Bercove, Abraham v Hermes, C.L

[1983] FCA 326

Re: ABRAHAM BERCOVE
And: C.L. HERMES, CHAIRMAN AND A.C.C. MENZIES AND J.T. HOWARD, MEMBERS
CONSTITUTING THE DISCIPLINARY APPEAL BOARD
And: PUBLIC SERVICE BOARD
And: THE COMMONWEALTH OF AUSTRALIA (1983) 74 FLR 315
No. WAG 37 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Lockhart(1) and Beaumont(1) JJ.

CATCHWORDS

Administrative Law - Judicial Review - Evidence given by appellant before Royal Commission received by Disciplinary Appeal Board - Submission Royal Commission Act ultra vires in enabling Commissioner to compel answers - Proceedings before Royal Commissioner stated to be confidential - Whether breach of rules of natural justice to receive such confidential evidence - Privilege against self incrimination considered - Objection not taken before Commissioner - Not a ground for rejection of the evidence - Whether expert opinion evidence as to the legal professions perception of the appellant's conduct admissible before the Board - Discussion of improper conduct within meaning of s.55 Public Service Act - Board entitled to act on any material logically probative.

Administrative Decisions (Judicial Review) Act, 1977 s.5

Public Service Act, 1922 ss.55(1)(e), 61, 62, 62(6)(b), 63D(2)

Royal Commissions Act, 1902

Acts Interpretation Act, 1901 s.15A

Administrative Law - Judicial review - Evidence given by appellant before Royal Commission received by Disciplinary Appeals Board - Submission that Royal Commission's Act ultra vires in enabling Commissioner to compel answers - Proceedings before Royal Commissioner stated to be confidential - Whether breach of rules of natural justice to receive such confidential evidence - Privilege against self-incrimination considered - Objection not taken before Commissioner - Not a ground for rejection of the evidence - Whether expert opinion evidence as to the legal profession's perception of the appellant's conduct admissible before the Board - Discussion of improper conduct within meaning of Public Service Act, s. 55 - Board entitled to act on any material logically probative - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 - Public Service Act 1922 (Cth), ss 55(1)(e), 61, 62, 62(6)(b), 63D (2) - Royal Commissions Act 1902 (Cth) - Acts Interpretation Act 1901 (Cth), s. 15A.

HEADNOTE

The appellant gave evidence under summons in confidential session before the Royal Commission. He did not claim privilege against self-incrimination.

Thereafter he was charged under s. 61 of the Public Service Act 1922 (Cth).

The chief officer appointed under that Act held an inquiry pursuant to s. 62 of the Act and recommended to the Public Service Board that action be taken to dismiss the appellant from the Public Service. He took into account the evidence of the appellant before the Royal Commission.

The appellant appealed to a Disciplinary Appeals Board which confirmed the chief officer's recommendation.

The appellant applied to the Federal Court for an order of review in respect of the Board's decision. The application was dismissed.

The appellant then appealed to the Full Court.

Held: (1) The Royal Commissions Act 1902 (Cth) was not ultra vires.

(2) In the circumstances of this case, no total assurance of confidentiality had been given to the appellant by the Royal Commissioner.

(3) There was no error of law and no denial of natural justice in admitting and relying on evidence given before the Royal Commission in proceedings under s. 62 of the Public Service Act 1922.

(4) Expert opinion evidence as to the legal profession's perception of the appellant's conduct was admissible before the Board as the Board was not bound by the rules of evidence.

Improper conduct within the meaning of s. 55 of the Public Service Act, discussed.

HEARING

Sydney, 1983, October 12, 14; November 14. #DATE 14:11:1983

APPEAL.

Appeal from the judgment and orders of Morling J.

The appellant in person.

R. S. French, for the respondents.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown Solicitor.

M.P.S.

ORDER

1. The appeal be dismissed.

2. Abraham Bercove pay to the Commonwealth of Australia its costs of the appeal.

JUDGE1

This is an appeal from a judgment of a single Judge of this Court (Morling, J.) dismissing an application made under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act") by Abraham Bercove, a solicitor who is a Senior Legal Officer in the office of the Deputy Crown Solicitor at Perth.

The appellant was summoned to give evidence on 15 July 1982 before Francis Xavier Costigan of Queen's Counsel who was appointed by the Commonwealth and the State of Victoria as Royal Commissioner to inquire into the activities of the Federated Ship Painters and Dockers Union. The appellant is a solicitor of many years standing. He appeared for himself when he gave evidence before the Commissioner. Before giving his evidence the appellant was informed by the Commissioner that "these proceedings are confidential". His evidence was then taken in camera and the transcript thereof marked "Transcript in Confidence".

The appellant was questioned on a number of matters by counsel assisting the Commissioner including his involvement in an escort agency business known as "Kim's Introductions". He was also questioned about his knowledge of and involvement in the activities of his wife as secretary of a number of companies. The applicant did not in terms claim that his answers to the questions asked of him would or might tend to incriminate him. He objected to answering questions because he claimed that they were irrelevant to any matter within the Commissioner's terms of reference. He expressed unwillingness on more than one occasion to answer questions but was directed to do so by the Commissioner.

On 27 August 1982 the appellant was charged under s.61 of the Public Service Act, 1922 ("the Public Service Act") with:

"having failed to fulfil his duty as an officer in that, between 1969 and 14 March 1981 he was guilty of improper conduct within the meaning of s.55 of the Public Service Act 1922 as it stood prior to 15 March, 1981."

The relevant particulars of the charge of "improper conduct, either in his official capacity or otherwise" (see para.55(1)(e)), were as follows:

"(a) That between 1969 and 15 (sic) March 1981, Mr. Bercove has involved himself in, and directly or indirectly derived profit from an escort agency business . . . ; . . .

(d) That Mr. Bercove actively supported his wife in a decision to perform secretarial services for a number of companies for reward including the receiving of mail addressed to those companies and other companies when he had reason to believe that the services to be rendered by his wife were sought as an aid to unlawful or improper conduct on the part of the said companies and of those associated with them."

The Chief Officer appointed under the Public Service Act held an inquiry pursuant to s.62. He recommended to the Public Service Board pursuant to para.62(6)(b) of the Public Service Act that action be taken to dismiss the appellant from the Australian Public Service. The appellant thereupon appealed to a Disciplinary Appeal Board ("the Board") pursuant to sub-s.63D(2). The appellant was represented by counsel at the hearing before the Board. Counsel for the Board tendered part of the transcript of the evidence given by the appellant before the Commissioner. This was the evidence which the appellant had given after being told that:

"these proceedings are confidential".

The transcript had been released with the authority of the Commissioner. Counsel appearing for the appellant before the Board objected to the tender of the transcript. The Board received the transcript into evidence before it.

The Board also heard evidence from Mr. Ian Temby of Queen's Counsel, the President of the Law Society of Western Australia. This evidence was objected to by counsel for the appellant. Mr. Temby expressed his opinion on the propriety of the appellant's conduct in relation to the escort agency and whether it brought the appellant and the office of the Deputy Crown Solicitor in Perth into disrepute.

The Board confirmed the Chief Officer's recommendation.

The appellant then applied to this Court for an order of review in respect of the Board's decision pursuant to the Judicial Review Act. Morling, J. dismissed the application with costs. The appellant appeals from those orders of his Honour. He conducted his own appeal before us.

There are numerous grounds of appeal. The submission of the appellant which it is convenient to consider first was that the Royal Commissions Act, 1902 is ultra vires the Commonwealth Parliament and void so far as it purports to enable a Commissioner to compel answers generally to questions, and that the transcript of the appellant's evidence before the Commissioner in this case was thereby rendered inadmissible before the Board.

The Royal Commissions Act, 1902 and the nature and powers of Royal Commissioners have been discussed in a number of cases. The appellant relied primarily on the judgment of the Judicial Committee of the Privy Council in Attorney General v. Colonial Sugar Refining Co. Ltd. (1914) 17 C.L.R. 644. Their Lordships considered the Royal Commissions Act, 1902, in particular those sections relating to the powers of a Commissioner to compel the attendance of witnesses and the production of documents and to require the giving of evidence. The form of certain of those sections has changed over the years since 1902 but, so far as the issues raised in the present appeal are concerned, the relevant sections are not materially different.

The Judicial Committee held that the Royal Commissions Act, 1902 was ultra vires and void so far as it purported to enable a Royal Commissioner to compel answers generally to questions or to order the production of documents or otherwise to enforce compliance by the public with its requirements where the subject matter of the inquiry was outside the field of Commonwealth power. But we do not understand their Lordships to have said that the compulsive powers conferred on Commissioners by the Royal Commissions Act, 1902 are void where the terms of reference of inquiries are within the constitutional competence of the Commonwealth Parliament. Further, it must be remembered that when the Judicial Committee decided the CSR Case, s.15A was not present in the Acts Interpretation Act, 1901 (Cth.). Since its insertion it seems, therefore, that if the CSR Case did have the operation contended for by the appellant or some other operation wider than, in our view, it has, s.15A may operate to validate the relevant provisions of the Royal Commissions Act, 1902 insofar as they may purport to relate to Commissions established under that Act with terms of reference covering matters which are within the legislative competence of the Commonwealth Parliament. We respectfully agree with the view on this question expressed by Fullagar, J. in Lockwood v. Commonwealth (1954) 90 C.L.R. 177 at pp.182 and 183 (see also State of Victoria v. Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 41 A.L.R. 71 at p.82; Ross v. Costigan (1982) 41 A.L.R. 319 at p.329).

No submission was made to us that the terms of reference of the Costigan Commission covered matters outside the ambit of the legislative power of the Commonwealth and, correctly in our view, no such point was taken before the Board or Morling, J. There is therefore no substance in the submission that the Commission was not entitled to invoke the powers of compelling the attendance of witnesses, ordering the production of documents and requiring witnesses to answer questions.

If, contrary to our view, the Royal Commissions Act, 1902 is ultra vires the Commonwealth Parliament and void so far as it purports to enable a Commissioner to exercise the compulsive powers of attendance of witnesses and giving evidence, it does not follow that the transcript of the appellant's evidence before the Commissioner in this case was thereby rendered inadmissible before the Board. Illegally obtained evidence is not per se inadmissible in the courts of this country. Our courts have a discretion to reject the evidence. In R. v. Ireland (1970) 126 C.L.R. 321 Barwick, C.J. said (at p.334):

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

That statement represents the law in Australia: see Bunning v. Cross (1978) 141 C.L.R. 54; compare Cleland v. R. (1982) 43 A.L.R. 619.

It is not necessary, however, for us to consider this question further as no objection was taken before the Board or Morling, J. as to the admissibility of the transcript of the appellant's evidence on the ground that the Royal Commissions Act, 1902 was relevantly void. The objection to admissibility of the transcript taken before the Board and Morling, J. was based on the lack of relevance of the questions asked to the Commissioner's terms of reference with the consequence, it was said, that the Commissioner lacked the power to compel the appellant to incriminate himself. But the point of constitutional incompetence of the Act was raised for the first time by the appellant as a ground of appeal from the judgment of Morling, J. to this Full Court. There was, therefore, no call for the Board to consider these matters as a ground of objection to the admissibility of this evidence and no reason for Morling, J. to review the Board's decision on that account.

In his second ground of appeal, the appellant submits that, by reason of the confidential character of his evidence before the Royal Commissioner, it was contrary to the rules of natural justice for the first respondent to admit and rely upon that evidence. Before considering whether any breach of the rules of natural justice occurred, it is necessary to refer to the statutory context in which the Commissioner's direction that the proceedings were "confidential" was made. The Royal Commissions Act, 1902 in its terms recognises the familiar distinction between the exercise of a power to exclude any person from a tribunal on the one hand and the exercise of a power prohibiting publication of any such evidence on the other hand (see Re Trade Practices Tribunal; Ex parte Tooheys Ltd. (1977) 16 A.L.R. 609). Thus, by sub-s.6D(2), the Commissioner may take evidence in private in a proper case and no person who is not expressly authorised by the Commissioner to be present shall be present during the taking of that evidence; by sub-s.6D(3), the Commissioner may direct that any evidence given before it or the contents of any documents, books or writings produced at the inquiry, shall not be published; and publication in contravention is an offence (sub-s.6D(4)). It is provided by sub-s.6D(5) that this section shall be read in aid of and not as in derogation of the Commissioner's general powers to order that any evidence may be taken in private.

When the Commissioner spoke of the "confidential" character of the proceedings, he was presumably exercising one or other of the statutory powers given him by sub-s.6D(2) or (3) or even a power available under the general law and reserved by sub-s.6D(5), and it may be possible to spell out of the circumstances of the case a duty to act fairly in this connection subject always to the overriding requirements of the public interest (see Re Pergamon Press Ltd. (1971) 1 Ch. 388; Maxwell v. Department of Trade and Industry (1974) 1 Q.B. 523; cf. Testro Bros. Proprietary Limited v. Tait (1963) 109 C.L.R. 353).

In Pergamon Press, supra, Lord Denning, M.R. contemplated the giving of express assurances to the witness in this regard saying (at p.400):

"This investigation is ordered in the public interest. It should not be impeded by measures of this kind. Witnesses should be encouraged to come forward and not hold back. Remember, this not being a judicial proceeding, the witnesses are not protected by an absolute privilege, but only by a qualified privilege: see O'Connor v. Waldron (1935) A.C. 76. It is easy to imagine a situation in which, if the name of a witness were disclosed, he might have an action brought against him, and this might deter him from telling all he knew. No one likes to have an action brought against him, however unfounded. Every witness must, therefore, be protected. He must be encouraged to be frank. This is done by giving every witness an assurance that his evidence will be regarded as confidential and will not be used except for the purpose of the report. This assurance must be honoured. It does not mean that his name and his evidence will never be disclosed to anyone. It will often have to be used for the purpose of the report, not only in the report itself, but also by putting it in general terms to other witnesses for their comments. But it does mean that the inspectors will exercise a wise discretion in the use of it so as to safeguard the witness himself and any others affected by it. His evidence may sometimes, though rarely, be so confidential that it cannot be put to those affected by it, even in general terms. If so, it should be ignored so far as they are concerned."

In considering the extent of confidentiality of evidence given before a court or an administrative body, the particular role played by the witness can be significant. In the ordinary case, confidentiality of the evidence is not complete. In London and County Securities Ltd. v. Nicholson (1980) 3 All E.R. 861 Browne-Wilkinson, J. explained the general position (at p.866):

"In none of the cases I have so far referred to was any point taken that the evidence was inadmissible on the grounds that it was given to the inspectors in confidence. The submission of counsel for the defendants is that the evidence was given by the witnesses to the inspectors in confidence and that it is therefore not admissible. He accepts that for relevant evidence to be excluded on these grounds communication in confidence by itself is not enough; it has also to be shown that the confidence is of a kind which the public interest requires to be protected: see D v. National Society for the Prevention of Cruelty to Children (1977) 1 All ER 589 at 594, (1978) AC 171 at 218. There is considerable authority supporting the broad proposition that evidence given to inspectors appointed under the 1948 Act is given in confidence, and that the public interest requires that confidence to be protected: see R v. Cheltenham Justices, ex parte Secretary of State for Trade (1977) 1 All ER 469, (1977) 1 WLR 95 and Re Pergamon Press Ltd. (1970) 3 All ER 535, (1971)Ch 388. As those cases show, the public interest is to ensure that so far as possible people will give information and evidence frankly to inspectors without fear that by so doing they will expose themselves to subsequent actions by other persons who are or may be adversely affected by their evidence.

However, it is of fundamental importance that, unlike any other instance cited to me in which evidence was excluded on this ground, it is clear that in the case of evidence given to inspectors the confidentiality of the evidence is not complete. The potential witness will, on any footing, know that his evidence and identity may be disclosed in any of the following ways: (1) by his evidence being put by the inspectors to other witnesses; (2) by being incorporated in the inspectors' report, which under s.168 of the 1948 Act is or may be distributed to the company, to members and creditors of the company, and to persons who applied for the investigation; it may be published by HM Stationery Office; (3) in criminal or civil proceedings against him.

Therefore the public interest in this case is not the same as that which protects the confidentiality of police and other informers. In the case of informers, the public interest is to provide the informant with total confidentiality, which apparently cannot be waived, so as to ensure that informers as a class will know that they cannot be identified. In the present case, express statutory provisions show that in the view of Parliament there are other interests which outweigh the public interest in giving potential witnesses the assurance of complete confidentiality."

(Cf. British Steel Corporation v. Granada Television Ltd. (1981) A.C. 1096; and see Allied Mills Industries Pty. Ltd. v. Trade Practices Commission (1981) 34 A.L.R. 105).

Since the appellant was not acting as an informer or in any similar role, total confidentiality could not be assured, although by virtue of s.6DD of the Royal Commissions Act, 1902 the third area described by Browne-Wilkinson, J. in which disclosure may occur has been eliminated here. Although argued before Morling, J., and at first before us but later abandoned, the appellant now accepts, we think correctly, that the proceedings before the Board were not proceedings in a "Court" within the meaning of s.6DD.

It follows, in our opinion, that no total assurance of confidentiality was given to the appellant by the Commissioner (cf. Clough v. Leahy (1905) 2 C.L.R. 139 at p.159). Further, in determining where the public interest ultimately lay in a case such as this, involving as it did, the working of the public service, we think that it was reasonably open to the Commissioner and the Board to form the view that, in all the circumstances, the public interest required the Board to be informed of these matters in dealing with the disciplinary charges brought against the appellant. We therefore find no error of law and no denial of natural justice in this connection.

In any event, we note that, in the proceedings before the Board, no objection to the use of this material was taken on behalf of the appellant on the ground of its use in breach of confidence. This is hardly surprising, given the notoriety claimed by the appellant for his wife's business activities, a matter to which reference will be made later. The point was taken for the first time before Morling, J.

The appellant's third ground of appeal is that it was contrary to the rules of natural justice for the Board to admit and rely on the evidence given before the Commissioner when both the Commissioner and the Board lacked the power to compel the appellant to answer questions that might incriminate him. He relies upon some observations, made by Gibbs, C.J. and by Murphy, J. in Sorby v. Commonwealth of Australia (1983) 46 A.L.R. 237 to the effect that, at the time of the proceedings before the Commission (15 July 1982) the privilege against self-incrimination was still available (at p.246 and p.260 respectively). Sorby was argued in February 1983 and decided in March 1983 by which time it was held that in view of legislative amendments which came into force on 1 February 1983, the Commissioner had the power, when acting pursuant to Commonwealth law, to compel witnesses to answer questions, notwithstanding that the answers tended to incriminate the witness. Gibbs, C.J. mentioned (at p.244) that in Hammond v. Commonwealth of Australia (1982) 42 A.L.R. 327, doubts had been expressed as to whether the Royal Commissions Act, 1902 had excluded the privilege but the point was not then fully explored (42 A.L.R. at p.333). However, Hammond was argued and decided in August 1982 some weeks after the appellant gave his evidence and it may well be that the Commissioner and the appellant assumed, as did the parties in Hammond, that the privilege had been excluded by the general words of the statute as it stood at the time.

The position then is that, at the time of giving his evidence before the Commission, the appellant was presumably unaware of any right he may then have had to claim the privilege, although there is no evidence of his actual position since the appellant did not give evidence before the Board or Morling, J. The general evidentiary position is explained by Davies, J. in The Queen v. Charles Walter McDonald - unreported - 4 October 1983 (at p.22):

"Even if one assumes that a witness before a commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless the objection is taken. See Phipson on Evidence, 12th Ed. paragraph 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness. See Cross on Evidence, 2nd Australian Ed, paragraph 11.17. It is for the witness to take the objection in his answer. The taking of the objection thus serves as an answer to the question."

It should be remarked that at no stage has the appellant regarded the conduct of his wife or of himself as involving any element of criminality whatever. In his submissions to us and previously, the appellant vigorously asserted the legitimacy and propriety of their activities. This is entirely consistent with his submission that the operation by his wife of her escort agency was well known, even to his own superiors. Support for his contention may be found in the circumstances that there was nothing clandestine about the operation of the escort agency and that on the occasions when the police raided his home the appellant was apparently able to satisfy them that no illegal activity was being carried on.

These considerations suggest that, even if the appellant had been aware of his privilege against self-incrimination, he may well not have claimed to exercise it. It appears to us that no ground for judicial review of the Board's decision on this score has been made out.

In his next ground of appeal, the appellant challenges the reception by the Board of the evidence of Mr. Temby. He says that the statement made by Mr. Temby should not have been admitted into evidence by the Board because it was based on publicity that followed publication of the Commission's report and was not based upon any actual knowledge of the facts. Mr. Temby's statement was in the form of expert opinion evidence and included the following:

"I am aware of the publicity which followed the publication last year of the interim report number 4 of the Royal Commission on the activities of the Federated Ship Painters and Dockers Union. In particular I recollect the publicity that suggested an association between Mr Abraham Bercove, an officer of the Deputy Crown Solicitor's office in Perth, and an escort agency conducted by his wife. I believe as a matter of general impression, and particularly because of what a number of lawyers said to me, that the revelation of that fact, if it be a fact, that Bercove was involved in an escort agency did damage both to his reputation and to that of the Deputy Crown Solicitor's office among members of the legal profession in Perth. Among members of the legal profession and, I believe, among members of the general public it is assumed that frequently escort agency businesses are fronts for prostitution or like activities. Right thinking lawyers do not object to members of the profession carrying on other businesses which are reputable but the public attitude to escort agencies is such that a member of the legal profession in good standing would not be involved in the conduct of its affairs."

The Board was not bound by the rules of evidence (sub-s.63E(12) of the Act). As a general rule, subject to observation of the rules of natural justice, the Board is entitled to act on any material which is logically probative, even though such material is not admissible evidence in a court of law (see T.A. Miller, Ltd. v. Minister of Housing and Local Government (1968) 2 All E.R. 633 at p.634; Kavanagh v. Chief Constable of Devon and Cornwall (1974) 1 Q.B. 624 at p.633). The appellant relied upon some observations made by Brinsden, J. in Shearer v. Pharmaceutical Council of Western Australia (unreported - 5 February 1982 - see 4 A.L.N. case 30) that where a fact to be established before an administrative tribunal is "an important one essential to the determination it should be proved by cogent evidence such as men and women exercising common prudence could safely act upon" (at p.9). However, those remarks were made in the context of a question arising as to whether a prescription was in fact a forgery and, understandably, a relatively high standard of proof of that primary fact was called for, whether as a matter of expert evidence or otherwise. It seems to us that Mr. Temby's statement is of a different character. It is not evidence adduced for the purpose of establishing the primary acts of the involvement or otherwise of the appellant in the activities complained of. It is expert evidence expressing an opinion as to the view taken of the conduct of the appellant by the legal profession and, to some extent, by the public, given certain assumed facts then stated. The facts so assumed by Mr. Temby having been exposed to the Board, it was a matter for the Board to decide what weight, if any, it would give to such evidence subject to compliance with the rules of natural justice (see Wajnberg v. Raynor (1971) V.R. 665 at p.678). The appellant was given an adequate opportunity to meet this evidence and elected not to cross-examine Mr. Temby. No breach of the rules of natural justice occurred. In our opinion, the Board was entitled to have regard to Mr. Temby's evidence. The weight to be afforded to it was a matter for the Board, and no reason for review based upon any of the grounds described in s.5 of the Judicial Review Act has been established here.

For his next ground of appeal, the appellant contends that the conduct alleged in particulars (a) and (d), supra, even if proved, which is denied, did not constitute improper conduct within the terms of s.55 of the Public Service Act and the Discipline Handbook (February 1982 edition) and the guidelines to the official conduct of the Commonwealth Public Servants (June 1982 edition).

It is clear that neither the Discipline Handbook nor the guidelines can in any way restrict the meaning of s.55 or its application in particular cases. We should add that, in any event, we have found nothing in either document which assists the appellant. So far as s.55 itself is concerned, the question here is whether it was open to the Board to conclude that the appellant was guilty of "improper conduct, either in his official capacity or otherwise". This is essentially a question of fact and we agree with Morling, J., for the reasons he gave, on the material before it, that it was at least reasonably open to the Board to make this finding.

There can be no doubt that the appellant actively participated in the operation of the escort business. His frequent actions in the placing of and paying for advertisements may be instanced. Likewise, although the exact quantum may be debatable, there can be no question but that the appellant stood to benefit and did benefit financially from the operation of that business. But what the appellant challenges is the Board's conclusion as to the public perception of this activity. We agree with Morling, J. that the point is met by the appellant's own evidence before the Commission that:

" . . . The whole escort business has got that unsavoury name and anyone who runs that business is assumed to be a madam."

Similarly, we think that, given the public position held by the appellant it was open to the Board to hold, as Morling, J. found, that the action taken by him in connection with companies employed in tax evasion or "avoidance" was improper.

Then the appellant says that there was no evidence to establish particulars (a) and (d), supra, and there was no evidence to show that his conduct brought the Australian public service into disrepute. The latter question does not arise, in terms, having regard to the language of para.55(1)(e). Even if it did arise, we agree with Morling, J. that it lacks substance for the reasons he gave.

It is plain enough that there was ample evidence to justify the findings made by the Board, even if the evidence given before the Commission is ignored. For example, with respect to the escort agency (particular (a)), primary documentary evidence was available to prove the actions taken by the appellant in the placing of and payment for, advertisements. Further primary evidence in the form of financial records was tendered to show financial advantage to the appellant. The Board was also entitled to take into account an admission by the appellant, so far as it went, that "(the) only financial reward (for me from the escort business) has been $1,000 received by my wife" contained in a letter to the Chief Officer dated 28 September 1982. And neither the appellant nor his wife gave evidence before the Chief Officer, the Board or Morling, J.

There was also documentary evidence to support the finding made under particular (d). There was material in evidence proving that the companies in question were controlled by a group of persons actively involved in the promotion and marketing of schemes to evade or "avoid" taxation. A letter dated 1 March 1977 was tendered before the Board in which the appellant wrote on behalf of his wife to one of the controllers of the companies concerned:

"Dear Lloyd,

Just a short note to say that as I am leaving for overseas for an indefinite period on 15 March 1977 and as I have not received my fee for the financial year ending June 30, 1977 I am no longer able to act as Secretary for your various companies for these two reasons.

I have notified both the Companies Office and the Deputy Commissioner of Taxation."

There was also in evidence another letter from the appellant on behalf of his wife of that date:

"Deputy Commissioner of Taxation, Commonwelth Taxation Office, G.P.O. Box A15, PERTH, W.A. 6001 Attention: Mr. F. Hoskins Dear Fred,

I refer to my telephone conversation and confirm that my wife is not the Secretary for the above companies.

She acts only for those Companies as disclosed by copy letter of 1 July, 1975.

Accordingly I am returning the documents.

Yours sincerely,

(sgd.) A. Bercove A. BERCOVE for Mrs. M. Bercove"

This letter was enclosed in an envelope stamped "O.H.M.S." and bearing the statement:

"IF NOT DELIVERED WITHIN 7 DAYS, RETURN TO BOX U1994, G.P.O., PERTH, W.A. 6001"

This postal address is that of the office of the Commonwealth Crown Solicitor in Perth. It thus appears that the envelope was obtained from that office. Given this and other material, we agree with Morling, J. that this ground also fails.

Finally, the appellant says that the penalty imposed by the Board was too severe and that the Board and Morling, J. failed to give sufficient weight to the circumstances that the appellant's superiors were fully aware that his wife conducted an escort agency but did not consider it improper. We agree with Morling, J. that these submissions lack merit and on no view could they provide a basis for intervention under the Judicial Review Act.

The appeal should be dismissed with costs.