Bound, Ivor v Fletcher, Leonard George

Re: IVOR BOUND
And: LEONARD GEORGE FLETCHER; ADRIANUS KOELEWYN; ALAN ROSS McASKILL;
THE PROMOTIONS APPEAL BOARD; THE AUSTRALIAN POSTAL COMMISSION AND ROBERT
JOHN PORTEOUS (1984) 1 FCR 239
No. WA G8 of 1983
Administrative Law
6 IR 435

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - judicial review - Promotions Appeal Board of Australian Postal Commission - membership of Board - whether breach of rules of natural justice - bias - whether "intuitive assessment" improper exercise of power - whether evidence to justify decision - error of law

Administrative Decisions (Judicial Review) Act 1977 s.5

Postal Services Act 1975 ss. 47, 50, 54, 56

Administrative Law - Civil service - Promotions appeal - Natural justice - Bias - Suspicion of bias - Unsuccessful applicant for position held by applicant a member of Promotions Appeal Tribunal - Tribunal comprising employer and employee members - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 54(2).

Administrative Law - Promotions Appeal Tribunal - Alleged "improper exercise of power" - Power allegedly improperly exercised in regard to weighing of evidence - Judicial review - Whether available - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5(1)(e).

Administrative Law - Promotions Appeal Tribunal - "Intuitive" assessment of relative efficiency - Whether wrong principle applied - Natural justice - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 54(2).

HEADNOTE

The applicant, an employee of the Australian Postal Commission, was promoted from the position of postman to postal technical supervisor, grade 3. The third respondent, Porteous, successfully appealed against this promotion to the Promotions Appeal Board constituted by s. 56 of the Postal Services Act 1975, which upheld the appeal and appointed Porteous to the position. From this decision the applicant appealed alleging, inter alia, a breach of natural justice on the ground that one of the Board members, McAskill, was himself an unsuccessful applicant for the position, that the Board by rejecting relevant and considering irrelevant evidence improperly exercised its power, and that the Board made a "partly intuitive" assessment of relevant efficiency.

Held: (1) The Board was required to include in its membership employer and employee representatives, and of the latter class the respondent McAskill, to whom objection was taken, was one. McAskill was one of three and not Chairman. The fact that he was an unsuccessful applicant for the position was equivocal and insufficient to engender a suspicion of bias. The fact that McAskill knew Porteous, the successful applicant for the position was to be expected and likewise, did not engender a suspicion of bias.

R v. Wells; Ex parte Ansell (1982) 55 FLR 281; (1983) 43 ALR 41; R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553; R. v. Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262, applied.

(2) Submissions relating to the reception or weighing of evidence in matters relating to efficiency went close to inviting the court to express…