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.

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.
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 of a decision of the Commission under this section upon application by an officer affected by it."

The regulations said to "make provision for and in relation to" review of a decision by the Commission under s.56 are regs 34 and 35 of the Telecommunications Regulations. They read:

"34.(1) A Review Tribunal shall undertake a full review of the decision of the Commission under section 55 or 56 of the Act in relation to which the application for the review was made.

(2) Subject to this Part, in the conduct of a review by a Review Tribunal -

(a) the Tribunal may inform itself in such manner as it thinks fit;

(b) the procedure to be followed is within the discretion of the Tribunal;

(c) the Tribunal is not bound by the rules of evidence; and

(d) the Tribunal shall proceed without regard to legal forms or solemnities.

(3) A Review Tribunal shall, in conducting a review, take into account -

(a) whether it would be practicable and desirable to retrain the officer for some other position in the Service; and

(b) whether it would be practicable and desirable to retrain the officer in the Service, having regard to the normal loss of staff employed by the Commission.

35.(1) Where a Review Tribunal is of the opinion that any action taken under section 55 or 56 of the Act should receive further consideration by the Commission, it may recommend accordingly to the Commission and may advise the Commission of any action which, in its opinion, should be taken by the Commission in order to do justice to the merits of the application.

(2) The Commission shall, upon receipt of a recommendation and advice from a Review Tribunal under sub-regulation (1), give further consideration to the matter and may confirm the decision previously made by it or take such other action as it considers appropriate to give effect to the recommendation or advice of the Tribunal."

On 31 January 1984 the respondent received notice of retirement from the Commission pursuant to s.56 of the Act. The notice asserted medical unfitness on his part to perform his normal duties and the unavailability of positions for which he was medically fit. He appealed to the Tribunal against the decision. By letter dated 23 November 1984 the Tribunal informed him that "there was insufficient evidence to recommend any alternative to the decision made by the Commission". The respondent lodged applications under the provisions of the Administrative Decisions (Judicial Review) Act 1977, seeking a review of each decision. Those applications were consolidated.
The primary judge found that the machinery established by regs 34 and 35 did not make provision for and in relation to the review of a decision of the Commission, in the sense contemplated by sub-s.56(2). He also held that, by reason of the failure of the regulations so to implement sub-s.56(2), any action taken by the Commission to retire an officer under sub-s.56(1) was invalid. Accordingly, any decision reached by the Tribunal was itself invalid. However, in case the matter should go further, his Honour dealt with allegations made by the respondent that the decision of the Commission and that of the Tribunal were each made in contravention of the rules of natural justice. It is unnecessary to refer to the grounds upon which those allegations were made; it is enough to say that they were upheld by the primary judge. His Honour concluded his reasons for judgment with these words:

" In the result, I make declarations that each of the decisions of the Commission by its delegate and the Review Tribunal is invalid (see Delta Properties Pty. Ltd. v. Brisbane City Council (1955) 95 CLR 11 at 18), I set aside the decision that the applicant be retired under s.56 of the Telecommunications Act 1975, and I order that the Commission pay the costs of the applicant of each application."

The jurisdiction of this Court to entertain the appeal derives from s.24 of the Federal Court of Australia Act 1976. Sub-section (1) confers jurisdiction to hear and determine -

"(a) appeals from judgments of the Court constituted by a single Judge".

Section 4 of that Act defines "judgment" to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". It is a judgment from which an appeal may be brought. There is ample authority that reasons for judgment are not themselves judgments - see the cases referred to in Ah Toy v. Registrar of Companies (1985) 61 ALR 583 at 588-589. It seems that no formal judgment was extracted in this matter. But his Honour's reasons for judgment were, as is the practice of the Court, preceded by a minute of orders. Counsel for the parties accepted that any judgment extracted would be in the same terms. Omitting reference to formal matters, the minute reads:

"(1) THE COURT DECLARES THAT:

Each of the decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under s.56 of the Telecommunications Act 1975 and the decision of the Review Tribunal in respect of the application of the applicant to it is invalid.

(2) THE COURT ORDERS THAT:

(a) The decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under s.56 of the Telecommunications Act 1975 be set aside.

(b) The respondent the Australian Telecommunications Commission pay the costs of the applicant of each application."

Because of the attack made on the competency of the appeal, it is important to have regard to the precise terms of the notice of appeal. These were debated by counsel and senior counsel for the appellants made it clear that she did not wish to amend further what was already an amended notice of appeal. In her submission, the notice as formulated was an appeal from the judgment of the Court.

"The Appellants appeal to the Full Court of the Federal Court of Australia from those parts of the judgement of His Honour Mr Justice Burchett sitting as a single Judge of the Federal Court of Australia in Proceedings Nos. 69 and 22 of 1985 wherein His Honour decided on 9 January 1986 that each of the decision of the Australian Telecommunications Commission by its delegate to retire the Applicant from the Australian Telecommunications Commission service under Section 56 of the Telecommunications Act 1975, and the decision of the second, third and fourth Appellants (the Review Tribunal) in respect of the application of the Applicant to it, is invalid because Section 56 of the said Act is inoperative.

Grounds

1. His Honour erred in holding that the Telecommunications Regulations as in force at the relevant times, made pursuant to the Telecommunications Act 1975 failed to fulfil the requirements of Section 56(2) of the Telecommunications Act 1975.

2. His Honour erred in holding that the decision of the Australian Telecommunications Commission by its delegate to retire the Applicant from the Australian Telecommunications Commission service under Section 56 of the Telecommunications Act 1975 was not validly made, in that in the absence of valid regulations as prescribed by Section 56(2) of the said Act, Section 56 is inoperative.

3. His Honour erred in failing to remit the matter to the delegate of the first Appellant for further consideration.

Orders Sought

1. A declaration that the provisions of Part V of the Telecommunications Regulations passed pursuant to the Telecommunications Act 1975 are valid.

2. A declaration that Section 56(1) of the Telecommunications Act 1975 is operative.

3. An order referring the matter to the delegate of the first Appellant for further consideration.

4. (Deleted).

5. Such other orders as the Court thinks fit."

One thing is clear from the notice of appeal - that the appellants take no issue with the primary judge's findings that there were breaches of the rules of natural justice on the part of the Commission and the Tribunal. They accept that if the appeal is competent and they succeed in their appeal, it can only be on the basis that his Honour erred in the view he took of the relationship between sub-s.56(2) and regs 34 and 35 and the implications of that relationship for any action taken under sub-s.56(1). It is a necessary consequence of the way in which the appellants put their case that breaches of natural justice did occur and that reconsideration by the Commission is therefore inevitable.
But the question remains to be answered - is there in truth an appeal from the judgment of the Court? Leaving aside the question of costs, the only order made by his Honour was that the decision of the Commission be set aside. There is no challenge to that order. I do not overlook the fact that the appellants ask for an order "referring the matter to the delegate of the first Appellant for further consideration" or the appellants' contention that what is sought is a variation of the judgment. I shall deal with those matters but for the moment I confine myself to the question - what, if any, of the judgment is challenged by the notice of appeal?
The judgment begins with a declaration of invalidity in respect of the decision of the Commission and that of the Tribunal. If that declaration were attacked by the appellants, there would be no doubt as to the competency of the appeal. But the appellants have not done this and this was a conscious decision on their part, as appeared from a discussion between the bench and their senior counsel. Their reason for not attacking the declaration, I take it, lies in an acknowledgement that the declaration was based not only on the validity of the relevant regulations and the consequent implications for action taken under sub-s.56(1), but also on his Honour's conclusions in regard to breaches of natural justice.
The proper construction to be placed on the judgment is not free from doubt. In the course of his reasons for judgment, his Honour dealt first with what might be called the statutory point, concluding his findings on that aspect with the sentence "Accordingly, the applicant is entitled to a declaration that his retirement under s.56 is invalid". Only then did he go on to consider questions of natural justice. His Honour's reasons for judgment conclude:

"In the result, I make declarations that each of the decisions of the Commission by its delegate and the Review Tribunal is invalid (see Delta Properties Pty. Ltd. v. Brisbane City Council (1955) 95 CLR 11 at 18), I set aside the decision that the applicant be retired under s.56 of the Telecommunications Act 1975, and I order that the Commission pay the costs of the applicant of each application."

While his Honour's earlier reference to the respondent's entitlement to a declaration would support an argument that the declaratory relief was based on the statutory point only, mention of Delta Properties Pty. Ltd. v. Brisbane City Council indicates persuasively that his declaration was based upon questions of natural justice as well. In that case, having referred to the requirements of natural justice, in particular that Delta Properties be given a full and fair opportunity of placing its case before the city council, the members of the High Court said in a joint judgment at p.18:

"If the council forms an opinion adverse to that person in disregard of these requirements the resulting ineffectiveness of the resolution expressing it may be established by a declaratory order".

Section 16 of the Judicial Review Act empowers the Court to make orders setting aside a decision, referring a matter to which the decision relates to the decision-maker for further consideration (subject to such directions as the Court thinks fit) and "declaring the rights of the parties in respect of any matter to which the decision relates" (para.16(1)(c)). In the ordinary course, if the Court accepts that one of the grounds in s.5 or s.6 of the Act has been made good, it is enough to set aside the decision and remit the matter to the decision-maker for reconsideration. A declaration would then be superfluous unless the Court considered that the particular circumstances of the case made the addition of declaratory relief appropriate. See for instance Frost v. Collector of Customs (1985) 63 ALR 297. The position may well be different when administrative review arises at common law. In that regard Lord Denning commented in O'Reilly v. Mackman (1983) 2 AC 237 at 253:

"Whilst the darkness prevailed, we let in some light by means of a declaration ... because otherwise persons would be without a remedy for an injustice".

A declaration in the present case would serve little purpose unless it were intended to point up the failure of the regulations to implement sub-s.56(2) and the consequent implications for the decision by the Commission to retire the respondent. Such a declaration would make clear why the matter was not to be remitted to the Commission, though that could be done in the course of reasons for judgment. But, in the light of the reference to Delta Properties, I do not think that one can limit the scope of the declaration in that way. In any event, the declaration itself is not challenged in the notice of appeal.
In arguing against the competency of the appeal, counsel for the respondent submitted that the decisions of the Commission and the Tribunal were held invalid inter alia for reasons which are unrelated to the statutory point and which are unchallenged. It followed, in his submission, that it was not open to the Court to remit an invalid decision for further consideration by the Commission, the decision being void and of no effect. See Calvin v. Carr (1980) AC 574 at 589; Dixon v. Commonwealth (1981) 61 ALR 173 at 179. The argument is sound as far as it goes, but it leaves out of account an important distinction between a decision based on the statutory point and one based on natural justice. Finding as he did for the respondent on both scores, clearly his Honour was right in not remitting the matter to the Commission. But if he had found for the appellants on the statutory point and for the respondent on questions of natural justice, equally clearly he would have remitted the matter to the Commission for reconsideration. What the appellants are asking this Court to do is to hold that his Honour was wrong on the statutory point. Such a ruling would, as counsel for the appellants pointed out, have consequences for persons other than the respondent. But that would not be a justification for this Court assuming jurisdiction in a matter in which jurisdiction was otherwise lacking.
However the appellants go further and argue that, in respect of the statutory point, this Court should rule in their favour, not on the basis that it was part of his Honour's reasons for judgment, but on the basis that unless the matter is remitted to the Commission, no action can be taken by the Commission in regard to the respondent under s.56 of the Act. They say that while the judgment stands the Commission cannot reconsider the respondent's retirement.
There is force in this submission. If the Commission were to treat the respondent as an officer in respect of whom no decision has been made under s.56 and then went on to consider his position in the light of whatever information was available to it, observing all rules of natural justice as were appropriate, it would inevitably be met with the argument that his Honour's conclusions in regard to s.56 and regs 34 and 35 gave rise to an issue estoppel between the parties. If the Commission nevertheless made a decision adverse to the respondent under s.56, that decision would no doubt be challenged by application to review and a single judge would feel obliged to follow the view taken by the primary judge, whatever his own view of the matter. The parties would then find themselves before a full court in the same position as they are now.

I mention these matters, not because questions of time and expense can determine whether jurisdiction exists. But they point up that embedded in the formal judgment of the Court as well as in his Honour's reasons for judgment, and as an essential part of the Court declining to remit the matter, is a finding adverse to the appellants on the statutory point. The position is not all that dissimilar to the one facing the appellant in Driclad Pty. Ltd. v. Federal Commissioner of Taxation (1966-1968) 121 CLR 45.
The matter may be tested in another way. If his Honour was wrong in the view he took of s.56 and regs 34 and 35, he was wrong in not remitting the matter to the Commission for reconsideration. The appellants seek a variation of the judgment, not only in the form of declarations concerning s.56 and the regulations but also in the form of an order "referring the matter to the delegate of the first Appellant for further consideration". In those circumstances, notwithstanding some reservations about the language of the notice of appeal, I am of the opinion that there is in truth an appeal from his Honour's judgment. It is more than an appeal from his Honour's reasons for judgment. It is an appeal from a finding implicit in the judgment and providing the only basis upon which his Honour could decline to remit the matter viz. that in the absence of regulations giving adequate implementation of sub-s.56(2), any action taken under sub-s.56(1) in regard to the respondent was ineffective.
In my view the motion to dismiss the appeal as incompetent should be refused.
As to the substance of the appeal, the appellants' main submission is that the primary judge erred in the meaning he ascribed to the word "review" in sub-s.56(2). His Honour's view of the relationship between the Act and regulations was summed up in this passage from his reasons for judgment:

"Neither a further consideration by the Commission, for which regulation 35 provides, nor a hearing by a Tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a 'review'".

The Act does not prescribe the machinery whereby a decision of the Commission may be reviewed; it leaves that matter entirely to the regulations. Regulation 31 reads:

"For the purposes of the reviews of decisions of the Commission under section 55 or 56 of the Act, the Commission shall, from time to time, arrange for the establishment of such Review Tribunals as are required."

Regulation 32 deals with the constitution of a Review Tribunal, such a body comprising a chairman, being a person who holds the office of Chairman of a Promotions Appeal Board; an officer nominated by the Commission; and an officer nominated by the appropriate employees' organization. Regulation 33 permits an officer affected by a decision of the Commission under s.55 or 56 to apply in writing for a review of the decision. Regulations 34 and 35 have been mentioned already.
The appellants' submission may be summed up in this way. The term "review" is a term of wide meaning and its meaning must be determined by reference to the terms of the particular statute. It is not a necessary ingredient of "review" that there be a power on the part of the reviewing body to set aside or vary the original decision or substitute its own decision. In the Telecommunications Act, the legislature has drawn a clear distinction between reviews on the one hand and promotions appeals and disciplinary appeals on the other. Promotions appeals are dealt with in Part V Division 4 of the Act and Part III of the regulations; disciplinary appeals are dealt with in Part V Division 6 of the Act and Part IV of the regulations. The Act spells out the composition of Promotions Appeal Boards and Disciplinary Appeal Boards, their powers, and the consequences of an appeal being allowed. In the case of a review under s.56, the legislature has expressly left those matters to the regulations, thereby contemplating that the nature and consequences of a review may well be different from an appeal.
The respondent's submission is that regs.34 and 35 do no more than empower the Tribunal to recommend a reconsideration of action taken by the Commission or to advise the Commission of action it considers should be taken. The Commission may ignore that advice. The Tribunal has no power to alter or in any way interfere with a decision made by the Commission. The review contemplated by sub-s.56(2) is, as the primary judge found, a review by an independent tribunal with power to alter the decision of the Commission. The review provided by the regulations falls short of what the Act requires.
His Honour referred to the use of "review" in contemporary legislation such as the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977 where the independent exercise of powers directly affecting the decision reviewed is provided for. His Honour also referred to a number of decisions in which "review" was used by courts in the context of a rehearing. There is a recent discussion of "review" in the context of judicial review in Woss v. Jacobsen (1985) 60 ALR 313. His Honour concluded that "review" was used in sub-s.56(2) "to describe a challenge, to be brought by 'application', to administrative action, provision for which is to be made by regulations. In such a setting a legal signification is suggested. And the tide of modern legislation, in the area of administrative decisions, has for some time flowed strongly in the direction of fuller rights of review."
I accept, with respect, the general considerations mentioned by the primary judge. But in the end, one is driven to find the meaning of "review" in sub-s.56(2) from the section itself, seen in the context of the entire statute. The fact that the legislature has expressly chosen "appeals" as its terminology where matters relating to promotions and discipline are involved but "review" in the case of action under s.56 is a matter of very considerable importance. One may ask rhetorically - why not use "appeals" in relation to s.56 if the intention was that there should be a body with power to reconsider the action of the Commission with a view to confirming or setting aside that action or taking such other steps as might be thought appropriate? Indeed, why not provide in the statute, as has been done for promotions and disciplinary appeals, the structure of the reviewing body and its powers?
I agree that a review by a tribunal which has no greater powers than to recommend to the Commission what, in its opinion, should be done by the Commission to do justice to the merits of the application is an unsatisfactory form of review. And it may well be that this is a matter to which some attention should be given. But, as a matter of construction of the statute, I am not persuaded that the review provided by Part V of the regulations is not a review within the language of sub-s.56(2) of the Act.
His Honour referred to s.64 of the Telecommunications Act which, he said, "provides for a 'review' of certain decisions of officers and Boards by the Commission itself, with power to alter the result of the original decision". But s.64 is concerned with the situation where a charge against a person under sub-s.58(3) (a charge of failing to fulfil duty as an officer) has been established by an authorized officer or Disciplinary Appeal Board and, what may loosely be called fresh evidence, has become available. A person against whom a charge has been found established may request the Commission to review the finding, or action taken in respect of the charge, on the ground "that evidence that was not given, and could not reasonably be expected to be given, on behalf of the person in the course of the investigation of the charge is now available and that the evidence might, if it had been given, have resulted in the charge being found not to have been established, or in less severe action being taken in respect of the charge, as the case may be".
It is true that, having reviewed a finding, the Commission may confirm or quash the finding or confirm the action taken or mitigate its severity. But the review contemplated by s.64 is not by way of an appeal from the original finding; what is involved is a reconsideration of the matter in the light of the new evidence. The use of "review" in s.64, if anything, serves to emphasise that what sub-s.56(2) contemplates is not an appeal from action taken by the Commission under sub-s.56(1).
Regulation 34 requires a Tribunal to undertake "a full review of the decision of the Commission under section 55 or 56 ...". The regulation says nothing in express terms as to what the Tribunal may do, having undertaken a full review. In my view, that matter is dealt with in reg.35 which empowers the Tribunal, if of the opinion that the action taken should receive further consideration by the Commission, to recommend accordingly and advise the Commission of the action which should be taken. I am unable to treat the use of the expression "a full review" as carrying within it the power to set aside action taken by the Commission. That is to read too much into the words. In any event that was not the appellants' submission for they invited the Court to treat reg.35 as defining the powers of a Tribunal which has undertaken a review under reg.34. In my opinion, that is the way reg.35 should be regarded. If the Tribunal is not of the opinion that the action taken should receive further consideration, it does nothing. The reference to "a full review" is, I think, intended to indicate that the Tribunal looks at the matter afresh but not that it may countermand any action taken by the Commission. The Commission is not bound to accept the recommendation and advice of the Tribunal and that is an unsatisfactory situation. But it does not follow that the regulations fail to comply with sub-s.56(2). In my view they do comply.
Having reached that conclusion, it is unnecessary to deal with the question of the implications for action taken under sub-s.56(1) in the event that there has been no implementation of sub-s.56(2).
The appeal should be allowed. The declaration made by his Honour should be varied by adding thereto the words "by reason of the failure of the Commission and the Review Tribunal to observe the requirements of natural justice in making those decisions". There should also be an order remitting the matter to the Commission for further consideration in accordance with the primary judge's findings on the requirements of natural justice. As this is a test case, the appellants have agreed to meet the respondent's costs in any event.

JUDGE2

I have had the advantage of perusing the reasons of Toohey J. in this matter. I agree with his conclusions and with his reasons.

I wish to add some further reasons for my departure from the view of the trial judge on what he saw as the lack of an effective remedy under the regulations establishing the Review Tribunal.
He was of opinion that s.55 and s.56 should not be construed as permitting retrenchment or compulsory retirement without any effective remedy. The fact that these sections appeared in an Act which did not permit the Commission to promote one officer or another except subject to a right of appeal to a body with power to set the decision aside he said rendered such a construction unlikely. He was therefore of the view that the regulations as he construed them did not provide for a review such as was contemplated by s.56(2).
However it seems to me that there may be persuasive reasons why Parliament may have considered that the review of decisions under s.55 and s.56 should be dealt with quite differently from those committed to Appeal Boards and by a body with less extensive powers than were granted by the Act to those Boards. In consequence it left to the executive the establishment by regulation of the appropriate body and the determination of its powers. It is therefore helpful to appreciate how different are the decisions which fall for consideration by these bodies which differences in my opinion can explain the contrasting powers that they have in relation to such decisions.
The Act establishes two Appeal Boards one of which deals with contested promotions (the Promotions Appeal Board) and the other with matters of discipline (the Disciplinary Appeal Board) if an officer fails to fulfil his duty. The jurisdiction of each of these bodies is relatively straightforward and the matters committed to them are capable of objective determination. In the case of promotions it is sufficient to identify the task of the Board as requiring it to determine questions of efficiency and seniority (s.51) whereas on matters of discipline the Appeal Board enquires into the nature of the misconduct and the propriety of the penalty. It is quite understandable that in these circumstances the Appeal Boards should be given by Parliament power, on matters of misconduct, to confirm vary or set aside the decision under review and to give certain binding directions to the Commission (s.62) and power, on matters of promotions, to allow an appeal, cancel the promotion and promote the appellant (s.51).
The matters under consideration and potential review in s.55 and s.56 are much more wide-ranging and much less capable of objective determination. The decisions which the Commission is required to make are substantially on the basis of value judgments and questions of degree. Furthermore binding directions by the Review Tribunal to the Commission could be inappropriate and undesirable where decisions relate to performance of personal services and the adequacy of such performance. These difficulties are very apparent when consideration is given to the matters of discretion and value judgments which are necessarily involved in implementing the two sections. They are as follows:

"55. (1) If, at any time, the Commission finds that a greater number of officers occupying positions of a particular classification is employed than is necessary for the efficient working of the Service, an officer whom the Commission finds to be in excess may be transferred to such other position of equal classification as the officer is competent to fill, and, if no such position is available, the officer may be transferred to a position of lower classification.

(2) If no position is available for the officer, the Commission may retire him from the Service.

(3) The regulations shall make provision for and in relation to the review of a decision of the Commission under this section upon application by an officer affected by it.

56. (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 of a decision of the Commission under this section upon application by an officer affected by it."

I have emphasised the portions of the sections which require the exercise of discretions and making of judgments and assessments of the capacities of officers whom hereafter I will refer to as redundant (s.55) or incompetent (s.56).
Another difficulty arises when judgment has to be made on the capacity of the Commission to make available at the relevant time positions of equal or lower classification to the redundant or incompetent officers. This would be a difficult matter for the Tribunal to determine.
In the light of such wide-ranging and general considerations it is in my opinion not surprising that the Review Tribunal has not been established under the Act and with powers akin to those of an Appeal Board. The contrasting role which it is contemplated that each of the bodies will perform is immediately emphasized by their different titles, and the fact that two are established by the Act and the other by regulation. Where matters involving personal service by employees are concerned it is understandable that a review body may not be empowered to give binding directions to an employer but having given a full review to all the circumstances is only empowered to remit the matter for further consideration by the employer in the light of its recommendations and advice.
As far as the applicant for review is concerned, he is entitled to have all circumstances fully reviewed by another body without legal or procedural inhibitions. In particular he is entitled to have the review body assess whether in its opinion it is practical for him, as an allegedly redundant or incompetent officer, to be retrained, thereby indicating that retirement is a matter of last resort. In performance of these functions the Tribunal is required, as found by the trial judge and not challenged, to observe the rules of natural justice. The Commission is subsequently required and obliged to consider the advice and recommendations of the Tribunal but entitled to make its own decision. As it might be unrealistic and impractical to require the Commission to retain the services of an officer whom it assessed as redundant or incompetent, the most appropriate course could be seen to be to establish an independent body to ensure that all feasible alternatives are considered by both the Tribunal and the Commission before the officer is returned.
Review Tribunals are not always without exception given power to vary or set aside the decision under review or to make a decision in substitution therefor. I refer to the express limitation on the powers under s.43 of its Act of the Administrative Appeals Tribunal now to be found in the Migration Act 1958. Previously under Part XXII of the schedule under the Act dealing with appeals from deportation orders the powers of the Tribunal were limited to either affirming the Minister's decision or remitting it to him for reconsideration. These provisions now appear in s.66E of the Migration Act and in the case of a remitter the Minister is, as with the Commission in this case, bound merely to reconsider in the light of the Tribunal's recommendation. It follows that there is no apparent reason why Parliament may not have been prepared to accept this approach as appropriate in matters under s.55 and s.56 of the Act. As I have indicated I see persuasive reasons for this point of view.
I agree with the orders proposed by Toohey J.

JUDGE3

The respondent commenced employment with the first appellant, which I shall call "the Commission", on 24th January 1978 and on 31st January 1984 was notified by it that a decision had been made to retire him under the provisions of s.56(1)(c) of the Telecommunications Act 1975.

S.56(1) of that Act provides that:-

"(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."

An exercise by the Commission of a power under s.56(1) may not dispose of the matter finally, however, because s.56(2) contemplates the possibility of review of such a decision. It is as follows:-

"(2) The regulations shall make provision for and in relation to the review of a decision of the Commission under this section upon application by an officer affected by it."

The provision made by the relevant regulations - the Telecommunications Regulations - is for the establishment of "Review Tribunals" (reg. 31) which are to be constituted (see reg. 32(1)) by three persons, namely a Chairman who is also the holder of the office of Chairman of a Promotions Appeal Board (see reg. 32(1)(a) and ss. 52 and 53 of the Act), an officer nominated by the Commission for the purposes of the review (regs. 32(1)(b) and 32(2)) and also an officer nominated by the appropriate employees' organisation (see regs. 32(1)(c), 32(3) and 32(4)).
Reg. 33 deals with the manner in which an application for review may be made to a Review Tribunal, and reg.34(1) provides that:-

"(1) A Review Tribunal shall undertake a full review of the decision of the Commission under section 55 or 56 of the Act in relation to which the application for the review was made."

Regs. 34(2) and 34(3) then provide, in relation to the Review Tribunal, that:-

"(2) Subject to this Part, in the conduct of a review by a Review Tribunal -

(a) the Tribunal may inform itself in such manner as it thinks fit;

(b) the procedure to be followed is within the discretion of the Tribunal;

(c) the Tribunal is not bound by the rules of evidence; and

(d) the Tribunal shall proceed without regard to legal forms or solemnities.

(3) A Review Tribunal shall, in conducting a review, take into account -

(a) whether it would be practicable and desirable to retrain the officer for some other position in the Service; and

(b) whether it would be practicable and desirable to retrain the officer in the Service, having regard to the normal loss of staff employed by the Commission."

In the proceedings before the primary Judge the respondent succeeded in having declared invalid both the decision of the Commission under s.56(1) and the decision of the Review Tribunal. His Honour arrived at that conclusion by taking three steps. The first was to adopt the view that the use in s.56(1) of the term "review" carried with it the requirement that the person or body conducting the review have power to reverse or modify the decision the subject of the review. The second step was then to hold that reg. 35, which is in the following terms:-

"(1) Where a Review Tribunal is of the opinion that any action taken under section ... 56 of the Act should receive further consideration by the Commission, it may recommend accordingly to the Commission and may advise the Commission of any action which, in its opinion, should be taken by the Commission in order to do justice to the merits of the application.

(2) The Commission shall, upon receipt of a recommendation and advice from a Review Tribunal under sub-regulation (1), give further consideration to the matter and may confirm the decision previously made by it or take such other action as it considers appropriate to give effect to the recommendation or advice of the Tribunal."

set out exhaustively the Review Tribunal's powers on such a review. The third step was that having adopted that view of the effect of reg. 35, His Honour held that the Regulations as so construed did not provide for the "review" contemplated by s.56(1) and that the availability of a "review" was an essential condition of action under s.56(1).

Accordingly the primary Judge held that there was no power to retire the respondent and the Commission had acted ultra vires in attempting to do so. Recognizing, however, that the matter might be the subject of further challenge, His Honour proceeded to deal with the matter on the alternative basis that there was power under s.56(1) to retire the respondent. His Honour's view on this point was that the requirements of natural justice should have been observed by the Commission, and by the Review Tribunal, and that in neither case had this occurred. Accordingly he held the decisions invalid on this basis also.
The orders made by the primary Judge were in the following terms:-

"(1) THE COURT DECLARES THAT: Each of the decisions of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under s.56 of the Telecommunications Act 1975 and the decision of the Review Tribunal in respect of the application of the applicant to it is invalid.

"(2) THE COURT ORDERS THAT:

(a) The decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under s.56 of the Telecommunications Act 1975 be set aside.

(b) The respondent the Australian Telecommunications Commission pay the costs of the applicant of each application."

In the proceedings before us the primary Judge's findings on the issue of natural justice are not attacked. Further it is not argued that in consequence of the findings on that issue it was wrong for His Honour to declare that the decisions of the Commission and the Review Tribunal were not validly made. What is sought by the appellants is to have set aside the primary Judge's finding that there is no power to retire the respondent while the Regulations remain in their present state, the orders formally sought by the amended Notice of Appeal being:-

"1. A declaration that the provisions of Part V of the Telecommunications Regulations passed pursuant to the Telecommunications Act 1975 are valid.

2. A declaration that Section 56(1) of the Telecommunications Act 1975 is operative.

3. An order referring the matter to the delegate of the first Appellant for further consideration.

4. (Deleted)

5. Such other orders as the Court thinks fit."

The respondent has objected, pursuant to Ord. 52, r.18(1), to the competency of the appeal and he relies on the observation of the Judicial Committee in The Commonwealth v. Bank of New South Wales (1949) 79 CLR 497 at 625 that:-

"... an appeal is the formal proceeding by which an unsuccessful party seeks to have the formal Order of a court set aside or varied in his favour by an appellate court. It is only from such an order that an appeal can be brought."

and upon the observation of Barwick C.J. and Kitto J. in Driclad Pty Ltd v. Federal Commissioner of Taxation (1968) 121 CLR 45 at 64 that:-

"... it is of the nature of appeals, as s.73 of the Constitution recognizes, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment."

That these principles are applicable to the appeals of the nature presently in question is clear (see Ah Toy v. Registrar of Companies for the Northern Territory (1985) 61 ALR 583 at 588-589) because by s.24(1)(a) of the Federal Court of Australia Act 1976 the Court's jurisdiction is to hear and determine "appeals from judgments of the Court constituted by a single Judge" and the term "judgment" means (s.4) a "judgment, decree or order, whether final or interlocutory, or a sentence", terms indistinguishable from those used in s.73 of the Constitution.

By Ord. 52, r.18(2) the appellants bear the burden of establishing that the appeal is competent and they seek to discharge the burden by relying on two matters. First it is said that the appellants, while not seeking to vary the wording of the declaration to which I have referred above - i.e. Order (1) - seek also declarations in the form of paragraphs 1 and 2 of the "Order Sought" in the Notice of Appeal, i.e. orders said to limit its effect. Secondly, it is put that an order should have been made remitting the matter to the Commission for reconsideration and that such an order could not have been made while His Honour's finding that s.56(1) was inoperative remained.
In considering the first of these bases it must be borne in mind that the declaration made by His Honour that the decisions were invalid reflects his decision on two distinct matters, namely:-

(a) whether there was statutory power to make those decisions;

(b) whether, although there was statutory power to make those decisions, an exercise of that power was not valid if it had been made otherwise than in accordance with the requirements of natural justice.

The decision on the second of these matters determined as between the parties the question whether the particular actions which the Commission and Review Tribunal had taken in relation to the purported retirement of the respondent were validly taken. It did not touch on any future action. The decision on the first matter, however - as was accepted by the parties in argument before us - has the effect that until the Regulations are amended in relevant respects, the parties to the proceedings are bound by the finding that there was no power to retire the respondent under s.56.
It is clear, of course, that there may be an issue estoppel on a "bare" question of law. See the remarks of Aickin J. on this question in Queensland v. The Commonwealth (1977) 139 CLR 585 at 614-615. When the question of law involves the construction of a statutory provision the question whether an estoppel should be permitted or, as it is sometimes put, should "prevail against the statute" depends, in my view, on whether the policy of the statute should be seen as intended to prevail over the "rights" of individuals. Compare Kok Hoong v. Leong Cheong Kweng Mines Ltd (1964) AC 993 at 1015-1016.
There is not to my mind any reason why the policy of the Telecommunications Act appearing from its terms should be treated as excluding the possibility of an estoppel as to the construction of s.56 binding the Commission as against one of its employees. S.56(1) on any view requires that there be provision made by regulations for a review of a decision made under s.56(1) and all that has been decided by His Honour on this point is that the regulations so far made do not effect the intent of the legislature. There is no particular difficulty in enacting new regulations which would bring the estoppel to an end. In these circumstances my view is that the judgment of the primary Judge on this issue is one which until the regulations have been amended in relevant respects, binds the parties to it in respect of any further attempted "retirement" of the respondent. I see no reason why, as in Driclad Pty Ltd v. Federal Commissioner of Taxation (supra), an appeal which seeks to limit the effect of the order of the primary Judge in a distinct and separate respect is not competent, particularly where the method of limitation sought is by the making of declarations which it is contended are more appropriate. The primary Judge, of course, had power to make an order "declaring the rights of the parties in respect of any matter to which the decision relates" (Administrative Decisions (Judicial Review) Act 1977, s.16(1)(c)).
Accordingly, I consider that the appeal is competent on the first basis relied on by the appellants.
I also consider that the appeal is competent on the second basis, namely the desire of the appellants to obtain an order that the matter be remitted to the Commission for reconsideration.
Under s.16(1) of the Administrative Decisions (Judicial Review) Act the Court may make "all or any" of a number of specified types of order including (ss.16(1)(a) and 16(1)(b)):-

"(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit."

It was contended for the respondent that an order might not be made under s.16(1)(b) if the decision had been quashed as invalid on the ground that a breach of the rules of natural justice had occurred in connection with the making of the decision. I am unable to accept this contention. The Act contemplates specifically that an "order of review" may be made on such a ground (s.5(1)(a)) and there is no reason to exdlude such a case from the classes of case where an order may be made under both ss.16(1)(a) and 16(1)(b). Under the general law a failure to accord natural justice in the first instance may be cured by voluntarily according a full and fair hearing subsequently (Twist v. Randwick Municipal Council (1976) 136 CLR 106 at 116-117) and it is by no means clear to me why an order directing that a fresh hearing take place before the relevant tribunal might not be made in appropriately constituted proceedings. Indeed the High Court appears to have adopted such a course in Kioa v. West (1985) 60 ALJR 113. An important factor in deciding whether such an order should be made would be whether it would be futile to do so if the Commission could not in any event exercise a power under s.56(1) because the power so to do could not be exercised, i.e. if the first basis relied on by the primary Judge remained correct.
For these reasons I am of the opinion that the appeal is competent. I turn then to the substance of it.
I have referred earlier to the considerations which led His Honour to the view that the power conferred by s.56(1) could not be exercised with the Regulations in their present state. Central to those considerations was the view that the terms of reg. 35 delimited the powers of the Review Tribunal on the hearing of a review, and that is a conclusion with which, with respect, I am unable to agree.
S.56(2) requires that regulations "make provision for and in relation to" the review of the Commission's decision. The regulations in fact provide for the establishment of Tribunals to carry out such reviews and reg. 34(1) requires the Review Tribunal to carry out a "full review" of the impugned decision of the Commission. It seems to me that by reg. 34(1) the regulations have conferred on the Review Tribunal all the functions and powers comprehended by the term "review" in s.56(2). See s.46(a) of the Acts Interpretation Act 1901. The use of the adjective "full" emphasises, in my view, that that is the case.
It is then necessary to consider whether the presence of reg. 35 alters that conclusion and has the consequence that if the Review Tribunal's view is favourable to the employee, or former employee, the only course which it can take is to make a recommendation to, and give advice to, the Commission in the manner contemplated by reg. 35(1).
In my view reg. 35 does not have that consequence. The opening words of reg. 35(1) show that the regulation applies only where the Review Tribunal "is of the opinion that any action taken under section ...56 of the Act should receive further consideration by the Commission". It may well be that the Review Tribunal is of the view that the matter should be dealt with by the Review Tribunal itself. Reg. 35 seems to me to do no more than provide for one of the possible results which may flow from the "full review" contemplated by reg. 34(1).
In these circumstances I consider that the regulations do make provision for the "review" contemplated by s.56(1) and that in consequence s.56(1) is capable of operation.
I would overrule the objection to competency of the appeal, allow the appeal to the extent of varying the declaration made by the primary Judge by adding to it the words "by reason of the failure of the Commission and the Review Tribunal to observe the requirements of natural justice in respect of the making of such decisions." In the light of the findings by the primary Judge, I would not make an order remitting the matter to the Commission. It is a matter for it whether it decides to seek to invoke again the procedure of s.56(1).

[1986] FCA 299

30 JULY 1986