the particulars supplied in compliance with paragraph 1 hereof with a further statement of the reasons for its decision made on 5 March 1990 having regard in particular to the matters set out in paragraph 6 of the application for an order for review herein.

3. Direct that the first, second and third respondents supply such further particulars of their reasons for decision as soon as practicable but in any event within 21 days from service of this order upon them such service to be accompanied by a copy of the reasons for decision given herein on 19 July

1990.

4. Adjourn the further hearing of the application for an

order for review to a date to be fixed after the expiration of the time fixed for compliance by the first, second and third respondents with paragraphs 1 and 2 hereof.

--	Note. Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.