Brennan, F. v Enfield, J.D.

[1985] FCA 361

BETG.EEM : FRANK ERENNAN

Applicant	,-
l

AND: J O H N DAVID ENFIELD

First Respondent

P-mma HAERIS. RAY GALLAGHEX

and ANCELA XENDAL

Second Respondents

PETER STEPHEN C-ITLENSKI. JOHN

VINCENT MONAGHAN and G P ! X

GDREON GLENN

Third Respondents

MINTJTE OF ORDEF?

.-

JUDGE MAKING ORDER : Neaves J.

- -

DATE OF ORDER : 31 July 1985

WHERE M.DE	: Canberra
THE COURT DRDFRS THAT:

1. The decision of the Promotions Appeal Committee

constituted by the second respondents made on 25

J u l y 1984 under sub-section 50(3A1 of the Public

Service Act 1922 disallowing the appeal by the

C

2 .

2. The decision of the Public Service Board

constituted by the third respondents made on 3

July 1984 under sub-section SO(10) of the said

Act confirminu the provisional promotion of

Peter Noble Gulld he ser aside.

3 . The appeal bp the applicant against the

provisional promotion of Peter Noble Guild be

treated as an appeal on the ground	of	equal
efficiency and seniority and be heard by a

Promotions Appeal Committee constituted by

persons other than the second respondents.

4. The application be otherwlse dismissed.

5. The respondents pay one half of the applicant's

costs of the application excluding any costs

relatinu to the hearin? on 30 May 1985. l

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court, Rules.

4

EETTEELI : FRANK EREblIxIAIJ

Applicant

JOHN fiKQID EMFIELD

I Flrst Respondent

PAMELA HARRIS, RAY GALLACHER

and ANGEL?. KmlPAL

Second Respondencs

P E W . STEPHEN WILENSKI, JOHN

VINCENT MONAGHAN and	GRAHAI-l
GORDDM GLENN

nird Respondents

On 3 May 1985 I announced the conclusions which I had

reached upon the application bp Frank Brennan ("the applicant")

under the Administrati:re Ijecisions (Judicial Review) Act 1977

for an order of review in respect of decislons relating to the

promotlon under the Public Service Act 1922 of Peter Noble

Guild to an office of Clerk. Class 11. Third Division,

Registrar's Office. Canberra. a position within the Policy

Frogram Co-ordination Dlvision of the Department of Territorlcs

I

-. J

I

In m far a5 the applicatlon souuht an order settinu

aside the decision of .Trsrhn David Enflzld. the first respondent.

under sub-section 50(1) of the P u b l i c Servlce Act 1922 ("the Act") promoting Mr Guild provisimally to fill the vacancy that had occurred In that office I held that, the application falled.

-4nokher of kin? decisions in relation CO whlch an order

of review was souaht was a decisiun of the Promotions Appeal

Committee constituted by Famela Harris, Ray Gallacrher and

Aflarela Kendal. the second respondents, under sub-section S O ( R A )

Of the Act disallowing the appeal by th2 applicant against Mr

Guild's provisional promotion. In relation t o that decislon I

concluded that none of the ?rounds sec out in the amended

application filed on behalf of the applicant had been

established.

I

I then went on to consider the further ground added bp

leave durlng the course of the hearing, namely that the

decision of the Promotions Appeal Committee was reached

otherwise than in conformity with the requirements of

sub-section SO(8A) of the Act construed in its content

l

includinu. in particular. sub-section 5 0 ( 6 ) . In relation t o

that qrnund I concluded that, notwithstanding that the applicant had Iclaimed that he was superior in efficiency t o Mr

i

.

3 .

Guild for the subject office. it was the riuty of the Promotions

Appeal Committee to make appropriate enquiries Into the !

question whether the provlrional pknmotee or the applicant. xas

, I .*

more enticllsd. t o - promotinn r o tt-tv ?lacant office’fz& to

. -5 ”+

determine the a p p e a l w c o r d m x l y . lc bcln? commnn around that

the .Ip?licant had g r s d t e r j en io r i tp than tlr Guild. h+ %as

mtl t l ed t o mcceed In his appeal i f , ~ f k c making f u l l

enquiries into the claims che plrties, the committee was of

opinlon that the 3pplicant was euual in efficiency to M r Guild for promotion t o the vacant o f f ice. i thcn pointed to the circumstancs that the Promotions Appeal Committee had expressed

its conclusion in terms that the applicant had not demonstrated

that he had superior efficiencll and that; the conclusion as so

expressed did not. In loglc. exclude the possibility that the

committee was of the view that the applicant and Mr Guild were

of equal efficiency for the vacant office, it being unable to

choose between them on that account.

Having regard to the circumstance that. the pomt had

not been raised in the original dpplication to the Court filed

on 17 September 1984 or in the amended application filed on 15

January 1985 but was a ground added by leave during the course

l

of the hearing. I considered that the appropriate course was to

make no final order in the matter at that staqe but to adjourn

the hearing for a short period to enable the second

respondents. if they were so advised. to place material before

I

S .

Each of the jecond respondents filed .an affidavit

I dealinu with their deliberations clpon the appeal and each was

cross-examined on that affidavit. I am satlsfled thac each of

the witnesses was frank in the answers Tiven to the questions

.asked and that there had been no prior consultatlnn or

collaboration between them as to the evidence they would qive.

The picture that emerge5 from the evidence is that the

commlttee did no% make any decision upon the question whether

the applicant's efficienc:J for the vacant Infficr was equal to

that of Flr Guild. -4 rindinu to that effect. combined with the

applicant's seniority. would have entitled him t o succeed on

his appeal. The committee considered that the only question

which it had to determine was whether the applicant was

superior in efficiency to Mr Guild for the vacant office and it

decided that question decisively against the applicant. The

committee took the view that that was the only question for its

decision because of the insistence by the applicant that that

was the issue upon which e wished the appeal t o he determined.

As I said in the reasons for judqment previously delivered, the

committee's approach was clearly understandable having reqard

to the applicant's conduct. but. the result. is that the committee

failed to determine the question which. in the final analysis.

was the question which the statute Icommitted to it, namely

5 .

-.

whether the provisional .prnmotee or the, applicant waz mdre

entitled to prombtian to the vacant Office.

to r a r ry out the dut7 that va,j entrusted to it by the statute.

In ordmary circums:inct?s such a conclusion would lead t o an

order ssttina aside the decision of the cmnmittee .md the

decision of the Pub l i c Service Eoard coni’irminu Mr Guild‘s

provisianal promotion and directing that the appllcant’s

s p p e a l , treated as an appeal on the qrsund of equal efflciency

and seniority. be re-heard. However. for the respondents it

was submitted that, in all the circumstances, the Court should

exercise its dlscrrtion to deny relief to the applicant.

Counsel nubmitted that, althouqh the committee did not

collectively determine the issue. the evidence established that

each of the second respondents had individually formed the view

that Mr Guild was of superior efficiency to the applicanr. for

the vacant office so that it was clear Ghat the result of their

deliberations would have been had those deliberations taken

place.

This approach has a certam Attractiveness as the

I

evidence of the second respondents supports the conclusion that

each had individually formed the view that. Mr Guild was

superior efficiency n t o the applicant. However,

notwlthstandlnq this superficial attractiveness I think it

Would not be appropriate to exercise my discretion against

n.

the wmmltt?e Cel~bec,~te upon khe luestim wher-her ne was of

cquai efflcj.enc:J to Mr C u l l d . ~t does not seem t o be 3 proper -

3ubstitute for that deliberation far the C a u r t now t o conclude

what the result of thac dellberation would ha7e been.

The decision of the second respondent; t o disallow the

appeal by the appllcant aqainst the provisional promotion of Mr

Gulld and the decision of the thlrd respondents confirming that

provisional promotion are, therefore. set aside. I order that

the appeal by the applicant be treated as an appeal on the qround of equal efficiency and seniority and be heard by a Promotions Appeal Committee constituted bp persons other than

the second	respondents.	The applicaclon	is	therwise
dismissed.

On the question of costs. I have had regard to the

circumstance that the applicant did not succeed on any of the

grounds taken In the application filed on 17 September l984 or

in the amended application filed on 15 January l985 and that,

in relatlon to the grounds alleging serious impropriety. no

material was placed before the Court to support the claims

made. I have also taken into account. that It was larTely. if

not solely, as a result of the applicant's own conduct that the

Promotions Appeal Committee adopted the roursc which it did and

which led it into e r m r . I note. further. that the hearlnq

that was fixed by sgreement for 30 Map 1985 was l a r g e l y

abor t ive because the a p p l i c a n t was not hen ready to p roceed .

Tlkinq thorje matters i n t o a c c o u n t , I t h i n k the a p p r o p r i a t e

order f o r costs is that the respondents pay one half of the

a p p i i c a n t ' s c o s t s e r c l u d i n c r any c o s t s r e f e r a b l e r;o che hear in?

on 39 May l sR5.

I c e r t i f y that t h i s a n d

the p recedinu 6 n q e s are

a t r u e copy of the Reasons

for JudTment h e r e i n of the

Honourable	Mr	J u s t i c e
~~
Neaves .

Associa te

Dated: 31 Ju1:r 1985

I

I