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Bohills v Friedman

Bohills v Friedman

Case [2001] FCA 569 17 May 2001

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FEDERAL COURT OF AUSTRALIA
Bohills v Friedman [2001] FCA 569
ADMINISTRATIVE LAW – judicial review – natural justice – reasonable apprehension of bias – provision of prejudicial material to members of a Disciplinary Appeal Committee of the Merit Protection and Review Agency prior to hearing of the appeal – whether gives rise to a reasonable apprehension of bias – waiver – express statement of confidence in ability of tribunal to act properly – whether nullified objection – whether amounted to a waiver – improper exercise of power – taking into account an irrelevant consideration – tender of folder containing irrelevant and prejudicial material – reliance by committee on the evidence tendered by the parties – whether committee took into account an irrelevant consideration
PUBLIC SERVICE – appeal committees – nature of an appeal to a Disciplinary Appeal Committee of the Merit Protection and Review Agency – whether appeal by way of rehearing or a fresh hearing
COURTS AND JUDGES – findings of fact – task of decision-maker in making findings of fact – whether decision-maker should accept the account of one witness wholly in preference to that of another
WORDS AND PHRASES – “hear”
Public Service Act 1922 (Cth) ss 56, 61, 62, 63D
Merit Protection (Australian Government Employees) Act 1984 (Cth) ss 16, 17
Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth) ss 3, 4, 14, Sch 1
Public Employment (Consequential and Transitional) Regulations 1999 (Cth) regs 2.19, 4.2, 4.4
Allesch v Maunz [2000] HCA 40, (2000) 173 ALR 648, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 174 ALR 585, followed
Secretary, Department of Social Security v Willee (1990) 96 ALR 211, considered
Day v Douglas [1999] FCA 1444, considered
Commonwealth of Australia v Day [2000] FCA 474, considered
Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied
Hercules v Jacobs (1982) 60 FLR 82, considered
Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, considered
Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158, distinguished
Vakauta v Kelly (1989) 167 CLR 568, applied
Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, considered
Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655, considered
Hercules v Brennan (Fitzgerald J, 8 November 1982, unreported), referred to
JOHN BOHILLS v GRAHAM FRIEDMAN, WENDY DAVENPORT AND TREVOR EDMONDS SITTING AS A DISCIPLINARY APPEAL COMMITTEE OF THE MERIT PROTECTION AND REVIEW AGENCY AND THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
V 209 of 2000
GRAY J
17 MAY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 209 of 2000

BETWEEN:

JOHN BOHILLS
APPLICANT

AND:

GRAHAM FRIEDMAN, WENDY DAVENPORT AND TREVOR EDMONDS SITTING AS A DISCIPLINARY APPEAL COMMITTEE OF THE MERIT PROTECTION AND REVIEW AGENCY
FIRST RESPONDENT

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND…

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.

Continue reading Bohills v Friedman

Details

AGLC: Bohills v Friedman [2001] FCA 569
Case: [2001] FCA 569
Decision Date: 17 MAY 2001

CaseChat Overview and Summary

The case of Bohills v Friedman involved the applicant challenging a disciplinary action taken against him by the Disciplinary Appeal Committee. The Committee had found the applicant guilty of failing to fulfil his duty as an officer and imposed a fine of $350. The applicant contested this decision and sought judicial review. The dispute was heard in the Federal Court of Australia. The applicant argued that the decision of the Disciplinary Appeal Committee was flawed and did not adhere to the principles of natural justice and procedural fairness.

The legal issues before the court were whether the Disciplinary Appeal Committee's decision was legally sound and whether the applicant's right to procedural fairness had been upheld. Specifically, the court needed to determine whether the composition of the Committee, the process followed, and the decision-making met the required standards of fairness and due process. The applicant contended that the Committee was not properly constituted and that the process was unfair.

In considering these issues, the court found that the Disciplinary Appeal Committee had not been properly constituted as it included a member who had a conflict of interest. This breach of procedural fairness undermined the validity of the Committee's decision. The court also found that the process followed did not meet the standards of natural justice. As a result, the decision of the Disciplinary Appeal Committee was set aside, and the matter was referred to the Merit Protection and Review Agency for reconsideration by a differently constituted Committee. Additionally, the court ordered that the second respondent pay the applicant's costs of the proceeding.

Orders

Orders of the court

1. The decision of the Disciplinary Appeal Committee, constituted by Graham Friedman, Wendy Davenport and Trevor Edmonds, dated 6 March 2000, finding proven a charge against the applicant of failing to fulfil his duty as an officer and confirming a direction of Greg Hackett that the applicant “be fined” $350 in respect of that charge, be set aside.

2. The matter to which that decision relates be referred to the Merit Protection and Review Agency for further consideration by a differently constituted Disciplinary Appeal Committee.

3. The second respondent pay the applicant’s costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

Citations

AGLC Citation

Bohills v Friedman [2001] FCA 569

Most Recent Citation

Robb v Chief Commissioner of Police [2005] VSC 310

Cases citing this decision · 6 of 6 shown

MH6 v Mental Health Review Board
[2009] VSCA 184

…[8] Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6 (Dixon CJ and Webb J); Bohills v Friedman [2001] FCA 569 (Gray J). See, generally, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3 rd ed, 2004), p 505; and Robin Creyke and John McMillan, Control of Government Act…
McKay v Commissioner of Police
[2006] WASC 189

…Bohills v Friedman (2001) 110 FCR 388…
Robb v Chief Commissioner of Police
[2005] VSC 310 Para 1

…s from the force.[67] [67]See Webb & Hay v R (1994) 181 CLR 41 at 67; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294; Bohills v Friedman (2001) 110 FCR 338 at 347; cf Minister for Immigration and Multicultural Affairs v Jia Legen (2001) 205 CLR 507.…
WAIX v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 896 Para 11

…The appellant relies, firstly, upon the authority of Bohills v Friedman (2001) 110 FCR 338. There, the Disciplinary Appeal Committee had been provided prior to a hearing with a folder of documents which included findings of the inquiry officer in relation to five charges which were not before the Committee. It was al…
SZEGO v Minister for Immigration
[2005] FMCA 16 Para 7

…pinions previously indicated (c.f. Vakauta v Kelly (1989) 167 CLR 568 at 572, 577, 588, and later cases discussed in Bohills v Friedman (2001) 110 FCR 338).…
Minister for Immigration and Multicultural and Indigenous Affairs v; Applicant VEAL of 2002
[2004] FCAFC 179 Para 18

…s (1994) 48 FCR 57, Day v Douglas [1999] FCA 1444 at [45], Commonwealth of Australia v Day [2000] FCA 474 at [22] – [24] and Bohills v Friedman [2001] FCA 569 (2001) 110 FCR 338 at [20] – [31]. In each of those cases, the Court emphasised the importance of the decision-maker not seeing the prejudicial material wh…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

Johnson v Johnson
[2000] HCA 48 Para 2

…In Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655, at [79], Callinan J drew attention to what, in his Honour’s view, are problems to which some of the statements in Vakauta may give rise: “…that, on one view, the literal application of them may have the consequence that a higher and greater responsibility t…
Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission
[2000] HCA 47 Para 12

…principles also apply to appellate tribunals that are not courts. See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 174 ALR 585 at [12] – [13] per Gleeson CJ. Gaudron and Hayne JJ. At [13], their Honours said in relation to the second type of appeal: “Altho…
Allesch v Maunz
[2000] HCA 40 Para 11

…In Allesch v Maunz [2000] HCA 40, (2000) 173 ALR 648, at [22] – [23], Gaudron, McHugh, Gummow and Hayne JJ identified three different types of appeals which may lie from a primary decision: 1.An appeal in the strict sense, in which the function of the appellate court is “simply to determine whether the decision…
Commonwealth of Australia v Day
[2000] FCA 474 Para 1

…d category of appeals discussed in Allesch v Maunz , or in the sense of a fresh hearing. On appeal, the Full Court in Commonwealth of Australia v Day [2000] FCA 474 did not discuss the nature of the function of a Disciplinary Appeal Committee and therefore expressed no view as to the correctness of Gyles J’s conc…
Madafferi v Minister for Immigration and Multicultural Affairs
[2000] FCA 158 Para 16

…In response to this argument, counsel for the second respondent referred to Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158. In that case, an appeal from a decision to refuse a visa under the Migration Act 1958 (Cth) came to the Administrative Appeals Tribunal, constituted by a deput…
Day v Douglas
[1999] FCA 1444 Para 1

…In Day v Douglas [1999] FCA 1444 at [3], Gyles J expressed the view that an appeal to a Disciplinary Appeal Committee was by way of rehearing. His Honour did not specify whether he intended this to mean a rehearing in the sense of the second category of appeals discussed in Allesch v Maunz , or in the sense of a f…
Vakauta v Kelly
[1989] HCA 44 Para 18

…ground of bias. It is established that a party may waive the right to object to apprehended bias on the part of a decision-maker. In Vakauta v Kelly (1989) 167 CLR 568, the High Court of Australia held that a party to a court proceeding, by not objecting at the trial to remarks giving rise to a reasonable apprehensi…
Barnes v Australian Telecommunications Commission
[1989] FCA 55 Para 13

…ance of its staff. Contrary to the submissions of the Commonwealth, the decision in Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 also provides no authority for the course adopted by Customs in this case before the DAC. In Barnes the evidence relating to penalty was of an entirely different cha…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 9

…a decision-maker. The test to be applied is the same as that expressed by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294: “[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a re…
Hercules v Jacobs
[1982] FCA 136 Para 10

…In Hercules v Jacobs (1982) 60 FLR 82, a former employee of the Australian Telecommunications Commission applied to the Court pursuant to s 5 of the ADJR Act for an order of review in respect of a decision of a disciplinary appeal board constituted under the Telecommunications Act 1975 (Cth). The decision of that b…

Legislation cited in this decision · 8

Public Service Act 1922 (Cth)
56, 61, 62, 63D 5 mentions (from Para 4)
Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth)
14, 3, 4 4 mentions (from Para 15)
Merit Protection (Australian Government Employees) Act 1984 (Cth)
16, 17 3 mentions (from Para 10)
Public Employment (Consequential and Transitional) Regulations 1999 (Cth)
2.19, 4.2, 4.4 3 mentions
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 16)
Telecommunications Act 1975 (Cth)
1 mention (from Para 10)
Workplace Relations Act 1996 (Cth)
1 mention (from Para 9)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 209 of 2000