Bound, Ivor v Fletcher, Leonard George

[1984] FCA 70

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 its own view of the relative efficiency of the two candidates, and this it could not do.

(3) The reference in the Board's statement of reasons to a "partly intuitive" assessment of relative efficiency suggested a conclusion reached without reasoning, but taken in context it meant no more than that the members of the Board purported to bring their own knowledge and experience of the industry, and the impressions made by the candidates, into account in their assessment.

(4) The application accordingly failed and would be dismissed.

HEARING

Perth, 1984, March 13, 30. #DATE 30:3:1984

APPLICATION.

Application for order of review pursuant to Administrative Decisions (Judicial Review) Act 1977.

I. A. Wilson, for the applicant.

C. Bahemia, for the first and second respondents.

R. L. Le Miere, for the third respondent.

Cur. adv. vult.

Solicitor for the applicant: I. A. Wilson.

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

Solicitors for the third respondent: Dwyer Durack & Dunphy.

P. W. NICHOLS

ORDER

1. The application be dismissed.

2. The applicant pay the third respondent's costs of the application.

3. There be no order as to costs of the first and second respondents.

Application dismissed.

JUDGE1

This is an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") to review a decision of the first three named respondents who, for relevant purposes, constituted a Promotions Appeal Board pursuant to s.56 of the Postal Services Act 1975 ("the Act"). The first respondents and the second respondent, the Australian Postal Commission, appeared by counsel but took no active part in the proceedings.

The applicant, Mr. Bound, is employed by the Australian Postal Commission Service as a postman at its Kalamunda branch. On 29 June 1982 he applied for promotion to the position of postal technical supervisor grade 3. He was promoted to that position but, by reason of the provisions of s.54 of the Act, his promotion was provisional and subject to appeal. The third respondent, Mr. Porteous, appealed against the provisional promotion.

On 20 January 1983 the Board allowed Mr. Porteous' appeal on the ground that, though he and the applicant were of equal efficiency, he was senior to Mr. Bound. This was a reference to sub-s.54(2) of the Act which permits an appeal against a provisional promotion "on the ground of superior efficiency or of equal efficiency and seniority".

In seeking a review of the Board's decision, the applicant relied upon several of the grounds made available by s.5 of the Judicial Review Act. I shall deal with these in the order in which they were argued, noting that the applicant abandoned ground 2 of his application.

At the forefront of the application was a contention that a breach of the rules of natural justice had occurred in connection with the making of the decision under review. The breach was said to arise by reason of the following circumstances. One member of the Board was Alan Ross McAskill. Pursuant to s.56 of the Act a Promotions Appeal Board is constituted by a chairman, an officer nominated by the Commission and "an officer nominated by the organisation that is, by virtue of the regulations, the appropriate organisation in respect of the appeal". This is a reference to the relevant industrial organisation.

Mr. Bound's complaint is that Mr. McAskill was himself an unsuccessful applicant for the position of postal technical supervisor grade 3 to which he (Mr. Bound) was provisionally promoted, that as an unsuccessful applicant he was subordinate to Mr. Porteous, that he was a colleague of Mr. Porteous and that in the circumstances he should have disqualified himself from membership of the Board. The applicant amplifies this complaint by alleging that he had no knowledge that Mr. McAskill was to be a member of the Board until immediately before the hearing and that the Board did not afford him a reasonable opportunity to object to its composition or inform him that he could object.

Mr. Bound does not contend that there was any actual bias on the part of Mr. McAskill but he argues that there was a reasonable likelihood of bias and that the principle that justice should not only be done but be seen to be done was vitiated by Mr. McAskill's membership of the Board.

Sub-section 56(3) of the Act precludes the nomination of an officer as a member of a Board in relation to a provisional promotion to a vacant position "if that officer has himself been provisionally promoted to the vacant position or has himself appealed against the provisional promotion to that vacant position". The sub-section did not operate to preclude Mr. McAskill from sitting as a member of the Board. The matter has to be dealt with according to the ordinary rules of natural justice though sub-s.56(3) may throw some light upon the intention of the legislature in this regard.

Although there was no allegation of actual bias, it is desirable to mention an affidavit sworn by Mr. Porteous and filed in the proceedings. In that affidavit Mr. Porteous deposed to the fact that at the time of the hearing of the appeal there were, at the Perth Mail Exchange, four postal technical supervisors grade 1 of whom he was one and Mr. McAskill another. The supervisors worked shifts and their only contact with each other was when shifts overlapped. Mr. Porteous contended that there was no relationship between him and Mr. McAskill "beyond that of fellow workers". Those statements were not challenged by the applicant.

Of course there have been many decisions dealing with the notion of bias in connection with the decision of a court or of some quasi-judicial tribunal. The debate as to whether there must be shown a real likelihood of bias or whether it is enough that a suspicion of bias may reasonably be engendered was laid to rest by the High Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 where the court said at pp.553-554:

"Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having given thought about it, has not formed any views or inclination of mind upon or with respect to it".

That passage was referred to with approval by a differently constituted court in the Reg. v. Watson; ex parte Armstrong (1976) 136 CLR 248. At p.262 the court said:

"The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle".

The question is - was there anything in the fact that Mr. McAskill was a member of the Promotions Appeal Board constituted to deal with the appeal by Mr. Porteous against the promotion of Mr. Bound that might cause a suspicion reasonably to be engendered in the mind of Mr. Bound that the Board or a member or members of it might not have brought to the resolution of the appeal fair and unprejudiced minds? In my view the answer is no. The composition of a Promotions Appeal Board under the Act follows a fairly typical pattern, with a representative of the employer and a representative of the employees' union. Mr. McAskill was one member of a board of three and was not the chairman. The fact that he was an unsuccessful applicant for the position under appeal seems to me quite equivocal. The fact that he knew Mr. Porteous and worked in the same mail exchange is not enough to engender a suspicion of bias. Indeed it is of the very nature of a tribunal that comprises employer and employee representatives that parties appearing before them are likely to be known to one or other of those representatives.

Reg. v. Wells; ex parte Ansell (1981) 55 FLR 281 concerned an appeal against the provisional promotion of a public servant. In support of an application for a writ of certiorari to quash the decision of a Promotions Appeal Committee, it was contended that one of the members of the committee was unsuitable to be the departmental nominee because she was a subordinate of a departmental officer who had been involved in the selection of the provisional promotee and who was also the author of an unfavourable departmental report on the prosecutrix. Connor J. rejected that contention and, although the matter went on appeal (Ansell v. Wells (1982) 43 ALR 41), that part of his Honour's judgment was not challenged.

In my view the applicant has failed to make good this ground of his application.

The next ground is based upon para. (e) of sub-s.5(1) of the Judicial Review Act. It contends that the decision of the Board was "an improper exercise of the powers conferred upon the respondents by virtue of the provisions of Sections 47 and 50 of the Postal Service Act 1975". The ground is amplified by contending that the respondents took irrelevant considerations into account and failed to take relevant considerations into account in determining the efficiency of Mr. Bound and Mr. Porteous and thereby failed to make a full inquiry into the applicant's claim.

As presented in argument, this ground came close to inviting the court to express its own view of the relative efficiency of Mr. Bound and Mr. Porteous. This of course it cannot do.

By letter dated 28 January 1983 the Board wrote to Mr. Bound furnishing a statement of reasons for the decision it had reached. The letter referred to the material available to the Board and then set out the criteria by which it judged the efficiency of the applicants. In the application of those criteria, the Board drew no distinction between Mr. Bound and Mr. Porteous, though in two instances that was a majority decision as indeed was the determination of the Board that the appeal be allowed.

In view of the very favourable assessment made of Mr. Bound by the original selection committee, he was entitled to feel some dismay at the finding of equal efficiency. But it was the function of the Board to make that assessment on the basis of the material before it.

The applicant addressed some criticism to a passage at the conclusion of the Board's statement of reasons in which the following appears:

"In addition to assessing the efficiency of people against specific criteria the Board allows room for an overall and partly intuitive assessment of relevant efficiency".

The use of "intuitive" was perhaps not the happiest, tending to suggest an assessment reached without any process of reasoning. But I agree with counsel for Mr. Porteous that, taken in context, it meant no more than that the members of the Board (at any rate the majority) purported to bring to bear their own knowledge and experience of the industry and the impression made on them by the applicants.

The fourth ground was that there was no evidence or other material to justify the Board's decision, in particular that there was no evidence that Mr. Bound and Mr. Porteous were of equal efficiency. Though formulated as an independent ground, it was clear from the submissions of the applicant's counsel that it added little to what had gone before. In view of the Board's statement of reasons and, in particular the listing of specific criteria with an assessment of efficiency, it cannot be maintained that there was no evidence to justify the decision of the Board. As I suggested during argument, it might have been more satisfactory had the Board indicated the basis upon which it departed from the decision made by the selection committee. But its failure to do so is not a ground for reviewing its decision.

The final ground of appeal alleged that there was an error of law in that the Board wrongly applied the tests in s.50 of the Postal Services Act and wrongly made an overall and partly intuitive assessment of relative efficiency. As argued, this ground added nothing to the previous grounds and cannot succeed.

The applicant has failed to satisfy the court that there is any reason why the decision of the Board should be reviewed under the provisions of the Judicial Review Act.

The conclusion I have reached makes it unnecessary for me to determine another matter raised by counsel for Mr. Porteous. It concerned delay in bringing the application to a hearing. The Board's decision was made on 20 January 1983 and its reasons for decision were conveyed to the applicant by letter of 28 January. The application to this court was made on 3 March 1983 and was followed by a directions hearing on 21 March. There was then a period of 5 months during which no step was taken in the matter. On 25 August 1983 further directions were given. The matter did not come on for hearing until March 1984 though hearing dates were available long before then. Mr. Porteous has been occupying the position under appeal since 24 January 1983 at a salary of nearly $4,000 a year more than the position of postal technical supervisor grade 1. It was not contended that if the application succeeded Mr. Porteous would lose that additional salary during the time it had been paid; but the effect of the court's decision would be to remove him from a position he had occupied for some 15 months. Counsel for the applicant said that the delay was explicable by reason of certain administrative steps suggested to the Commission. These were not fully explained. If I had been persuaded that one or more of the grounds of the application had been made out, I would have had to consider very closely the extent to which the remedies under the Judicial Review Act are discretionary. But in the event this does not arise.

The application will be dismissed.