Barnes v Australian Telecommunications Commission
[1989] FCA 55
•07 MARCH 1989
Re: ROBERT WALTER BARNES
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION; DOUGLAS W. SMITH;
ALLAN MUIR AND PETER REILLY
No. G158 of 1987
FED No. 55
Administrative Law - Industrial Law
25 FCR 283
27 IR 77
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Administrative Law - judicial review - decision of Disciplinary Appeals Board - dismissal of security officer on grounds of misconduct - natural justice - whether composite hearing on guilt and penalty in breach of natural justice.
Administrative Law - natural justice - penalty - Board receiving adverse report on availability of other positions and the officer's suitability for them - Board considering report after completing its proceedings - whether failure to hear officer on this aspect a breach of natural justice.
Industrial Law - employment under the Telecommunications Act (1975) (Cth.) - misconduct of officers - procedure of the Disciplinary Appeals Board established under that Act.
Administrative Decisions (Judicial Review) Act 1977 (Cth.), ss. 5, 16
Telecommunications Act ss. 57(2), 58(1)(d), 58(11), 58(15), 62(5), 62(6), 63.
Telecommunications Regulations Regulations 19 and 24.
HEARING
BRISBANE
#DATE 7:3:1989
ORDER
The decision of the Disciplinary Appeal Board be quashed with effect from the date of the decision of the Board.
The matter be remitted to a Disciplinary Appeal Board constituted with different members thereof.
The first respondent pay the applicant's costs of and incidental to these proceedings, to be taxed, if not agreed.
There be no order as to the reserved costs of either party.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an application for an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).
The applicant, Mr. Barnes, had been charged with six charges under s.58(1)(d) of the Telecommunications Act 1975 (the Act), and the charges had been dealt with as called for by the Act. He had been found guilty of each of those charges and dismissed from his employment. He appealed to a Disciplinary Appeal Board established under s.63 of the Act, which board set aside the pecuniary penalties in relation to two of the charges, and in relation to the remaining four charges, dismissed the appeals.
It is from that decision of the Disciplinary Appeal Board that this application is brought. The second, third and fourth respondents constituted the Disciplinary Appeal Board. The third respondent did not appear, and the position of the second and fourth respondents, through their counsel, was to abide by the order of the court.
The applicant was employed as a security officer or watchman by the Australian Telecommunications Commission (the Commission). The applicant had held the position of Security Assistant with the Commission since 2 May 1978. He had from March 1980 until April 1983 performed duties in respect of each of the shifts at a major installation of the Commission at Mount Gravatt in Brisbane. He had again worked at the Mt. Gravatt Radio Transmitter Centre in August 1985 on a roster basis up until May 1986, at which time the offences the subject of this application occurred.
It appears that his transfer from the Mount Gravatt Radio Transmitter from the commencement of duty on 5 April 1983 was as a consequence of events which had happened in late March of that year. At that time he was admonished by the State Security Officer with regard to three matters, namely: his behaviour at Mt. Gravatt Radio Terminal on 26.3.83; his failures to report to the Shift Leader as directed at 3 a.m., 4 a.m. and 5 a.m. on the following day; andhis standard of dress when interviewed by two of his superiors on 28 March 1983.
A minute of 5 April 1983 notes:-
"Barnes, by consent, was transferred from Mt Gravatt Radio Terminal as from commencement of duty on 5.4.83. It would appear that he has been under some strain due to his failure to allocate portions of his daytime hours to sleeping and gives the impression of being very nervous. There would be some doubt that what was said to him penetrated. From discussion, it would likewise appear that he has 'personality clashes' over trivial matters with both his fellow Security Assistants and certain members of the Technical Staff of the Radio Terminal.
It was agreed that he would remain on the 6.05am to 2.00pm shift on the rear door of C.A.E. for some 3 months when a further assessment will be made. This shift is basic Monday to Friday (except Public Holidays) but attracts a shift penalty rate."
The six charges of having failed to fulfil his duty as an officer arose out of events which all occurred on the weekend of 24-25 May 1986 and were preferred against Mr. Barnes on 9 July 1986 by the then State Security Officer. The first two charges were:-
"Charge 1
'On Saturday, 24 May 1986, at approximately 3.00 a.m., while on duty at the Mt Gravatt Radio Transmitter, contrary to the requirements of his duties, he failed to contact his officer-in-charge by telephone, his officer-in-charge being the Security Assistant Grade 3 (Shift Leader) on duty at the Edison Telephone Exchange at that time on that date.'
Charge 2
'Contrary to the requirements of his duties, on Saturday, 24 May 1986, between the hours of approximately 3.00 a.m. and approximately 3.17 a.m., the Appellant was absent from his position of duty at the Mt Gravatt Radio Transmitter without the express permission of his officer-in-charge or any other person employed by the Commission and having the authority to give such permission.'"
In respect of each of these charges the authorised officer determined that the appellant be transferred and his salary be reduced.
The four other charges were:-
"Charge 3
'On Sunday, 25 May 1986, while rostered on duty at the Mt Gravatt Radio Transmitter, the Appellant availed of a meal break between the hours of approximately 1.57 a.m. and 2.33 a.m. without the permission of his officer-in-charge and contrary to an instruction given him by that officer, one Albert Athol Kindelan, acting Security Assistant Grade 3 (Shift Leader).'
Charge 4
'Contrary to the requirements of his duties,, Sunday, 25 May 1986, between the hours of approximately 1.57 a.m. and 2.33 a.m., the Appellant was absent from his place of duty at the Mt Gravatt Radio Transmitter without the express permission of his officer-in-charge or any other person employed by the Commission having the authority to give such permission.' Charge 5
'Contrary to an instruction given him on 25 May 1986 by Maurice Henry Beard, Security Assistant Grade 3 (Shift Leader), Security and Investigation Branch, an officer authorised to give such a direction, the Appellant did not report for duty at the Edison Telephone Exchange at 6.09 a.m. on 26 May 1986.'
Charge 6
'On Monday, 26 May 1986, between the hours of 6.09 a.m. and approximately 1.30 p.m., the Appellant was absent from his place of duty at the Edison Telephone Exchange without the express permission of his officer-in-charge or any other person employed by the Commission and having the authority to give such permission.'
In respect of these four charges, the authorised officer found the charges proved and determined in respect of each charge that Mr. Barnes be dismissed from the service of the Commission.
The Notice of Appeal under s.62 of the Act against the original decisions made on the six charges, in each case was on the grounds that "(1) I am innocent of the charge; and (2) the penalty is too severe."
In lengthy reasons for decision of some 100 pages, the Board, by a majority, found each of the six charges proved and decided that no penalty should be imposed in respect of the first two charges and that the decision of the delegate dismissing Mr. Barnes from the service of the Commission in respect of charges 3 - 6 inclusive should not be disturbed. It accordingly determined that the action taken by the delegate in respect of those charges be confirmed. The officer's nomineee on the Board found none of the charges proved.
The application for order of review raises two broad complaints. The first is that, at the hearing by the Disciplinary Appeal Board, evidence relating to proof of the charges and evidence relating to penalty were heard together and, as a consequence, Mr. Barnes was deprived of being heard on the specific courses of punishment being considered. It was submitted on his behalf that, having regard to the statutory framework and the statutory obligations of the Disciplinary Appeal Board, the question of whether the charges were proved ought to have been considered first, and then further submissions on the alternative penalties should have been entertained if the charges had been made out. The submission necessarily has to have regard to the significance of s.62(6) of the Telecommunications Act 1975 in the scheme of things. This is a matter to which consideration will be given later.
The second broad area of complaint is that there was a denial of natural justice to the applicant (vide s.5(1)(a) of the ADJR Act) in the way the Board reached its findings as to penalty.
The proceedings before the Disciplinary Appeal Board occurred on 23, 24, 25 March and 2, 3 April 1987. After those proceedings had ended, the Chairman of the Disciplinary Appeal Board requested Mr. Michael Kennedy, who had been secretary to the Board, to compile for use by the members of the Board a list of positions for which the applicant was qualified and which had a lower classification than formerly held by him. Mr. Kennedy was told by the Chairman, Mr. Douglas Smith, that he proposed conferring with the other members of the Board on about 4 May 1987.
On that day Mr. Kennedy supplied to the Board a list headed "NOMINALLY VACANT POSITIONS LOWER THAN ASSISTANT GRADE 2 ($14741-15396) AS AT 4.5.87." In the document were various comments about each of the positions and, on a further page headed "COMMENTS", Mr. Kennedy said:-
"1. The three areas marked with an * are the only available vacancies.
2. The CA positions in Human Resources would be considered unsuitable as the positions are positions of trust which involve handling mail and Telecom files in an area with access to confidential material.
3. The Gardener and Labourer positions would also be considered unsuitable because they involve working alone with minimal supervision."
Implicit in the comments is the conclusion or opinion of Mr. Kennedy that Mr. Barnes was unsuitable for positions requiring trust or positions where he would work alone with minimal supervision. There is affidavit material disputing the factual correctness of the information contained in Mr. Kennedy's list and comments.
On this aspect of the matter, the majority of the Board said:-
"Sometime after the proceedings before the Board had ended, the members of the Board met again for a lengthy discussion concerning the penalty which it would be appropriate to impose. At that time, pursuant to the provisions of Regulation 19 of the Telecommunications Regulations, the Board had before it a list of vacant positions for which the Appellant might be said to be qualified. There were remarkably few and it was clear that a contraction of employment in some areas of the Commission's operations was taking place. During that discussion, the Board canvassed the extent of the obligation, if any, resting on the respondent Commission to find a place of some kind for the Appellant. A majority of the Board (the Chairman and the Commission Nominees) were of the view that the Commission was under no such obligation. Whilst conscious of the profound effect such a decision will have for the Appellant and the hardship it is likely to entail for him, they were of the view that the decision of the Delegate should not be disturbed. In this regard, the observations of Gray J. in Gregory v. Philip Morris Pty. Limited (1987/8) 77 ALR 79 at 100 that no employee is 'immune from dismissal' and that the causes of that dismissal must always be relevant to the question whether the dismissal might be said to be unfair, harsh or unreasonable are pertinent."
It was submitted by the applicant that the failure by the Board to allow submissions to be put by him relating to the list, its correctness and significance, constituted in all the circumstances, a denial of natural justice. Counsel for the applicant submitted it is not contested that the Board has a right to obtain such a list, but that once the list was obtained the applicant had a right to put submissions before the Board before a final decision was made. This is more strongly the case having regard to the 'COMMENTS' of Mr. Kennedy accompanying the list.
It was also said that the Board had formed the view that a contraction of employment in some areas of the Commission's operations was taking place and that the Commission had no obligation to find a place of some kind for Mr. Barnes. It was said that the Commission did have such an obligation if the Board found that a transfer or demotion under s.58(9) was a suitable penalty and that, in the approach that it took to this aspect of the matter, had confused its powers with the obligations of the Commission if the appropriate orders were made allowing the appeal and ordering that Mr. Barnes be demoted.
Since no issue has been taken with the finding by the Board that the charges were proved, it is appropriate to set out some of the factual findings of the Board.
The Board found that at all relevant times the Mount Gravatt Radio Transmitter was considered by the Commission to be the single most important telecommunications facility in the State and that, as a consequence, officers of the Security and Investigation Branch were assigned to duty there on a 24 hours, 7 days a week basis. The Assistant on duty at that facility was required throughout his shift to call his shift leader at the Edison Telephone Exchange at hourly intervals.
Those regular calls served two purposes: they were an integral part of the procedures designed to ensure the security of the installation and as a check upon the personal safety and welfare of the Assistant on duty at any time.
The Board found that Mr. Barnes was thoroughly familiar with and experienced in all aspects of the duties and procedures pertaining to his post at Mount Gravatt. It found that Mr. Barnes did not enjoy a good relationship with two of his superior officers, both of whom regarded him as a pedant and a persistent complainer. Security Assistants at Mount Gravatt were paid an allowance in lieu of a meal break during their shift at one and a half times the ordinary rate. The Board found that that arrangement had contractual force. It found that "...throughout the entire period of his service at Mt. Gravatt, the Appellant had accepted those payments and understood perfectly well why they were paid to him."
Mr. Barnes had, during his absence on the relevant weekend, visited a close friend living in the vicinity of the Mt. Gravatt facility, who was suffering a very serious illness. The Board found in respect of this aspect of the matter:-
"The Board accepts the evidence given by the Appellant concerning the gravity of the disease suffered by his friend who lives in the vicinity of the Mt Gravatt Station. It also accepts that one of the treatments commonly used in an attempt to arrest the progress of that disease can have the most distressing consequences for both sufferer, family and friends. The Appellant's evidence in that regard was not seriously challenged by the respondent Commission. It is, however, perfectly clear that there was no pressing need for the Appellant to visit her on the night in question. He conceded that he had never previously made such a visit whilst on duty at Mt Gravatt. And he also conceded that his insistence on visiting his friend owed something to his desire 'to get up Mr. Kindelan's nose.' Finally, he made a further concession. He regretted his actions in that regard and, with the benefit of hindsight, knew that he should not have reacted in that way."
The provisions relating to "dismissals and punishments" in the Act are to be found in Part V, Division 6, ss. 57-64. Sections 57(2) and 58(1)(a) relevantly provide:-
"57.(2) In this Division, a reference to misconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer.
...
58.(1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if - ...
(d) he is guilty of improper conduct as an officer;
..."
Section 58(3) provides for the charging of an officer, and s.58(5) requires there to be an inquiry into the charge if an officer is charged with misconduct. Section 58(9) specifies what may be done when the officer who held an inquiry is satisfied that the officer charged has failed to fulfil his duty as an officer and, amongst other powers, permits him to recommend to the Commission in writing that the officer be transferred, either to a position of the same classification and salary or to a position with a lower classification and salary, or to recommend in writing that the Commission dismiss the officer from the Service. Section 58(11) relevantly provides:
"58.(11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section
(10) counsel the officer, or, if it considers that other action is necessary -
(a) ...
(b) decide -
(i) to give effect to the recommendation; ..."
A decision made by the Commission pursuant to that section does not take effect if the officer appeals against the decision unless a Disciplinary Appeal Board confirms the decision (s.58(15)).
An officer has, by s.62 of the Act, a right of appeal against a direction or decision made or given under s.58 of the Act. Section 62(5) provides:-
"62.(5) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the direction or decision against which the appeal is made."
Section 62(6) provides:-
"62.(6) Where an officer appeals under sub-section (1) against a direction or decision on the ground that the action to be taken in accordance with that direction or decision is excessively severe, evidence may be given on the hearing of the appeal -
(a) if the officer was, under section 59, suspended without salary prior to the giving of that direction or the making of that decision - of any loss of earnings arising from that suspension;
(b) if the officer is to be transferred to another position - of the expenses that will be incurred by the officer in connexion with that transfer; and
(c) of matters relating to the previous employment history and general character of the appellant."
Regulation 19 of the Telecommunications Regulations provides:-
"Subject to these Regulations, in the hearing of a disciplinary appeal by a Disciplinary Appeal Board -
(a) the Board may inform itself in such manner as it thinks fit;
(b) the procedure to be followed shall be as determined by the Board;
(c) The Board is not bound by the rules of evidence; and
(d) the Board shall proceed without regard to legal forms or solemnities."
Regulation 24 of the Telecommunications Regulations provides:-
"(1) Copies of all documents intended to be used at the hearing of a disciplinary appeal shall, where practicable, be furnished to the appellant by the Commission not later than 7 days before the date fixed for the commencement of the hearing.
(2) Where a copy of a document intended to be used at the hearing of a disciplinary appeal is not furnished to the appellant in accordance with sub-regulation (1), he is entitled to inspect that document."
An appellant to a Disciplinary Appeal Board is entitled to natural justice, as Regulation 24 indicates. It was common ground before the Board that the proceedings before it involved a hearing de novo of the charges against Mr. Barnes.
As Everett J. noted in Munnings v. Smith (1986) 20 IR 264 at 272:-
"Section 62(3) of the Act empowers a Board to take evidence. Section 62(4) is the basis for regulations to be made prescribing the manner in which the hearing of appeals shall be conducted, including provision for, among other things, the summoning of witnesses and the production of documents. Regulation 19 of the Telecommunications Regulations gives effect in wide terms to s.62(4). The consequence is that the evidence and material properly received by a Disciplinary Appeal Board may be very different from that considered by the officer who conducted the initial inquiry. The clear intention of Parliament was to confer a right of appeal which was not trammelled by the scope of the initial inquiry. The ambit of such right may be considerably increased in cases in which the appeal raises the question of the severity of the penalty (s.62(6)(c) of the Act)."
Composite Hearing
The proceedings before the Disciplinary Appeal Board were not conducted on the basis of an inquiry first into whether the charges had been established and then, and only then, as to what was the appropriate penalty. Material was led on both aspects in a single proceeding.
The solicitor acting for Mr. Barnes before the Disciplinary Appeal Board said:-
"The remaining matter which I wish to address you on is the matter of penalty and that's really on the basis that the tribunal finds against me on all the other points. Unfortunately the way these cases are conducted, unlike say a criminal case, you have to intertwine it all together and I suppose by way of the wide discretion given you under the Act to take in evidence it's almost inevitable that it has to be dealt with in that way."
On the question of penalty or severity, the solicitor for the Commission had submitted to the Board:-
"We've also heard evidence that there are no positions available for either transfer or promotion but, in any event, as I've mentioned, the question of transfer or the possibility of transfer or promotion, was considered but specifically rejected, particularly considering the charges relating to absenting himself on the Sunday night.
The evidence shows that Mr. Bridgland, Mr. Butters, Mr. Symonds, all made consistent recommendations that dismissal was the only appropriate penalty and, of course, the recommendation by Mr. Bridgland was ultimately accepted by the state manager. In my submission, there has not been any evidence adduced to this board to the contrary to show that dismissal in particular was not the appropriate penalty."
In my opinion, the fact that the Board did not proceed first to consider the question of whether the charges had been made out and then move on to consider the question of penalty, but received submissions from both parties concerning penalty at the same time as submissions concerning whether the charges had been made out or not, does not involve a denial of natural justice nor constitute, in the circumstances of this case, an appellable error.
It seems to me clearly desirable that, where there is an inquiry directed both to whether an offence has been made out and, if so, what is the appropriate penalty or penalties, to proceed, as a court ordinarily would, to determine the question of liability before addressing the question of penalty. However, failing to proceed in that fashion is not a breach of the rules of natural justice, if in truth a person has been given an opportunity to address on penalty, should the Board come to a conclusion adverse to him on the question of guilt.
In Freedman v. Petty (1981) VR 1001 at 1030, Marks J. said:-
"It was contended for the plaintiff that the Board denied natural justice to the plaintiff in failing to give him an opportunity to be heard on the question of penalty. In Hall v. New South Wales Trotting Club Limited, (1977) 1 NSWLR 378 the majority held that deprivation of such an opportunity rendered a disqualification by stewards invalid and void: see also Calvin v. Carr, (1977) 2 NSWLR 308, at p 337; Fisher v. Kaine (1878), 11 Ch D 353, at p 363. In Barr v. Victorian Football Association (unreported, 5 June 1979) Jenkinson, J. failed to be persuaded that the circumstances of that case dictated a similar result.
Consistent with what I have observed elsewhere I doubt if the rules of natural justice compel automatic vitiation of a penalty imposed without separate hearing on the question. Circumstances in particular cases such as those with which Jenkinson, J. was concerned may show that in effect fair cognizance of the relevant matters had been taken at an earlier point than the actual pronouncement of decision and penalty. Further, circumstances in a particular case may show that the offender expressly or impliedly indicated he did not wish to be so heard."
In Hall v. New South Wales Trotting Club Ltd. (1977) 1 NSWLR 378, Hutley J.A. said at 382:-
"The duty of a domestic tribunal to hear the accused is not, in my opinion, fully performed by hearing him on part of the case. Once there is a finding of guilt, the stewards must consider the penalty. The penalties which may be inflicted are set out in r. 10(i) and may be severe. The person found guilty cannot really address until he knows of what he has been found guilty. I am prepared to assume in this case that the steweards found Hall guilty of all the various acts of misconduct which had been referred to in the court of the inquiry, and that he understood that. This did not dispense with the duty of the stewards to hear him on the question of penalty. There was much that could have been said on that question....It is clear from the record that they did not seem to recognize any duty to provide him with the opportunity."
He continued:-
"I assume that a person entitled to a hearing can agree to dispense with it..."
But he concluded that Hall had not waived his right to be heard on penalty. At 383 he said:-
"It is difficult to see how, when liability is in issue, a court could ever anticipate the result if a proper hearing had been given, but where liability is conceded or has been found, there may be cases where a court could say that no advocacy could produce a lesser penalty. This may be the justification for the decision of Pennycuick V.C. in Glynn v. Keele University (1971) 1 WLR 487;
(1971) 2 All ER 89."
Samuels J.A., at 391, agreed with the opinion of Hutley J.A. on this aspect of the case.
In McRitchie v. Greyhound Racing Control Board (noted in The Australian Industrial Law Review of 24 November 1982, Case 533), Powell J., in the context of an alleged failure to allow the opportunity to address on penalty, said:-
"Since...the plaintiff was offered an opportunity to address on the question of penalty if a finding adverse to him were made, this attack cannot be sustained unless it be the law that such an opportunity must be awarded after the making of any adverse finding and before the imposition of any penalty. While, in the context provided by trials in the Courts, such a procedure is the norm, I do not consider that the rules of natural justice require that there must always be a separate hearing on penalty; nor, although the steward's failure to receive submissions on the question of penalty was the basis for the decision of the majority in that case, I do not consider that the decision of the Court of Appeal in Hall v. NSW Trotting Club Limited lays down any such rigid rule - my view appears to be shared by Marks J. (Freedman v. Petty (1981) VR 1001 at p 1030) and by Jenkinson J. (Barr v. Victorian Football Association, unreported, 5/6/79) of the Supreme Court of Victoria."
The requirement of natural justice in relation to penalty
That the Disciplinary Board viewed the matter seriously
is not to be doubted. Towards the end of its reasons it said:-
"The Appellant had demonstrated all too clearly that he could not be trusted to see out his shift at Mt. Gravatt."
It said:-
"It also finds that the penalties imposed in respect of the charges numbered 3 to 6 inclusive, namely, in each case, dismissal from the service of the Commission, had not been excessively severe."
It later commented:-
"The evidence made it absolutely clear that the Commission no longer had confidence that the Appellant could perform all duties which might normally be allotted to him. The fact that it acted with compassion in placing him somewhere until the outcome of his appeal had been determined in order to lessen the inevitable hardship and dislocation which loss of salary would entail should not later be held against the Commission."
Of the document prepared by Mr. Kennedy and the opinions of Mr. Kennedy as to the suitability or otherwise of Mr. Barnes to fill certain of those positions, Mrs. Maureen Parker, the Secretary of the Queensland Branch of the Australian Public Service Association, says that she first became aware of the documents after the Board had delivered its decision in August 1987. She says that the documents were never mentioned at any stage during the appeal hearing. She says:-
"...from my extensive experience in dealing with personnel matters with Telecom in Queensland I find difficulty in accepting that the information contained in the document entitled 'Nominally Vacant Positions Lower Than Clerical Grade (2) ($14,741 - $15,396) as at 4.5.87' was a complete and accurate statement as at that date of all of the positions that would have been vacant and suitable to be filled by Mr. Barnes. Telecom has an extremely high turnover of staff in classifications at or about this pay scale. On the basis of my understanding of personnel matters in Telecom I believe that numerous other positions could have been vacant on 4 May, 1987 and certainly would have become vacant between that time and the date of publication of the majority decision in the Disciplinary Appeals Board. If the document in question had been tabled by the First Defendant during the Disciplinary Appeals Board Hearing and thereby become available to Mr. Barnes and to my organisation it would have been possible to undertake investigations through Union Delegates and otherwise to establish whether the document was an exhaustive statement of the positions available within the range in question and to investigate the reasons given in the document for Mr. Barnes' alleged unsuitability. The organisation and Mr. Barnes would then have been in a position to instruct his solicitor on appropriate submissions as to the facts involved in addressing arguments to the Board on the relevance of the document and the weight that should be attached to it."
The Board, when considering what penalty to impose, sought information from Mr. Kennedy. The information supplied by Mr. Kennedy clearly had an important bearing on the conclusion reached by the Board. That material contained comments and opinion by Mr. Kennedy quite adverse to Mr. Barnes and indicated a situation of very limited availability of appropriate positions. That conclusion is strongly challenged by Mrs. Parker in her affidavit. This further material was not disclosed to Mr. Barnes, who consequently had no opportunity to answer it, and was directly relevant to the question of penalty.
In Review of Administrative Action , Aronson and Franklin, Law Book Company 1987, the learned authors say at p 186:-
"Unlike proceedings in a court of law, decision-makers may, and should, draw on their own expertise and research rather than rely exclusively on the evidence and arguments presented to them. In order to reconcile this function with the principle that participants in a hearing be given a fair opportunity to comment on the relevant issues and controvert any adverse material, a distinction is drawn between on the one hand, 'the special knowledge of the tribunal
(which) cannot be separated from it and is part of the equipment of the tribunal' and, on the other hand, 'evidence of matters as to which it has informed itself or of documents under its control', citing R. v. Milk Board; Ex parte Tomkins (1944) VLR 187 at 197, 193 per Lowe J.. Material in the latter category - that is to say, factual material acquired for the purpose of, or in the course of, the particular proceedings - should be disclosed. It is well established that decision-makers cannot use undisclosed reports, citing R. v. Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane) Ltd. (1941) 1 KB 53; R. v. Metropolitan Fair Rents Board; Ex parte Canestra (1961) VR 89; Kanda v. Government of Malaya (1962) AC 322; Denton v. Auckland City
(1969) NZLR 256; James Aviation Ltd. v. Air Services Licensing Appeal Authority (1979) 1 NZLR 481; Ian Croad Autos Ltd. v. Retail Motor Trade Association Inc. (1979) 2 NZLR 80; Lambourne v. Commercial and Private Agents Board
(1980) 23 SASR 475. Disclosure should also be made where they undertake their own investigations or research, citing R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456; Slapjums v. City of Knox (No. 2) (1978) 38 LGRA 98; R. v. Criminal Injuries Compensation Board; Ex parte Ince (1973) 1 WLR 1334 at 1344-1345; R. v. Immigration Appeal Tribunal; Ex parte Patel The Times, 15 February 1984; Re Egglestone and Mousseau and Advisory Review Board (1983) 150 DLR (3d) 86."
In my opinion, failure to give to Mr. Barnes the opportunity to answer this material or deal with it constitutes a denial of natural justice to him.
Mason J., as he then was, in Kioa v. West (1985) 159 CLR 550 at 582, stated the principle:-
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: (Twist v. Randwick Municipal Council (1976) 136 CLR 106 at p 109; Salemi (No.2) (1977) 137 CLR 396 at p 419; Ratu (1977) 137 CLR 461 at p 476; Heatley v. Tasmanian Racing and Gaming Commission
(1977) 137 CLR 487 at pp 498-499; F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342 at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."
His Honour said at p 587:-
"...if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re H.K. (An Infant) (1967) 2 QB 617."
In Colpitts v. Australian Telecommunications Commission (1985-6) 9 FCR 52, Burchett J. was concerned with a decision by which Mr. Colpitts was retired from the Australian Telecommunications Commission, pursuant to s.56 of the Act. The Review Tribunal in that case was found by his Honour to have denied Mr. Colpitts natural justice by receiving material adverse to his case without giving him any opportunity to make submissions in respect of it. Burchett J. said at p 70:-
"In Daganayasi v. Minister of Immigration (1980) 2 NZLR 130 at 143 Cooke J. said: 'The appellant should have a fair opportunity of correcting or contradicting any relevant statement prejudicial to his or her view.' (See also De Verteuil v. Knaggs (1918) AC 557 at 560-561; Ansell v. Wells
(1982) 63 FLR 127 at 151; Dixon v. Commonwealth
(1981) 55 FLR 34 at 40-41 and 48; Re Gosling
(1943) 43 SR (NSW) 313 at 317.) In R. v. Gaming Board for Great Britain; Ex p Benaim & Khaida (1970) 2 QB 417 at 430, Lord Denning, with the agreement of Lord Wilberforce and Phillimore L.J., contrasted what is required in considering the issue of a certificate for a gaming house with the higher obligation in a case such as the present: 'But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin (1964) AC 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180.' In Re Pergamon Press Ltd. (1971) 1 Ch 388 at 400 Lord Denning said:
'For I take it to be axiomatic that the inspectors must not use the evidence of a witness so as to make it the basis of an adverse finding unless they give the party affected sufficient information to enable him to deal with it.'
In Wiseman v. Borneman (1971) AC 297 a right to see and reply to a counter-statement lodged in answer to a claim was denied only by reason of the special nature of the proceedings which led to no final determination; see per Lord Reid at 308. In Kanda v. Government of Malaya (1962) AC 322 at 337, after reiterating that 'whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other', Lord Denning said: 'The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so.' In the present case, I have already indicated my view that there was actual prejudice in what occurred. But that the decision would be vitiated, even without proof of any actual prejudice, is shown by Kanda's case and also by General Medical Council v. Spackman (1943) AC 627 at 644-645, per Lord Wright; Hamblin v. Duffy
(No.2) (1981) 55 FLR 228 at 241-242; Ridge v. Baldwin (supra) at 68; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945 at 956; and Kioa's case (supra) especially per Wilson J. and Deane J.
There was undoubtedly, upon the face of the material before the Tribunal, much to be said against Mr. Colpitts. But it would be a complete misunderstanding of the principles of natural justice to regard that fact as in any way weakening the case for their application. The principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless: see Kioa's case, per Deane J. In the present case, error of law and denial of natural justice left areas of available or possible defence unexplored, either by the delegate, or by the Review Tribunal. Furthermore, the duty to accord natural justice is a duty owed, not merely to a party, but to the integrity of the institution of administration or review. This is the essence of the citation which Dixon C.J. and Webb J. made in Commissioner of Police v. Tanos
(1958) 98 CLR 383 at 395 from Seneca's Medea: though one who has judged without hearing the other side may have reached a just conclusion, he has certainly not been just. It is because the principle has been universally recognised as being at the core of a judgment worthy of respect that it is appropriate to call it a principle of natural justice: see the discussion in de Smith, Judicial Review of Administrative Action (4th ed.), 156-158: 'The law's first duty', Goethe asserted in his Faust Pt.2, is 'to hear the accused'.
I have quoted at length from the observations of Burchett J. in Colpitts because his remarks are particularly apposite in the present matter.
I am conscious of the serious nature of the conduct of Mr. Barnes reflected in the six charges dealing with the events of the weekend of 24-25 May 1986. However, the decision of the Board in respect of its hearing of the appeal concerning those charges is seriously tainted by the denial to Mr. Barnes of the right to be heard. It was submitted on the Commission's behalf that, having regard to the relative importance of the impugned conduct in the decision-making process, the Court should, as a matter of discretion under s.16 of the ADJR Act, decline to interfere. The departure from the requirements of natural justice was, in my view, so serious, and on such an important aspect of the Board's function, that it is by no means certain that the same conclusion would necessarily follow if Mr. Barnes had been given the opportunity of being heard on the matters in Mr. Kennedy's material, and, as I indicated above, there are wider considerations involved.
I set aside the decision of the Board. I will hear the parties as to the form of order I should make. The Commission should pay Mr. Barnes's costs, to be taxed.
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