Brell, A.m. v Willmat, E.P

[1988] FCA 812

~~...

C A T C H W O R D S

ADMINISTRATIVE LAW - inquiry into alleged misconduct by a

teacher in the Commonwealth Teaching Service - application for

question to be tried	interim injunction to restrain the inquiry proceeding - serious
ADMINISTRATIVE LAW - judicial review - engaging in conduct for	the purpose of making a decision - whether a decislon

of appeal in the exercise of jurisdiction

PRACTICE AND PROCEDURE - judicial revlew - relevance of right

Administrative Decisions (Judicial Review) Act 1977

- Commonwealth Teaching Service Act 1972

Commonwealth Teaching Service _- Regulations

(Australian -- Coarse Grain Pool Pty. Ltd. v. B a r l e y a r k e t a -

Boar3 of Queensland (1982-83) 46 ALR 398-

America~anamid - C O ~ V . Ethicon Ltd - ( 1 9 7 5 ) A.C. 39

Tableland Peanuts Pty. Ltd. v. Peanut Marketing Board (1983-84 )	-
52 ALR 561	-~ -..

- Epitoma Pty. Ltd v. Amieu (1984) 54 ALR 730

Castlemalne Tooheys Ltd. v. - State of South Australia ( 1 9 8 6 ) 6 7

ALR 5 5 3 ) .

Gourgaud v. Lawton and Others ( 1 9 8 2 ) 42 ALR 117

Gunaleela and Others v. Mlnister for Immigration and Ethnic

Affairs (unreported, 21 August 1987)

‘R. - v. Board of Appeal; Ex parte Kay ( 1 9 1 6 ) 2 2 CLR 183

- Enderby Town Football Club Limited v. Football Association

Limited	( 1 9 7 1 ) Ch.	591
McNab v. Auburn Soccer Sports Club	Limited	( 1 9 7 5 ) 1 NSWLR 54

Marine Hull and Liability Insurance Co. Limited v. Hurford and - _-

Another ( 1 9 8 6 ) 6 7 ALR 77

Ansell v. Wells ( 1 9 8 2 ) 4 3 ALR 41

=G. Jacobsen and Another ( 1 9 8 5 ) 6 0 ALR 313

--

Chamberlain v. Banks and Others (G53 of 1985, Woodward, Davles

& Beaumont JJ.)

Reid v. Australian Telecommunications Commlssion	and Others
- -	( G 1 1 6 7 1987, Wilcox J.)
Canberra.
G.A.	Flick, Natural Justice

ANTHONY MARTIN BRELL

V.

ERIC PAUL WILLMOT AND OTHERS

A.C.T. No. G33 of 1988

Coram:	Gallop J.
Date:	9 August  1988.
IN THE FEDERAL COURT	OF AUSTRALIA )

\

AUSTRALIAN CAPITAL	TERRITORY	)
) NO. ACT G33 Of 1988

DISTRICT REGISTRY

GENERAL DIVISION i

BETWEEN:  ANTHONY MARTIN BRELL

Appllcant

AND :  ERIC PAUL WILLMOT

Flrst Respondent

AND :  GORDON RICHARD LLOYD TWIST

PATRICIA ANGELE LUDOVICI and

JOAN MARGARET DUNN

Members of an advlsory panel
established to conduct an
Inquiry pursuant to Section
35(2) of the Commonwealth
Teachlng Service Act, 1972 as

amended.

Second Respondents

O R D E R

.

Judges Mgkinq Order : Gallop J.

Date of Order	: 9 August 1988.
_ -
: Canberra.

Where - Made

THE COURT ORDERS THAT: ..

( 1 ) The application instituted by Notice of Motion

dated 3 August 1988 be dismissed.

-	Note:	Settlement and entry of orders 1 s dealt wlth in
Order 36 of the - Federal Court Rules.
-	IN THE	FEDERAL COURT OF AUSTRALIA )

I

AUSTRALIAN CAPITAL TERRITORY i

No. ACT G33 of 1988

DISTRICT REGISTRY	)
GENERAL DIVISION

BETWEEN: ANTHONY MARTIN BRELL

Applicant

AND :  ERIC PAUL WILLMOT -

First Respondent

AND :	GORDON RICHARD LLOYD TWIST PATRICIA ANGELE LUDOVICInd JOAN MARGARET DUNN
Members of an advlsory panel established to conduct an Inquiry pursuant to Section 35(2) of the Commonwealth
Teachlng Service Act,  1972 as
amended.

Second Respondents

--	Coram: Gallop J.
- Date: 9 August 1988.

REASONS FOR JUDGMENT

GALLOP J.

By application dated 3 August 1988 the applicant

has applied under s . 6 of the Administrative Decisions
(Judicial Review) Act 1977 (the Judicial Review Act) to
review the conduct in whlch the respondents have engaged,-:
are engaging and propose to engage in an Inquiry into
alleged misconduct by the applicant pursuant to s.35(2) of
the Commonwealth Teaching Servlce Act 1972.

By Notice of Motion dated 3 August 1988 returnable

on 4 August 1988, the applicant applied for an interim
injunction to restrain the respondents from proceeding
further with an Inquiry into the said alleged misconduct.

The Motion was heard at short notice and I reserved my

decision in relatlon to the applicatlon for the interlm

injunction.

The applicant is a school teacher in the

Commonwealth Teaching Service. The first tespondent is the

Chief Education Officer of the Australian Capital Territory

Schools Authority (the Authority). The second respondents

are officers of the Authority appointed by the first

respondent to conduct an Inquiry into alleged mlsconduct by

the applicant.	There are seven allegations of misconduct
alleged against the applicant, all	of a sexual nature and
Involving children attending the	Scullin Primary School in
the Australian Capital Territory.	The various allegatlons
of misconduct are alleged to have taken place	on various
dates between early 1988 and 21 July 1988.	.

When the application for the interim injunction

came on for hearing, I was informed that the Inquiry being

conducted by the second respondents had already proceeded on

1 , 2 and 3 August 1988 and was contlnuing even while I was

hearing the application for an interim injunctlon to

restrain the second respondents from proceeding further with

the Inquiry. After	some discussion counsel for the	-
- -

respondents gave an undertaking that he Inquiry had been
suspended and would not be resumed until the Court had
delivered its decision in relation to the application for
the interim injunction.

The evidence in support of the application was an

affidavit by the applicant sworn 4 August 1988 and an
affldavit by the applicant's solicitor, John Brian Stinson,

sworn the same day.	The following facts are established
from that evidence.

On 28 July 1988 the applicant received a document entitled Notice of Inquiry and was informed that the Inquiry having been established, the second respondents would be

conducting that Inquiry on Monday, 1 August 1988.	The
notice also set out the seven allegations of sexual
misconduct referred to above.	On the afternoon of Monday,

1 August 1988 the applicant and his sollcitor met the

respondents and at that Inquiry they were informed	of the
procedure which the second respondents proposed	to adopt for
the purpose of holding the Inquiry.	They were told that
witnesses would be intervlewed	by the second respondents in

I

one room, that the applicant would be located in	an
adjoining room and that the people in both	rooms could see

and hear each other through a television monitor.	They were
further informed that the proceedings would be recorded	on
video tape.

With regard to legal representation, the applicant

and his solicitor were told that the solicitor would not be

allowed to be present in either of those rooms whilst -

- -

witnesses were being interviewed, but that he could	remain
in another part	of the premises and the applicant could seek

advice from his solicitor whenever he wanted to obtain such

advice.

The timetable was also related to the applicant

and his solicitor.	That timetable was that on Tuesday,
2 August 1988 the second respondents would interview	the

teachers and principal from Scullin Primary School between
the hours of 11.00 am and 2.30 pm; further, that on
Wednesday, 3 August 1988 the second respondents proposed to

interview all the pupils involved except one glrl who was to

be away all week; and further, that on Thursday, 4 August

1988 the second respondents would interview the applicant at

9.30 am. On being so informed, the applicant's solicitor

asked whether he could be present in the same room as the

applicant but that request was refused by the firstnamed	of
the second respondents (Gordon Richard Lloyd Twist).
Mr Twist said "We only want to get at the truth.	We can
give Tony assistance with whatever he	wants to say and do
not see the need for you to assist him".	There was further

discussion and protest by the solicitor and the applicant.

The applicant's request for the solicitor to be able to

listen to recorded tapes of the evidence was also rejected.

On the morning of 2 August 1988 the applicant

asked at the Inquiry whether his solicitor could see and

hear copies of the video recordings. That request was

refused. He asked whether copies of the video recordings would be given to him so that he could discuss them with hi=

- -

solicitor and he was told that if copies of the video

recordings were to be provided it would only be at the

conclusion of the Inquiry. He was similarly advised in

respect of a request for a transcript of the video

recordings.

The Inquiry proceed-ed on Tuesday, 2 August 1988

adopting the procedure foreshadowed by the second

respondents. They interviewed teachers and the principal.

After each interview was	concluded the applicant was
permitted to leave the room in which	he was watching and

listening to the interview on the television monitor, and to

seek advice from his solicitor. He was thereafter allowed

to put questions to the teachers who had been interviewed by

the second respondents. At the end of the proceedings on
2 August 1988 the applicant read to the second respondent a

further request that he be afforded legal representation and

outlined the difficulties that	he was having in conducting
the matter on his own behalf.	He was refused permission to

have his solicitor present and before the Inquiry was
adjourned until 3 August 1988, Mr Twist announced "It is the
Authority's wish that this Inquiry not be legalistic and
that therefore any counsel will not be directly involved'but

will be able to be called on, he will have to sit outside,

and I will stop proceedings any time Tony wants to go out

and talk to h i s counsel".

I also find that the applicant's solicitors made

two written requests dated 2 and 3 August 1988 respectively

that the applicant be permitted to have legal representation at the Inquiry, but no permission has ever been granted. QI - _.

3 August 1988 the foreshadowed procedure was followed and
the second respondents proceeded to interview at least some
of the persons referred to in the seven allegations of
misconduct. The applicant was unrepresented.

The Inquiry being conducted by the second

respondents is provided for in Division 6 - Dismissals and
Punishments - of Part I11 - THE COMMONWEALTH TEACHING

SERVICE - of the Commonwealth Teaching Service Act 1972.

Division 6 provides for certain punishments	to be imposed by
the relevant Authority where an officer	has been guilty of
misconduct.	Those punlshments range in ascending order of
severity from a	caution to dismissal.

The conduct of an Inquiry is provided in s.35(2)

which reads:

"(2) In an inquiry for the purposes of the last

preceding sub-section, a formal hearing is not required

but the officer shall be informed of the nature of the

alleged misconduct and	given an opportunity of
furnlshing a statement in relation	to the matters

alleged to constitute the misconduct."

An appeals system has been establlshed by ss.36

and 37 of the Commonwealth Teaching Service Act 1972.

Section 36 is in the following terms: .

"36.(1) Where, under section 34 or sub-section

(1) of section 35 -
(a)	an officer is flned a sum exceeding FOUK dollars, has his salary or position reduced or is retired

or dismissed; or

(b)	a determinatlon is made that an officer be not
granted, or be not granted until the expiration of
a specified period, the whole or a part of an

increase in salary,

the officer may appeal	to the Disciplinary Appeal
Board.	- -

( 2 ) On the hearing of an appeal under this

section, the Disciplinary Appeal Board may	take
evidence on oath or affirmation.

( 3 ) The regulations may prescribe the manner in

which, and the time within which, appeals may be made
under this section and the manner in which the hearing
of appeals so made shall be conducted and may include
provision for or in relation to the summoning of
witnesses, the production of documents, the taking of

evidence on oath or affirmation and the administering

of oaths or affirmations.

( 4 ) The Disciplinary Appeal Board shall hear each

appeal submitted to it under this section and may
confirm, vary or set aside the decision against which

the appeal is made.

(5) The decision of the Disciplinary Appeal Board

is final and the relevant authority shall take such

action as is necessary to give effect to the decision.'' Regulations have been made prescribing for the

conduct of such appeals. Quite detailed provisions are set out in Part IV - Disciplinary Appeals - of the Commonwealth Teaching Service Regulations relating to notification of

disciplinary action and of the officer's right of appeal
(reg.35), the procedure for lodging appeals and fixing the
date, time and place of hearing of the appeal (reg.36) and

other procedural matters.

The Disciplinary Appeal Board may inform itself in

such manner as it thinks fit, determine its own procedur5,

is not bound by the rules of evidence, and is to proceed

without regard to legal forms or solemnity (reg.37).
Appeals shall be heard in public unless otherwise	directed
(reg.38).

The Chairman of the Disciplinary Appeal Board has power to summon witnesses and to require persons to give
evidence on oath or affirmation and to produce documents, - -

and penalties are provided for failure to attend as required
by a summons and other sanctions (reg.39).

The very important provision regarding legal representation at the hearing of such appeals is reg.42,

which reads :

"42. At the hearing of a disciplinary appeal or at

the taking of evidence under regulation 40, the
appellant or the relevant authority may appear

personally or be represented by counsel, a solicitor,

or agent, who may examine witnesses and may address the

Disciplinary Appeal Board on behalf of the appellant or the relevant authority."

It was submitted on behalf of the applicant that

the respondents are denying natural justice to the applicant
in failing to permit that he be legally represented during

the conduct of the Inquiry. Counsel for the applicant

referred to the seriousness of the allegation and the severe penalties which could attach to a finding that the applicant had misconducted himself, e.g. dismissal, which would

terminate the applicant's career as a teacher.

The proper approach, in considering whether an interlocutory injunction should be granted, is first to

inquire whether there is a serious question to be tried, and

then to determine the matter on the balance of convenience

(Australian - Coarse Grain Pool Pty. Ltd. v. Barley Marketing

Board of Queensland (1982-83) 46 ALR 398; American Cyanamid -

-- Co. - v. - Ethicon Ltd (1975) A.C. 39; - Tableland - Peanuts Pty.

Ltd. v. Peanut Marketing - - Board (1983-84) 52 ALR 561; - Epitoma - -

- Pty. Ltd v. Amieu (1984) 54 ALR 730; - Castlemaine -- - Too-

Ltd. v. State of South Australia (1986) 67 ALR 553).

He submitted that the serious question to be tried - --

is whether the applicant is being denied natural justice in that respect and that if questions of convenience arise for

consideration, the applicant has	been suspended from duty
and no prejudice could flow to the respondents	or indeed to
any students within the purview	of the Teaching Service.

Counsel for the respondents raised a threshold

question as to whether this Court has jurisdiction to review
the conduct of the respondents under s.6 of the Judicial

Review Act.	The submission was that the respondents are not
engaging in conduct for the purpose	of making a decision and

therefore the conduct of the Inquiry 1s not reviewable.

Counsel relled upon the decision of Davies J. in Gourgaud

v. Lawton and Others ( 1 9 8 2 ) 4 2 ALR 117. The facts in that

-

case taken from the headnote are that he applicant applied for a position as Legislative Research Specialist Grade 3 in

the Parliamentary Library. The Parliamentary Library 1s

itself a Department of State known as the Department of the

Parllamentary Library.	The Parliamentary LibKaKlan is the
Departmental Head.	The Parliamentary Heads are the

Presiding Offlcers of Parliament, viz the Speaker of the

House of Representatives and the President of the Senate. Section 9 of the Public Servlce Act 1922 provides, inter’ alia, that appointments of officers of the library shall be

made by the Governor-General on the joint recommendatlon	of
the President and the Speaker. Upon the positlons being advertised an interviewing panel of four from within the
library was established.	The duty of the panel was to
assess the applicants for the position and	to make a

recommendation to the Parliamentary Librarian. The panel	-	-
recommended another officer in preference to the applicant

and others.	The applicant purported to appeal to the
Presiding Officers against their	decision to accept the
recommendations of the panel.	Following this appeal the
Acting Parliamentary Librarian forwarded a report	o the
Presiding Officers.	The Presiding Officers replled to the
applicant that their findlng was adverse to her.	At no

time, however, had the Presidlng Offlcers made a

recommendation or report to the Governor-General concerning

the appointment. Following the	reply from the Presiding
Officers the applicant applied for an	order of review of

that "decision" on the grounds that there was a denlal of

natural justice.

In the course of hls judgment dismlsslng the

appllcation, Davies J. considered the operation of s.3(3) of

the Judicial Revlew Act.	It states that where a provision
is made by an enactment for the making	of a report or

recommendatlon before a declsion is made in the exerclse of

a power under that enactment or under another law, the

making of such a report or recommendation shall itself be

deemed for the purposes	of the Act to be the making of a
declslon.	Davles J. held that the making of a report or
recommendation is not itself a	declsion for the purposes of
the Judiclal Review Act unless provision had been made by an
enactment for the making	of the report or recommendation.
He pointed out that in Gourgaud's	case there was no

enactment provlding for the making of a report or

recommendation by the Permanent Head of the Department of

the Parliamentary Library or by an,interviewing panel. Her

held therefore that the steps which had been taken with
respect to the vacated position dld not come within s.3(3)
of the Judicial Revlew Act.

.-

1 1 .

Applying that reasoning to the present case, counsel for the respondents submitted that the second respondents are not empowered to make a report or

recommendation to the relevant authority. Their function is

simply to hold an Inquiry as directed by the relevant

Authority, wlthout requiring a formal hearing, to inform the

officer of the nature of the alleged misconduct and to give him an opportunity of furnishing a statement in relation to the alleged matters. In expanding that primary submission, counsel for the respondents argued that the role of the

second respondents was simply to collate evidence relevant

to the alleged misconduct	and put it before the relevant
Authority for decision.

In my opinion the respondents' submission in so

far as it is based upon the scope of s.6(l)(a) expanded by

s . 3 ( 3 ) of the Judicial Review Act is correct. But	s.3(5) of
the Judicial Review	Act appears to me to take up the running

for the purposes of the present application. It provides:

"(5) A reference in this Act to conduct engaged in

for the purpose of making a decision includes a

reference to the doing of any act or thing preparatory

to the making of a decision, including the taking of

evidence or the holding of an inquiry or

investigation."

The operation of s . 3 ( 5 ) was considered by a Full Court of this Court (Sweeney, Lockhart and Gummow J J . ) in

Gunaleela and Others - v. Minister for Immigration and Ethnic

Affairs (unreported decision of 21 August 1987). In that case it was submitted that in order to fall within the te& of s . 6 even when read with the xpansive provisions of

sub-s.3(5) the person engaged in the anterior or preparatory

. _ . .

12.

conduct must be the person who has	made or will make the
decision which will attract the operation	of the Judicial
Review Act.	The Full Court went on to say:

"AS a matter of first impression, there is much

force in the respondents' submissions. To speak of a

person engaging in conduct for the purpose of making a

decision would ordinarily be read as identifying

antecedent conduct by the decision-maker. On the other

hand, it is undoubtedly true that much preparatory 'conduct' will be engaged in by administrators other

than the individual upon whom the ultimate power	of
decision is conferred.	To read the legislation as the

respondents urge might deprive it of the utility which as remedial legislation it might be expected to have."

The Full Court did not find it necessary to

resolve the issues that arise as to the construction of s . 6
and sub-s.3(5) of the Judicial Review Act for the purposes

of that case.

It seems to me that for the purposes of the

present case, the second respondents, in conducting the
Inquiry are "doing (an) act or thing preparatory to the

making of a decision, including the taking of evidence,

(and) the holding of an inquiry or investigation".	It is
true that they do not have to make the decision but in	my
opinion s . 6 should not be read	down too strictly.
Accordingly I reject the respondents' challenge to the

Court's jurisdiction.

The substantial submission on behalf of the

respondents was that although the rules of natural lustice
apply to the conduct of the Inquiry by the second
respondents, such rules do not include the right to legal

I

representation in the circumstances of this case. Counsef-

relied upon the structure of the disciplinary provisions of

the Commonwealth Teaching Service Act 1972 as supplemented
by the Commonwealth Teaching Service Regulatlons made
thereunder, and in particular the express reference in
reg.42 to the right of the appellant or the relevant
authority on the hearing of an appeal to appear personally
or to be represented by counsel, solicitor or agent.

That the rules of natural justice apply to the

conduct of the Inquiry was a proper concession on behalf of the respondents. A s Mason J., as he then was, said in Kioa

v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR

321 at 345-6:

"The law has now developed to a point where it may be
accepted that there is a common law duty to act fairly,
in the sense of according procedural fairness, in the
making of administrative declslons which affect rlghts,
Interests and legltimate expectations, subject only to

the clear manifestation of a contrary intentlon. It

seems that, as early as 1911, Lord Loreburn LC

understood that this was the law when he spoke of the

obligation to 'fairly listen to both sides' being 'a

duty lylng upon every one who decides anything' (Board I,

of Educatlon v. Rice [l9111 AC 179 at 182) ...

And later at p.347:

"The critical question in most cases is not whether the

principles of natural justice apply. It is: what does

the duty to act fairly require in the circumstancesrof
I,

the particular case? ...

lawyer may be founded either upon common law principles or The right to be represented by a duly qualified upon some statutory or procedural rule. At common law the right to be represented by a duly qualified lawyer stems from the right of a party to appear in person. To the extent that this right exists it stems from the principles	I
of agency or the rules of natural justice (G.A. Flick,	-	-

Natural Justice). It is to be noted that in relation to the

present Inquiry being conducted by the second respondents,

they have chosen to conduct the Inquiry in such a way as to

permit the applicant to be "present" in the sense that he is
able to view and hear the proceedings by television monitor

and to question the witnesses.

The second respondents are not precluded by the
legislation from conducting their Inquiry in that way, but

there is nothing in the legislation which requires them to

do so. Indeed, it is expressly provided that a formal hearing is not required as previously stated. All that	is
necessary is that the	officer be informed of the nature of
the alleged misconduct and	given an opportunity of
furnishing a	statement in relation to the matters alleged
to constitute the misconduct.	The second respondents have

complied with both obligations. The fact that,they have gone further than they needed to have gone does not mean that the applicant has ever had the right to appear in

person at the Inquiry.

Considering the question as a matter of statutory construction, I think that there 1s much force in the

respondents' argument that the express entitlement to appear

personally and be represented by counsel, solicitor or agent

conferred by reg.42 demonstrates a contrary intention in

relation to inquiries under s.35 of the Commonwealth

Teaching Service Act 1972. It must be remembered that the

Inquiry is investigative in nature only and those officers

who are appointed to conduct the Inquiry have no power to I - -

make any decision which will affect he officer who is the
subject of the Inquiry.

There is strong authority that domestic tribunals

have a dlscretion whether to permit legal representation
where the rules relating to the hearing of charges say

.	nothing about representation. It is a matter for the
tribunal - see for example the dictum of Griffith C.J. in
- R. v. Board of - Appeal; Ex parte Kay ( 1 9 1 6 ) 22 CLR 183 at
185; Enderby Town Football - Club Limited v. Football
Association Limited ( 1 9 7 1 ) Ch. 591 per Lord Denning MR at
605; and McNab -v. Auburn Soccer Sports Club Limited - ( 1 9 7 5 ) 1

NSWLR 54 at 60-61.

In my view, therefore, neither as a matter of

common law nor statutory construction were the second

respondents obliged to permit the applicant to be legally

represented at the Inquiry so far and are likewise not

obliged in the further conduct of the Inqulry. It is not

and has not been procedurally unfalr to refuse the applicant the right to have legal representation in the conduct of the Inquiry.

What I have said disposes of the application fbr

an interim injunction. In deference to the arguments of

with the final submission put on behalf of the respondents	counsel for the respondents, however, I shall deal shortly	that as the applicant will be entitled to appeal if he 1s
found gullty of misconduct and is fined a sum exceeding four
dollars, has his salary or position reduced, or is retired
or dismissed, such an appeal is the appropriate remedy in L

--

the present circumstances and not revlew under the Judicial

Review Act. Counsel relied upon Marine Hull and Liability thls Court, dismissing an application brought by the --

-- Insurance Co. -- Limited v. Hurford and Another ( 1 9 8 6 ) 67 ALR

77.   This was an appeal from a decision of a single judge of

appellant under s.6(l)(a) of the Judicial Review Act. The

respondent, pursuant to s.62(1 )(a), (b) and (c) of the

Insurance Act 1973 (Cth), issued certain directions agalnst

the appellant.	The respondent admltted that neither before
nor after making the	decision to give those directions did

the respondent give to the appellant an opportunity to be heard upon the question as to whether or not the directions should be given. His Honour had found that the appellant

was not entitled to rellef under the Judicial Revlew Act

because s.63 of the Insurance Act evinces a leglslatlve

intentlon that in the event of the Treasurer givlng
directions under s.62 without affording natural justlce, the
dlrectlons are not invalid In law but are merely susceptible
of challenge under the provisions of s.63 of the Insurance

Act.

A Full Court of this Court (Fox, Davies and

I

Morling JJ) held that s.63 of the Insurance Act when read

and effective right of appeal on matters of fact and law to	with the Administrative Appeals Tribunal Act affords a full
an insurer served with a notice under s.62 of the Insurance
Act, and that was the appropriate remedy, not review under the Judicial Review Act.
In the event of the appropriate penalty being Imposed, the applicant has a full right of appeal to the --: Disciplinary Appeal Board and the Disciplinary Appeal Board may confirm, vary or set aside the decision against which
the appeal is made. This is a full and effective appeal
process. The fact that the right of appeal is to a
specifically constituted tribunal and not o a court is a
circumstance which may lead to a construction that the right
of appeal is not necessarily the exclusive avenue of appeal
but it is only one of the matters to be taken into account, as Morling J. observed in Marine H u l l and Liability Insurance Co. Limited v. Hurford and Another, supra, at
- - -
p.91-2.

In my opinion the submission on behalf of the

respondents is correct. The applicant has a right of appeal

from the decision of the Chief Education Officer for the

Australian Capital Territory following the Inquiry which is presently being conducted. I am of the opinion that s.36 of the Commonwealth Teaching Service Act 1972 provides the

exclusive remedy available to the applicant in due course.

For this reason also I dismiss the application for review under s.6 of the Judicial Review Act.

There have been a number of instances in this

Court where applications for review have been dismissed st

an early stage because of the existence of alternative and

exclusive remedies (see, for example, the comments in Ansell - --

v. - _ Wells (1982) 43 ALR 41 per Lockhart J. at pp.64-67; Woss -

v. Jacobsen and Another (1985) 60 ALR 313; Chamberlain v. - - -- -

--- -	Banks and Others (G53 of 1985, Woodward, Davies h Beaumont
JJ.); and _ _ Reid v. Australian Telecommunications Commission - - --
- and Others (G116 of 1987, Wilcox J.) - - - -
The only other observation that I think may be of assistance to the parties is in respect of the expressed intention of the second respondents to interview the

. 18.

applicant in relation to the allegations of misconduct.	In
my view that course would not be appropriate and Indeed
would not be authorised under the	relevant provisions of the
Commonwealth Teaching Service Act.

I repeat that for the purposes of their Inquiry

the second respondents are required to do no more than
inform the applicant of the nature of the alleged misconduct
and to give him an opportunity of furnishing a statement in
relation to the matters alleged. They have already complied

with both obligations by the service upon him	of the Notice
of Inquiry.	Of course, the applicant would be entitled to
full particulars of the alleged misconduct and if he	claims
that he is prejudiced by the inadequacy	of such particulars

in the Notice of Inquiry, he should seek such particulars

from the second respondents in an appropriate way.

The application instituted by Notice of Motion

dated 3 August 1988 is dismissed.

I certify that this and the .

preceeding seventeen pages are

judgment herein of his Honour

a true copy of the reasons for

Mr Justlce Gallop.

Dated:  9 August 1988.