Bercove, Abraham v Hermes, C.L - [1983] FCA 170

Re: ABRAHAM BERCOVE
And: C.L. HERMES CHAIRMAN, A.C.C. MENZIES and J.T. HOWARD MEMBERS CONSTITUTING
THE DISCIPLINARY APPEAL BOARD
And: PUBLIC SERVICE BOARD
And: THE COMMONWEALTH OF AUSTRALIA (1983) 67 FLR 186
No. W.A.G. 12 of 1983
Administrative Law - Evidence - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - judicial review - public servant - improper conduct - evidence given in camera before Royal Commission - evidence self-incriminating - use of evidence in subsequent disciplinary proceedings before Disciplinary Appeal Board - whether denial of natural justice - whether error of law to admit evidence - whether Board a court for purposes of Royal Commissions Act

Administrative Decisions (Judicial Review Act) 1977 ss. 3(3), 5(1)

Public Service Act 1922, ss. 55, 61, 62(6) (b)

Royal Commissions Act 1902, ss. 6, 6DD

Administrative Law - Disciplinary Appeal Board - Charge of improper conduct - Evidence given in camera to Royal Commission admitted in evidence by Board - Evidence self-incriminating - Whether Board erred in admitting that evidence - Whether Board breached rules of natural justice - Evidence wrongfully obtained - Whether evidence wrongfully obtained admissible - Improper conduct - Admissibility of opinion evidence - Public Service Act 1922 (Cth), ss 47, 55, 56, 61, 62, 63D, 63E(12) - Public Service Amendment Act 1978 (Cth), ss 20, 49 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(3), 5(1) - Police Act 1892 (W.A.), s. 76(1) - Royal Commissions Act 1902 (Cth), ss 6, 6DD - Acts Interpretation Act 1901 (Cth), s. 15AA.

Evidence - Administrative law - Disciplinary Appeal Board - Charge of improper conduct - Admissibility of evidence - Board admits self-incriminating evidence given in camera to Royal Commission - Evidence wrongfully obtained - Opinion evidence - Whether Board erred in admitting such evidence - Public Service Act 1922 (Cth), ss 47, 55, 56, 61, 62, 63D, 63E(12) - Public Service Amendment Act 1978 - (Cth), ss 20, 49 - Police Act 1892 (W.A.), s. 76(1) - Royal Commissions Act 1902 (Cth), ss 6, 6DD - Acts Interpretation Act 1901 (Cth), s. 15AA.

Statutes - Interpretation - "Improper conduct" - Public Service Act 1922 (Cth), ss 47, 55(e).

HEADNOTE

The appellant was a senior legal officer in the office of the Commonwealth Deputy Crown Solicitor. In July 1982 the applicant was summonsed to give evidence to the Royal Commission set up by the Commonwealth to inquire into the activities of the Federated Ship Painters and Dockers Union. Before giving his evidence, the applicant was informed by the Royal Commissioner that "these proceedings are confidential" and the applicant's evidence was taken in camera. The applicant was questioned by counsel assisting the Commissioner about his involvement in the escort agency business known as "Kim's Introductions" which business allegedly provided women for prostitution. The applicant expressed his unwillingness to answer questions but was directed to do so by the Commissioner. The applicant failed to make a claim then for privilege…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1983] FCA 170
Decision Date: 29 JULY 1983

CaseChat Overview and Summary

In the case of Bercove, Abraham v Hermes, C.L, the applicant, a public servant, challenged the decision of the Disciplinary Appeal Board which had upheld the disciplinary action taken against him by his employer. The applicant argued that the Board had denied him natural justice by admitting evidence that he had given in camera before a Royal Commission, which he contended was self-incriminating and could not be used in subsequent disciplinary proceedings. The Federal Court was required to determine whether the Board had erred in admitting the evidence and whether the Board was a court for the purposes of the Royal Commissions Act.

The court held that the Board was not a court for the purposes of the Royal Commissions Act, and therefore the provisions of the Act which prohibit the use of evidence given before a Royal Commission in subsequent proceedings did not apply. The court found that the Board was an administrative tribunal with limited powers and that it was not subject to the same rules of evidence and procedure as a court. The court also held that the Board had not denied the applicant natural justice by admitting the evidence, as the evidence was relevant to the disciplinary proceedings and the applicant had been given an opportunity to respond to it. The court found that the Board had not erred in admitting the evidence and that the applicant's appeal should be dismissed.

The court dismissed the applicant's appeal with costs. The court found that the Board had not erred in law in admitting the evidence and that the applicant had not been denied natural justice. The court held that the Board was not a court for the purposes of the Royal Commissions Act and that the provisions of the Act did not apply to the proceedings before the Board. The court found that the Board had acted within its powers and that its decision was not Wednesbury unreasonable. The court dismissed the applicant's appeal and ordered that he pay the costs of the proceeding.

Orders

Orders of the court

The application be dismissed with costs. Application dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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