Beck, Kaye Margaret v Thornett, Frederick Edward

[1984] FCA 262

Re: KAYE MARGARET BECK
And: FREDERICK EDWARD THORNETT Acting Deputy Commissioner of the Department of
Veterans' Affairs and PETER STEPHEN WILENSKI, ROBERT JOHN YOUNG and JOHN
VINCENT MONAGHAN as the Public Service Board
No. TG7 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Everett J.

CATCHWORDS

Administrative law - judicial review - recommendation for the dismissal of officer of Australian Public Service - whether rules of natural justice observed in inquiry under Public Service Act 1922 - discretion to refuse application - whether adequate provision exists to seek review by "another tribunal, authority or person" - Administrative Decisions (Judicial Review) Act - Public Service Act - Public Service Regulations - application refused.

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 10

Public Service Act 1922, Part III, Division 6

Public Service Regulations, Part IX

KELLY v. COATS AND OTHERS, 35 A.L.R. 93

KLEIN v. DOMUS PTY LTD, (1963) 109 C.L.R. 467

GRAHAM v. COMMISSIONER FOR SUPERANNUATION (1981) 3 A.L.N. (52) N86

COMMISSIONER OF POLICE v. GORDON (1981) 1 N.S.W.L.R. 675

HEARING

CANBERRA

#DATE 31:8:1984

ORDER

The application be refused.

Liberty is reserved to each party to apply generally.

JUDGE1

The question for decision at this stage in these proceedings arises following an order by Smithers J. on 23 July 1984, with the consent of counsel for all parties, that a preliminary point should be argued before the determination of the central issues involved in an application, pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 (the Act), for an order to review a decision (in fact, there were two separate but related decisions) of the first-named respondent following an inquiry under Division 6 of the Public Service Act 1922 (Cth) (the 1922 Act).

The original application invoked directly the jurisdiction of the Court to make an order of review in respect of the decisions on the ground "that a breach of the rules of natural justice occurred in connexion with the making of the decision" (s.5(1)(a) of the Act). It was in the following form:

"Application to:

1. Review the decision of the Respondent Frederick Edward Thornett made on the 11th day of July, 1984 whereby the First-named Respondent found proved two charges that the Applicant had failed to fulfil her duty as an officer within the meaning of Section 56(d) of the Public Service Act 1922.

2. To restrain the Second-named Respondent from acting upon the recommendations of the First-named Respondent that action be taken to dismiss the Applicant from the Australian Public Service until determination of this Application by this Honourable Court.

The Applicant is aggrieved by the decision made by the First-named Respondent because :

(a) A breach or breaches of the rules of natural justice occurred in connection with the making of the decision dated the 11th day of July, 1984.

(b) That procedures that were required by law to be observed in connection with the making of the said decisions were not observed.

(c) That the making of the decisions were improper exercises of the power conferred by the enactment in pursuance of which it was purported to be made (sic).

(d) The decisions involved an error of law.

(e) That there was no evidence or other material to justify the making of the decisions.

(f) That the decisions were otherwise contrary to law.

The Applicant claims:

1. A declaration that the decision or decisions of the First-named Respondent are void and invalid.

2. An order suspending the operation of the decisions until further order.

3. . . . . . . .

4. . . . . . . . "

(The description of the second-named respondent originally was "the Public Service Board". It was altered to the existing form by amendment during the hearing).

In response to a request by the Australian Government Solicitor, the solicitors for the applicant furnished the following further particulars of the application :

"(a)The following decisions made by the First-named Respondent are the decisions referred to in paragraph

(b) of the Applicant's application dated the 18th day of July, 1984.

(i) The decision by the First-named Respondent to refuse to permit cross-examination of persons purporting to give evidence against the Applicant.

(ii) The decision by the First-named Respondent not to hear oral evidence from persons purporting to give evidence or make complaints against the Applicant.

(iii) The decision by the First-named Respondent to proceed to decide the matter on the basis of written statements that were untested.

(iv) The decision by the First-named Respondent not to advise the Applicant or her solicitors of the standard of proof that he would apply in determining the matter.

(v) The decision by the First-named Respondent to refuse to answer the several matters of enquiry contained in the letter from the Applicant's solicitors to the First-named

Respondent and dated the 19th day of June, 1984. This letter is exhibit "A" to the affidavit of David John Gunson sworn on the 17th day of July, 1984 and filed in these proceedings.

(vi) The decision by the First-named Respondent not to answer questions of him by the Applicant's Counsel Mr P.W.E. Smith at the hearing that took place before the First-named Respondent on the 19th day of June, 1984.

(vii) The decision by the First-named Respondent to interview additional witnesses after the completion of the hearing before him on the 19th June, 1984.

(viii) The decision by the First-named Respondent to refuse to permit the Applicant or her Counsel to cross-examine witnesses interviewed by the First-named Respondent after the conclusion of the hearing on the 19th day of June, 1984.

(ix) The decision by the First-named Respondent to refuse to answer the several matters of enquiry contained in the letter from the Applicant's solicitors to the First-named

Respondent and dated the 21st day of June, 1984. This letter is exhibit "B" to the affidavit of David John Gunson sworn on the 17th day of July, 1984 and filed herein.

(x) The decision by the First-named Respondent to refuse to advise the Applicant of what use he would make of any written answers by her to the charges against her in reaching his decision.

(xi) The decision by the First-named Respondent not to proceed in accordance with the rules of natural justice.

(b) All the decisions made by the First-named Respondent and referred to in (a) above.

(c) All the matters referred to in paragraph (a) above (i) to

(xi) inclusive.

(d) To follow and act in accordance with the rules of natural justice.

(e) The improper exercise of the power was the failure or refusal by the First-named Respondent to act in accordance with the rules of natural justice.

(f) The error of law complained of by the Applicant is the refusal or failure by the First-named Respondent to conduct the proceedings in accordance with the rules of natural justice.

(g) The decision was contrary to law in that the proceedings were not conducted in accordance with the rules of natural justice. "

It is clear that the essential basis of the application, supported by the particulars provided, was the alleged breach of the rules of natural justice, although reference was made in general terms in the formal documents to some of the provisions of s.5(1) of the Act other than paragraph (a) thereof.

The provisions of the Act on which the argument for the respondents on the preliminary point was based are contained in s.10. So far as is relevant, they are :

"10. (1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision-

(a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

(b) . . . . . . .

(2) Notwithstanding sub-section (1) -

(a) . . . . . . .

(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason -

(i) . . . . . . .

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3) In this section, "review" includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. "

Counsel for the respondents submitted that "adequate provision" is made by the 1922 Act and regulations thereunder whereby the applicant may seek a review (see s.10(3) of the Act) of the decisions whereby she is aggrieved by a Disciplinary Appeal Board established under s.63E of the 1922 Act.

It is necessary to refer to the facts and circumstances which led to the application. They may be summarised in chronological order as follows:

1. The applicant is a nursing sister who, at the time she was suspended from duty on 7 May 1984, was the senior sister in charge of a ward at the Repatriation General Hospital, Hobart, (the hospital), where she had been employed since October 1969.

2. By letter dated 27 March 1984 to the applicant, an officer of the Department of Veterans' Affairs stated that he had received a certificate from the Medical Superintendent of the hospital to the effect that she was unfit for work for medical reasons. She was required to submit to an examination by a Commonwealth medical officer. She began sick leave on 20 March. The examination was carried out on 4 April.

3. The applicant received a letter dated 11 May from the Acting Superintendent of the hospital, part of which was :

" As you are aware, the Commonwealth Medical Officer has completed his investigation regarding your medical fitness for continued employment as a Senior Sister and has reported that there is no medical problem which would preclude you from resuming your normal duties.

However, there have been a number of serious allegations made by various Repatriation General staff members regarding your conduct and efficiency at work and it has become necessary for me to consider whether disciplinary action should be taken against you. "

4. The applicant was furnished with a large number of written statements by medical, nursing and other staff of the hospital containing allegations that she had failed to fulfil her duty as an officer under the 1922 Act, which is termed "misconduct" by a definition in s.55 of the 1922 Act. Three named patients were involved at that stage. Precise dates were stated. In addition, there was also then an allegation of "maladministration of RGH Ward 1 work activities between August 1982 and 20 March 1984", in respect of which some general particulars were provided.

5. By letter dated 15 May, the applicant replied to the letter dated 11 May. In an affidavit, she stated :

" I attempted in that letter to reply to the allegations that were made against me by the various persons whose statements had been forwarded to me. "

The concluding paragraph of the applicant's letter was :

" I hope this rather lengthy reply will assist you in reviewing and reversing your decision to suspend me from duty. I believe the decision to suspend me is both unjust and unfair. "

6. On 7 June a formal notice was issued that payment of salary to the applicant during her suspension ceased from 6 June.

7. Also on 7 June, two charges were made against the applicant under ss.55 and 56 of the 1922 Act. Each alleged that she had engaged in "improper conduct as an officer" (s.56(d) of the 1922 Act) in relation to a named patient. One was a female and the other a male. Particulars were furnished.

8. On 12 June the applicant made a written reply to the allegations.

9. Thereafter an inquiry into the charges was conducted by the first-named respondent pursuant to s.62 of the 1922 Act. The applicant had instructed a firm of solicitors to act for her generally.

10. Sub-sections 62(3) and (4) of the 1922 Act provide :

" (3) In an inquiry for the purposes of sub-section (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.

(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer. "

11. In each case the charge was found proved. The formal finding on one charge was thus expressed :

" Taking into consideration all of the evidence I am satisfied that the charge against you is proven and that you have failed to fulfil your duties as an officer within the meaning of Section 56(c) of the Act. I am also of the opinion that further action is necessary in respect of your failure to fulfil your duty as an officer.

As I am satisfied that you have failed to fulfil your duty as an officer I intend to soon decide what further action is necessary in accordance with the provisions of Section 61(6)

(sic) of the Public Service Act. "

On the other charge the formal finding was expressed in identical terms, except that the reference to the 1922 Act was to s.56 (d). The difference is not, having regard to all the statutory provisions, of any present relevance. It was not adverted to by counsel.

12. The final steps were taken on 11 July when the first-named respondent informed the applicant that in respect of each charge he had recommended to the Public Service Board in writing under s.62(6) (b) of the 1922 Act that action be taken to dismiss her from the Australian Public Service.

13. The application for an order of review was filed on 18 July. In an affidavit in support of it, the applicant said:

" At all times I have wished to be represented by counsel and to afford to my counsel the opportunity to cross-examine

my accusers. I also have wished to give evidence on oath as to what I say are the true facts surrounding the incidents of complaint."

In my opinion, the preliminary point can be, and, in the circumstances, should be, decided without reference to the merits of the application, on which I refrain from expressing any view. This course was taken with the consent of counsel and a formal order directing it was made. Nor is it necessary to canvass the nature of the inquiry into the charges (s.62 (1) of the 1922 Act) although ss.62(3) and (4) would, in any such consideration, be of fundamental relevance.

The short question is whether, under s.10(2) (b) (ii) of the Act, the Court's discretion should be invoked to refuse to grant the application for the reason that adequate provision of the kind expressed in the sub-paragraph exists by virtue of the powers of another "tribunal, authority or person".

It is, however, fair to the first-named respondent to observe that, before expressing his reasons for his findings, he set out the documents he had considered, and made references to telephone conversations with a number of persons. He stated his conclusions in each case and dealt specifically with each particular of alleged "misconduct", as defined. He also gave detailed reasons for his recommendations to the Public Service Board.

The question in issue requires, among other matters, a detailed consideration of the nature and extent of the applicant's rights of review under the 1922 Act of the recommendations for dismissal by the officer who conducted the inquiries. The relevant provisions contained in ss.63D and 63E of the 1922 Act, are:

(1) Section 63D :

" (1) . . . . . . .

(2) An officer may appeal to a Disciplinary Appeal Board against a decision made in respect of him -

(a) if the decision relates to a charge of misconduct - on either or both of the following grounds :

(i) that the charge should have been dismissed; or

(ii) that the action directed or recommended to be taken in relation to the charge is unduly severe ;

(b) . . . . . . .

(3) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (2) and may confirm, vary or set aside the decision against which the appeal is made.

(4) . . . . . . .

(5) . . . . . . .

(6) Where an officer appeals to a Disciplinary Appeal Board under sub-section (2) against a decision on the ground that the action directed or recommended to be taken in respect of him is unduly severe, the Board shall take into consideration any evidence given on the hearing of the appeal - (my emphasis)

(a) of matters relating to the previous employment history and general character of the appellant;

(b) if the officer was, under section 63B, suspended without salary in respect of the misconduct or offence to which the decision relates - of any loss of earnings arising from that suspension; and

(c) if the officer is to be transferred to another office - of the expenses that will be incurred by the officer in connexion with that transfer.

(7) A Disciplinary Appeal Board shall give reasons, in writing, for its decision on an appeal under this section. "

(2) Sub-section 63E(4) :

" A person shall not be appointed as the Chairman of a Disciplinary Appeal Board unless he is or has been a Magistrate or is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years. "

(3) Sub-sections 63E(11) and (12) :

" (11) For the purposes of hearing an appeal or request referred to in sub-section (2) or (3), a Disciplinary Appeal Board may take evidence on oath or affirmation and, for those purposes, administer an oath or affirmation.

(12) In proceedings before a Disciplinary Appeal Board for the hearing and determination of an appeal or request referred to in sub-section (2) or (3) -

(a) the procedure of the Board is, subject to this Act and to the regulations, within the discretion of the Board;

(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, and a proper consideration

of the matter before the Board, permit; and

(c) the Board is not bound by rules of evidence. "

In addition, Part IX of the Public Service Regulations - the heading of which is "Discipline in Relation to Officers" - is a comprehensive regulatory code which provides for (among other things) :

(a) the manner of appeal to a Disciplinary Appeal Board (the Board) (regulation 140);
(b) the membership of the Board in respect of "a person nominated by the regulations to represent officers" (s.63E(2) (c) of the Act and sub-regulation 142 (1));
(c) the furnishing to appellants of copies of all documents intended to be used in the hearing of the appeal (sub-regulation 145 (2));
(d) the hearing of appeals in public except in special circumstances (regulation 148);
(e) the power of the Chairman of a Board to summon a person to attend before that Board to give evidence and produce documents (sub-regulation 149(1));
(f) representation of parties. Regulation 152 provides :

" (1) A person who is a party to a proceeding before a Board of Inquiry or a Disciplinary Appeal Board is entitled to examine

witnesses and address that Board at that proceeding.

(2) A person referred to in sub-regulation (1) may be represented

at a proceeding referred to in that sub-regulation by a legal

practitioner or some other person and the legal practitioner or other person may examine witnesses and address the Board referred to in that sub-regulation on behalf of the person referred to in that sub-regulation. "

(g) written notification of the decision of a Board, and of the reasons therefor (regulation 155); and

(h) the payment of the costs incurred by a successful appellant (regulation 156).

For completeness, it should be noted that significant amendments were made by the Public Service Reform Act 1984 (the 1984 Act) to the statutory and subordinate legislative codes in respect of appeals in disciplinary matters affecting officers of the Australian Public Service. They include the repeal of s.63E of the 1922 Act. However, at the date of this judgment the relevant amending provisions have not been proclaimed to come into operation. In any event, s.159 of the 1984 Act contains savings provisions with respect to the recommendations of the first-named respondent and the applicant's right of appeal pursuant to the existing law.

One other important matter of detail is that by the date on which the matter was argued (13 August) the time within which an appeal could be made by the applicant to a Disciplinary Appeal Board had expired (regulation 141 of the Public Service Regulations). However, sub-regulation (2) of regulation 141 provides :

" Where, in relation to an appeal referred to in sub-regulation 140(1), an appellant, or any person on behalf of such an appellant, applies in writing to the Director for an extension of a period referred to in sub-regulation (1), the Director may, if there is reasonable ground for so doing, extend that period by such further period as he considers reasonable. "

Affidavits were sworn and filed on 13 August by or on behalf of all respondents to the effect that they would consent to an application by the applicant for an extension of time within which to appeal. It therefore seems extremely unlikely, in all the circumstances, that any such application would be refused, even though the decision is within the discretion of the Director, Grievance and Appeals Bureau, Office of the Public Service Board.

In order to complete the consideration of this aspect of the case, it should be recorded that counsel for the applicant said:

" . . . . . . . I certainly have no instructions from my client to lodge any appeal, let alone any application for an extension of time to appeal, nor do I understand from the nature of my instructions that such instructions will be forthcoming and my learned friends have been informed of that and have known of that for some time. "

Passing to the substantive issue, I adopt and apply, with respect, the approach of Toohey J in Kelly v. Coats and Others 35 A.L.R. 93 at p.94, in which His Honour said that ". . . . the onus is on those seeking to persuade the court that it should not exercise the jurisdiction conferred upon it by the legislature" (that is, under s.5 of the Act). Counsel for the respondents accepted this view of the nature of the discretionary power under s.10 (2) (b) (ii) of the Act. It is consonant with long-established judicial exposition of the basis for the exercise of analogous discretionary authority.

In short, the facts and circumstances must be such that, with appropriate regard to justice and fairness to the applicant, it is sound and proper that the exercise of the discretion should be "activated" - to use an expression which is common in the context - so that she is directed to an existing avenue for seeking redress rather than be entitled to rely upon the new source of review procedure established by s.5 of the Act.

In reaching a conclusion, I have borne in mind and endeavoured to apply, the principles stated by Dixon C.J. in the following well-known extract from his reasons for judgment in Klein v. Domus Pty Ltd (1963) 109 C.L.R. 467 at pp.472-3, in which the issue was the exercise of judicial discretion to extend the time under s.63(3) of the Workers' Compensation Act 1926-1960 (N.S.W.) for commencing proceedings independently of the Act :

" The discretion in the present case is given in somewhat curious words, viz: 'if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension.' An analysis of those words, perhaps, indicates that there is not a little difficulty in knowing how the words 'it would be reasonable so to do' march with the words 'if he is satisfied that sufficient cause has been shown'. But there is one thing perfectly clear about the sentence - at all events it is clear to me - and that is that the burden is upon the applicant to satisfy the condition that those words express. The applicant has got to show that there is a reason, within the expression which I have read, for extending the time, and it is a positive burden on the applicant, not of any great severity perhaps, but it is a positive burden which the applicant must discharge as he must discharge any other matter in which the burden of proof lies on him. The appellant allowed the time to elapse and it is for her to show that there is a reason why it should be extended. Expressions used in the cases cited before us which suggest that the usual thing is to extend and the unusual thing is to refuse to extend time cannot, in my opinion, be supported as indicating the true meaning of this section. I think that the words which I have read, namely, 'sufficient cause has been shown' really mean that a positive reason has been shown, and the words immediately following them mean 'or if the positive reason cannot be isolated and put in a distinct form, all the facts which are alleged by the applicant amount to - although not dealt with analytically - a sound and positive ground on which an indulgence shall be allowed'.

In the present case Mr Glass has with considerable care and skill gone over all the reasons which are mentioned by all the members of the tribunal to whom I have referred and has suggested that some of them may travel outside the scope of this provision. This Court has in many and diverse connexions dealt with discretions

which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the

discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case. "

Counsel for the respondents invited the court's attention to an article in the Monash University Law Review, vol. 9, September 1982, p.14, in which Professor Enid Campbell discussed in detail reasons why, in particular cases, a discretion of a kind such as that conferred by s.10 (2) (b) (ii) of the Act should not be exercised because the result is not a "viable alternative to judicial review". However, the width of the range of cases considered in the article, arising as they did in different jurisdictions and based on statutes with markedly varying provisions and characteristics, merely illustrates the difficulty of attempting to apply any established definitive principles in respect of the application of s.10 (2) (b) (ii) of the Act.

In the evolving interpretative processes which the Act makes necessary in many respects, it is, at this stage, highly desirable that the approach to the manner of the exercise of the discretionary authority conferred by s.10 (2) (b) (ii) of the Act should be consistent. Apart from the decision of Toohey J. in Kelly v Coats and Others (above), reference should be made to the decision of Fox A.C.J. in Graham v. Commissioner for Superannuation (1981) 3 A.L.N. (52) N86. The case involved a short point of law in respect of the interpretation of the extent of the powers of the Commissioner for Superannuation under s.119 of the Superannuation Act 1976 (Cth). The Commissioner determined the point against the applicant, who sought an order of review of that decision under s.5 of the Act. Fox A.C.J. said :

" I think this is always a matter the court has to consider or should I say it is frequently a matter the court will have to consider. The main consideration, I imagine, is what is best to be done in the interests of the parties and in the public interest and with a view to saving cost and time and reaching as soon as possible a finality of decision.

The jurisdiction of this court except in respect of the matter to which I have already referred was not disputed. What the applicant has done is sought to have the question of law resolved by this court and if resolved in her favour to have the Commissioner exercise his discretion under s.119. If that discretion were exercised unfavourably to her she could then pursue further remedies under the Act or those under the Administrative Appeals Tribunal Act to which counsel has referred.

If the matter were not dealt with by this court she could seek reconsideration by the Commissioner and then go to the Administrative Appeals Tribunal and if the question of law was still decided adversely to her she might then have to come back to a full bench of this court. In the circumstances, it seems plain enough to me that it is in the best interests of everyone that this court deal with the question of law. In other words, that it accepts the jurisdiction granted to it. I therefore proceed to consider the application of s.5. "

Strong reliance was placed by counsel for the respondents on the decision of the New South Wales Court of Appeal in Commissioner of Police v. Gordon (1981) 1 N.S.W.L.R. 675, especially on some of the observations of Moffitt P, for example at p.690.

However, that case is clearly distinguishable. It involved an attempt to invoke judicial prerogative powers, despite the pendency of an appeal by a dismissed police officer to an independent tribunal empowered to conduct a substantive investigation on the merits. Sections 5 and 10 of the Act in their totality create a significantly different situation.

I have reached the conclusion that in the circumstances of this case it is proper, and just to the applicant, that I should refuse to grant the application, on the discretionary basis to do so, because of the provisions in s.10 (2) (b) (ii). The principal reasons are :

1. Parliament has not qualified in any express or implied way the basis for the exercise of the discretion, other than to describe the necessary alternative remedy as "adequate provision". With this qualification, the discretion is completely general, although, of course, it must be exercised judicially.

2. If the application for an order to review is pursued and determined in favour of the applicant, there will not necessarily thereby be a final determination of the original charges against the applicant (s.16 of the Act).

3. Even if the ultimate position was reached that the decisions of the first-named respondent were quashed (s.16 (1) (a) of the Act), the relevant authorities have the right to commence the disciplinary procedures again.

4. The public interest, and the interests of the applicant in the circumstances (cf. the part of her affidavit to which reference has been made), dictate that the matter of grievance be finally determined with appropriate speed and at minimal cost, provided "adequate provision" exists for another authority to do so.

5. An attempted resolution of the applicant's grievance by resort to s.5 of the Act involves (among other things) :

(a) Detailed consideration of the nature of an inquiry under s.62 of the 1922 Act, having regard to the provisions of sub-section 62(3);

(b) The extent to which any accepted rule of natural justice is applicable to such an inquiry;

(c) Determination of a disputed question of fact arising from a paragraph in an affidavit sworn by the solicitor for the applicant, who appeared as her counsel, and which is relevant to the standard of proof applied by the first-named respondent.

The decision of the Court in respect of these, and, it may be, other matters would be subject to appeal, without the merits of the applicant's alleged misconduct having been judged in any way up to that stage. Long delay and costly litigation may ensue. Eventually, another appeal under the 1922 Act could be instituted.

6. I am satisfied that "adequate provision" for review under the 1922 Act exists and that the applicant may avail herself of it if she wishes to do so. Thereby there will be a final determination of the merits of the matter, assuming, as I do, that the Disciplinary Appeal Board acts in accordance with law.

7. I take the view that the alternative appellate procedure under the 1922 Act prescribes a de novo hearing, which involves the exercise of original jurisdiction. I have already canvassed the details of that procedure. It cannot, in my view, be described as other than completely fair and just. In particular, it enables the merits of charges against a nursing sister who held a senior position in a public hospital to be judged by an appropriate tribunal, with a right of representation of the parties by counsel and subject to the accepted safeguards of the adversary system of litigation between parties. It is, in my opinion, a much preferable course than determining the existing application. Even if the applicant succeeded in the existing application, it appears very unlikely, in view of the nature of the material before the court, that such a determination would be other than an early step in a potentially protracted and costly course of inquiry and litigation.

For these reasons, pursuant to s.10 (2) (b) (ii) of the Act, I determine the preliminary point in favour of the respondents and refuse to grant the application.

There will be an order accordingly. If necessary, I shall hear counsel in respect of the question of costs.

Liberty is reserved to each party to apply.