Australian Telecommunications Commission v Colpitts

Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION; DANIEL HENRY GUILFOYLE; JANENE
JARVIS and TREVOR SUTTON
And: B. COLPITTS
No. G24 of 1986
Administrative Law - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Fisher J.
Jackson J.

CATCHWORDS

Administrative Law - judicial review - decision to compulsorily retire employee under s.56 of the Telecommunications Act 1975 - provision in s.56 for review of decision - review machinery prescribed in regulations - reviewing body power to recommend only - whether a "review" in terms of s.56 - whether s.56 implemented in regulations

Appeal - objection to competency - no direct challenge to terms of judgment - additional orders sought - judgment comprising inter alia declaration of invalidity of decision under s.56 - declaration based on findings as to validity of regulation and breaches of natural justice - appeal directed at statutory question only - whether an appeal from a judgment in terms of s.24 of the Federal Court of Australia act 1976

Telecommunications Act 1975 s.56

Telecommunications Regulations rr.34, 35

Federal Court of Australia Act 1976 ss.4, 24

HEARING

SYDNEY

#DATE 30:7:1986

ORDER

1. The respondent's motion to dismiss the appeal as incompetent be refused.

2. The appeal be allowed.

3. The declaratory order of the Federal Court of Australia be varied by adding thereto the following words "by reason of the failure of the Commission and the Review Tribunal to observe the requirements of natural justice in making those decisions".

4. The matter be remitted to the Australian Telecommunications Commission for further consideration in accordance with the findings of the primary judge on the requirements of natural justice.

5. The Australian Telecommunications Commission pay to the respondent his costs of the appeal.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judge of this Court reviewing a decision of the first appellant, Australian Telecommunications Commission ("the Commission"), and a decision of the other three appellants who together comprised the Review Tribunal ("the Tribunal") established to review decisions of the Commission.

1. The respondent, an officer of the Commission, challenged the competency of the appeal. Because questions of fact and law bearing on the competency of the appeal and relating to the appeal itself are closely related, the Court heard from counsel on both matters.

2. The legal context for the events giving rise to the application for review is to be found in s.56 of the Telecommunications Act 1975 which reads:
   
   

"(1) If an officer appears to the Commission to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties of his position, the Commission may-

(a) transfer him to another position having the same classification as the position held (whether in the same or a different locality);

(b) reduce him to a lower position and salary; or

(c) retire him from the Service.

(2) The regulations shall make provision for and in relation to the review…