Bewly, Kevin Thomas v Cruikshanks, R. W. & Ors and in the matter of an application made pursuant to Section 5(1) of the Administrative Decisions (Judicial review) Act 1977 - [1984] FCA 97

Re: KEVIN THOMAS BEWLEY
And: R.W. CRUICKSHANKS; C.J. McAULIFFE and L.McINNIS as persons constituting
The Australian National Railways Commission's Promotions Appeal Board;
AUSTRALIAN NATIONAL RAILWAYS COMMISSION and in the matter of an Application
made pursuant to Section 5(1) of the Administrative Decisions (Judicial
Review) Act 1977
No. G28 of 1983
Administrative Law - Master and Servant
53 ALR 205 / 1 FCR 534

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Review of decision of Promotions Appeal Board - Improper exercise of power - Grounds of Appeal under Regulations - Limitations on jurisdiction of Board - Efficiency and duties of subject position.

Administrative Decisions (Judicial Review) Act 1977 s.5

Australian National Railways Act 1977 s.53A

Australian National Railways Board of Appeal By-law - clauses 13 and 19.

Master and Servant - Australian Public Servant - Promotion by efficiency - Meaning - Australian National Railways Act 1977 (Cth). s. 53A.

HEADNOTE

The Promotions Appeal Board, in considering efficiency "in relation to the subject position" of an appellant against a provisional promition, is not entitled in the absence of express provisions, to have regard to qualifications and aptitudes for the performance of duties other than those of the subject position as determined by the duty statement.

HEARING

Adelaide ,1984, January 31; February 15; March 20; April 18. #DATE 18:4:1984

APPLICATION.

Application for orders of review of the decision of a Promotions Appeal Board.

A. C. Collett, for the applicant.

P. C. Walsh, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Johnston Withers McCusker & Co.

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

G.F.V.

ORDER

The decision of the Australian National Railways Commission's Promotions Appeal Board be quashed.
The matter to which the decision relates be remitted for further consideration by a newly constituted Promotions Appeal Board.
The respondents pay the costs of the application.

Decisions of the Promotions Appeal Board quashed with costs.

JUDGE1

This is an application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Review Act") for a review of the decision of the persons constituting an Australian National Railways Commission's Promotions Appeal Board ("the Board") allowing an appeal against the provisional promotion of the applicant. He had previously been appointed provisionally to the designation of Clerk Class 1 in the Transport Co-ordinator's Office of th Australian National Railways Commission ("the A.N.R.C.") in Adelaide. The consequence of the allowance of the appeal was that one A.D. O'Connell was granted that designation.

Many grounds for the review were set out in the application, but ultimately counsel for the applicant confined his case to two grounds, namely that the Board took into account irrelevant considerations and did not follow the procedures required of it by law. Reasons for the decision were supplied pursuant to the requirements of s.13 of the Review Act and the relevant portions will be subsequently set out.
The matter arises in the following circumstances.…

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

AGLC: Bewly, Kevin Thomas v Cruikshanks, R. W. & Ors and in the matter of an application made pursuant to Section 5(1) of the Administrative Decisions (Judicial review) Act 1977 [1984] FCA 97 (53 ALR 205; 1 FCR 534)
Case: [1984] FCA 97
Decision Date: 18 APRIL 1984

CaseChat Overview and Summary

The case involves an appeal by Kevin Thomas Bewly against the decision of the Australian National Railways Commission's Promotions Appeal Board, with the proceedings also involving R. W. Cruikshanks and others. The dispute centres on the Board's decision which Bewly sought to challenge, raising issues regarding the Board's review of his case and the application of certain regulations in relation to promotions within the Commission. The judicial review was conducted in the Federal Court of Australia.

The court was required to determine whether the Promotions Appeal Board had properly exercised its power in reviewing Bewly's case. Specifically, the court examined whether the Board had adhered to the statutory and regulatory framework governing its jurisdiction, particularly in relation to the grounds for appeal and the efficiency and duties of the subject position. Additionally, the court assessed whether there were any procedural errors or improper considerations that led to an unfair outcome for Bewly.

In reviewing the Board's decision, the court found that there were significant procedural irregularities and an improper exercise of power. The Board had failed to properly consider relevant factors and had overstepped its jurisdictional limits. The court held that these errors resulted in a decision that was unjust and not in accordance with the law. Consequently, the court quashed the decision of the Promotions Appeal Board and ordered that the matter be remitted for reconsideration by a newly constituted Board.

The court's final orders were that the original decision of the Promotions Appeal Board be quashed, the matter be remitted for reconsideration by a newly constituted Board, and the respondents pay the costs of the application. The decision effectively provided Bewly with the opportunity for his case to be reconsidered by a properly constituted and impartial Board, while also ensuring that the respondents bore the costs associated with the application.

Orders

Orders of the court

The decision of the Australian National Railways Commission's Promotions Appeal Board be quashed.

The matter to which the decision relates be remitted for further consideration by a newly constituted Promotions Appeal Board.

The respondents pay the costs of the application.

Decisions of the Promotions Appeal Board quashed 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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