Brennan, F. v John David Enfield

[1985] FCA 216

Re: FRANK BRENNAN
And: JOHN DAVID ENFIELD; PAMELA HARRIS; RAY GALLAGHER; ANGELA KENDAL; PETER
STEPHEN WILENSKI; JOHN VINCENT MONAGHAN AND GRAHAM GORDON GLENN
No. ACT G327 ef 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - Judicial review - Public Service - Provisional promotion - Whether in the selection process the rules of natural justice are required to be observed - Promotions Appeal Committee - Whether Committee failed to take into account relevant considerations - Whether Committee's duty limited to making full enquiries into ground of appeal relied upon by appellant.

Administrative Decisions (Judicial Review) Act 1977

Public Service Act 1922, s.50

HEARING

CANBERRA
#DATE 3:5:1985

JUDGE1

The applicant, Frank Brennan, seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of decisions relating to the promotion 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 and Program Co-ordination Division of the Department of Territories and Local Government. The decisions the subject of the application are -

. The decision of John David Enfield ("the first respondent"), the Secretary to that department, under sub-section 50(1) of the Public Service Act 1922 ("the Act") promoting Mr Guild provisionally to fill the vacancy that had occurred in that office;

. The decision of the Promotions Appeal Committee constituted by Pamela Harris, Ray Gallagher and Angela Kendal ("the second respondents") under sub-section 50(8A) of the Act disallowing the appeal by the applicant against the provisional promotion of Mr Guild; and

. The decision of the Public Service Board constituted by Peter Stephen Wilenski, John Vincent Monaghan and Graham Gordon Glenn ("the third respondents") made under sub-section 50(10) of the Act confirming Mr Guild's provisional promotion.

The vacancy in the relevant office was notified in the Commonwealth of Australia Gazette on 4 August 1983. The notification listed the duties of the office as including the exercise of the statutory powers and responsibilities of the Registrar of Titles, Births, Deaths and Marriages.

The applicant applied for promotion to the vacant office. Before submitting his application he had requested a copy of the Duty Statement relating to the position but, as none was immediately available, he was given a copy of a document headed "Criteria for Position of Clerk Class 11, Registrar's Office". That document, the source or status of which was not further identified, was in the following terms -

"It is suggested that the following criteria should apply in considering applicants for promotion to the above position:

1) thorough knowledge of the relevant legislation, including:

. Real Property Ordinance;

. Real Property (Unit Titles) Ordinance;

. Registration of Deeds Ordinance;

. Registration of Births, Deaths and Marriages Ordinance;

. relevant parts of the Commonwealth Marriage Act;

. all leasing legislation in force in the A.C.T., including the City Area Leases Ordinance, the Leases (Special Purposes) Ordinance, the Leases Ordinance, the Church Lands Leases Ordinance, the Unit Titles Ordinance, the Districts Ordinance, the Conveyancing Act of N.S.W. in its application to the A.C.T.;

. the Adoption of Children Ordinance;

. Commonwealth Stamp Duty legislation;

. Probate and Administration Ordinance;

. Church Trust Properties Ordinance;

. Law of Property (Miscellaneous Provisions) Ordinance;

. relevant parts of the Family Law Act;

. Land Rent and Rates (Deferment and Remission) Ordinance;

. Powers of Attorney Ordinance;

2) knowledge of Supreme Court rules and procedures;

3) knowledge of prerogative writs;

4) knowledge of orders of the Supreme Court, including restraining orders and writs of fieri facias;

5) relevant legal qualifications, or if these are not possessed the person should have sufficiently wide experience in the work area to compensate for the lack thereof;

6) management experience of a high order, including:

. the ability to autonomously carry out the various statutory functions including the preservation of the integrity of the registers;

. experience in the supervision of staff;

. experience in financial management;

. ability to develop policy proposals, including proposals to the Minister;

7) personal qualities, including:

. judgement and maturity of a high order;

. ability to lead and direct staff engaged in a multi-faceted organisation, including the training of staff from time to time;

. ability to effectively liaise with individual members of the legal profession, the Law Society including relevant sub-committees such as the Conveyancing Sub-Committee, senior officers of the Department and the Minister;

. a high level of oral and written fluency;

. initiative and perseverance;

. reliability;

. flexibility and the perception to adopt new ideas and new technology, including ADP and micro film;

. ability to participate in, contribute to and represent the statutory positions at conferences, before the Supreme Court, at meetings with senior departmental officers and to liaise with such groups as members of Parliament, members of the House of Assembly, the Real Estate Institute, the Institute of Valuers and State contemporaries."

On 22 September 1983 the applicant was interviewed by a selection committee comprising Messrs A.R. Hedley, V.F. Martisius and E.J. Devonport, all senior officers within the Department of Territories and Local Government. There were four other applicants for the position who were also interviewed. The affidavit of the applicant sworn 17 September 1984 refers to what took place at his interview. It is unnecessary to refer to this in any detail except to record that Mr Hedley, as chairman of the selection committee, handed to the applicant a document headed "Criteria for Position of Clerk Class 11, Registrar's Office" which was in identical terms to the document the text of which has been set out above.

The selection committee made a report to the first respondent recommending that Mr Guild be provisionally promoted to the office. It may be noted that the provisions of the Act relating to the promotion of officers have since been amended so that in the selection of an officer for promotion consideration shall only be given to the relative efficiency of the officers available for promotion. However, by virtue of sub-section 50(3) of the Act in the form in which it then stood, in the selection of an officer for promotion consideration was to be given first to the relative efficiency (as defined in sub-section 50(4)), and, in the event of an equality of efficiency of two or more officers, then to the relative seniority, of the officers available for promotion to the vacancy. It was not suggested that the selection committee approached their task otherwise than in accordance with the requirements of that sub-section.

On 23 February 1984 the applicant received a copy of that part of the selection committee's report that related to himself.

Pursuant to sub-section 50(1) of the Act the first respondent provisionally promoted Mr Guild to the office. It is common ground that the first respondent made no independent enquiries into the claims of the applicants for promotion to the office but accepted the recommendation of the selection committee and acted upon it. The promotion was notified in the Commonwealth of Australia Gazette, as required by sub-section 50(5) of the Act and the regulations made thereunder, on 1 March 1984.

Sub-section 50(5) of the Act provided that a provisional promotion made under sub-section 50(1) was subject to the right of appeal as provided in section 50. Sub-section 50(6) provided.

"(6) An appeal under this section shall be made in such manner and within such time as is prescribed, and may, subject to sub-section (6A) be made by any officer who considers that he is more entitled to promotion to the vacant office than the officer provisionally promoted, on the ground of -

(a) superior efficiency; or

(b) equal efficiency, and seniority."

The applicant, in the prescribed manner and within the prescribed time, lodged an appeal against the promotion of Mr Guild. It appears, however, that he did not state the ground of his appeal in terms of either paragraph (a) or paragraph (b) of sub-section 50(6). The ground of his appeal was stated to be "superior efficiency and seniority". It is common ground that the applicant was senior in the relevant sense to Mr Guild.

On 9 April 1984 the applicant was provided with a copy of the selection committee's report from which had been deleted material relating to those who applied for the position other than the applicant and Mr Guild. The report included the following paragraph under the sub-heading "Duty Statement" -

"The occupant of this position is required to undertake the following duties:

. Direct and control the activities of the Registrar's Office which comprises the Land Titles Office and the Births, Deaths and Marriages office.

. Develop policy initiatives and implement policy changes to meet changing circumstances and to ensure community demands are satisfied.

. Exercise the statutory powers and responsibilities of the Registrar of: Titles, Births, Deaths and Marriages, overseas marriages, foreign marriages, Ministers of Religion and Foreign Legitimations."

The report also referred to the selection criteria which the committee considered relevant for the position. The criteria there set out differed in a number of respects from those set out in the documents supplied to the applicant by the Department of Territories and Local Government and by the chairman of the selection committee to which reference has already been made. In particular, the criteria set out in the report differed in the following respects -

(a) The reference in the documents previously made available to the applicant (see criterion (2)) to knowledge of Supreme Court rules and procedures was omitted;

(b) The reference in that part of criterion (6) dealing with management experience to "the ability to autonomously carry out the various statutory functions including the preservation of the integrity of the registers" was omitted.

(c) The following sub-paragraphs in criterion (7) - personal qualities - were omitted, namely -

" . ability to effectively liaise with individual members of the legal profession, the Law Society, including relevant sub-committees such as the Conveyancing Sub-Committee, senior officers of the Department and the Minister;

. flexibility and the perception to adopt new ideas and new technology, including ADP and micro film;

. ability to participate in, contribute to and represent the statutory positions at conferences, before the Supreme Court, at meetings with senior departmental officers and to liaise with such groups as members of Parliament, members of the House of Assembly, the Real Estate Institute, the Institute of Valuers and State contemporaries."

The appeal was heard by the Promotions Appeal Committee constituted by the second respondents on 12 June 1984. The applicant put written material before the committee and appeared personally before it. As has already been mentioned, the applicant's appeal was disallowed. He was notified by letter dated 4 July 1984 that his appeal had been unsuccessful and that Mr Guild's promotion had been confirmed by the Public Service Board on 3 July 1984.

On 5 July 1984 the applicant sought a statement of reasons under sectin 13 of the Judicial Review Act in respect of the decision of the Promotions Appeal Committee and a statement was furnished to him on 3 August 1984. On 17 September 1984 the present proceeding was commenced in this Court.

The grounds relied upon, as set out in the amended application dated 15 January 1985, are as follows -

"1. In respect of the decision of the Firstnamed Respondent, that -

(a) A breach of the rules of natural justice occurred in connexion with conduct leading to the making of the decision, namely: -

(i) There was personal bias and interest by a member of the selection Committee recommending the decision, Mr A. Hedley, in achieving the appointment of Peter Noble Guild as Registrar of Titles.

(ii) The selection criteria used by the said Committee was (sic) changed without notice to the Applicant after the Applicant was heard and before the decision was made in relevant and significant respects so as to favour Mr Guild.

(b) The making of the recommendation leading to the decision was tainted by an improper exercise of power, was affected by fraud, made without sufficient material to justify the making of the same and contrary to law by reason of the following:-

(i) It was known to Mr Hedley but not revealed by him to the other members of the Selection Committee or to the Firstnamed Respondent or to the Public Service Board or the Minister for Territories and Local Government that Peter Noble Guild has had his name removed from the Roll of Barristers and Solicitors for disgraceful and dishonourable conduct in that capacity, and that his name at all material times has remained so removed.

(ii) The office of Registrar of Titles required a person in good standing with (inter alia) the legal profession and the judiciary to fill that office as had originally been required by the selection criteria.

2. In respect of the decision of the Secondnamed Respondents:-

(a) That they failed to take relevant considerations into account, as follows:-

(i) Not giving any or any sufficient weight to the original selection criteria.

(ii) Not giving proper weight to the status of Peter Noble Guild as a legal practitioner whose name had been removed from the Roll of Barristers & Solicitors for disgraceful and dishonourable conduct or to that conduct as relevant to the discharge of the functions of the office of Registrar of Titles.

(iii) Failing to take proper account of the requirement of the office of Registrar of Titles.

(b) The said decision was tainted by error of law and improper exercise of power as follows:-

(i) The Secondnamed Respondents failed to accept that being a person in good standing with the Legal profession and the judiciary was an essential attribute for a person to fill the office of Registrar of Titles.

(ii) The said Peter Noble Guild in his appeal statement gave as a referee Mr A Hedley, one of the members of the said Selection Committee and private reference by the Secondnamed Respondents to the said Mr Hedley was an improper exercise of power and was in breach of the rules of natural justice.

3. In respect of the decision of the Thirdnamed Respondents that:-

The decision was based upon the incorrect decisions of the Firstnamed Respondent and/or the Secondnamed Respondents which decisions were defective upon the grounds referred to in paragraphs 1 and 2 above."

During the hearing of the application I gave leave to the applicant to add a further ground namely -

"2(c) That the decision was reached otherwise than in conformity with the requirements of sub-section 50(6) of the Public Service Act 1922."

In the light of the argument addressed in relation to this ground it would be more accurately stated by saying that the decision was reached otherwise than in conformity with sub-section 50(8A) of the Act construed in its context including, in particular, sub-section 50(6).

I shall deal first with the grounds upon which the applicant contended that the decision of the first respondent to promote Mr Guild to the vacant office should be set aside. The Court was asked to find that the allegation of personal bias and interest in a member of the selection committee and the allegation that the recommendation of that committee was affected by fraud had been made out solely on the basis of inference. The Court was asked to infer that the chairman of the selection panel was aware that, by order of the Supreme Court of the Australian Capital Territory made on 13 August 1979, Mr Guild's name had been removed from the roll of practitioners admitted to practise as barristers and solicitors of that court on the ground of his professional misconduct and that he was also aware of the circumstances which led the Supreme Court to make that order as reported sub nom. Re Guild and Re Legal Practitioners Ordinance 1970, (1979) 32 A.C.T.R. 13. The Court was asked to draw those inferences from certain statements that the chairman made during the applicant's interview and from the circumstance that the chairman had legal qualifications. The Court was then asked to draw the further inference that the selection criteria had, at the instance of the chairman, been "tailored to suit" Mr Guild and thus to facilitate a recommendation that he be appointed to the position.

Although no explanation was offered to the Court for the differences between the selection criteria as set out in the selection committee's report and those set out in the documents previously supplied to the applicant, I am unable to discern any basis at all, in the evidence before the Court, for concluding that the differences reflect conduct on the part of the chairman of the selection committee (or, I should add, on the part of any of the members of that committee) of the kind alleged by the applicant. Nor can I discern in the statements made by the chairman any hint of personal bias or interest. The allegations made are of a very serious nature and I can only express my surprise and concern that they should have been made and persisted in in the absence of any more substantial foundation for them than was put forward on behalf of the applicant. There is nothing in the material before the Court to sustain the allegations made or, indeed, to support a claim that the committee or any member of it was guilty of any impropriety in carrying out the committee's task.

The decision of the first respondent was also attacked on the ground that there had been a failure in the selection process to observe the rules of natural justice. In my opinion there was no obligation on the first respondent to observe the rules of natural justice in selecting the person to be promoted to the vacant office. He chose to appoint a selection committee to interview the applicants and make a recommendation to him but he was not bound to do so. The applicant has, in any event, failed to persuade me that the first respondent or the selection committee acted unfairly in any respect in considering his application. I should add a further comment in deference to the argument put by counsel for the applicant. In so far as that argument relied on the reference in the selection committee's report to the duty of the holder of the office to develop policy initiatives, being a requirement, so it was submitted, to which the applicant's attention had not been directed in the selection criteria made available to him by the Department of Territories and Local Government, that aspect of the duties of the office was referred to in the notification of the vacancy in the Commonwealth of Australia Gazette and it was the subject of considerable debate between the applicant and the selection committee. There is, therefore, no foundation for the suggestion that the committee took into account a matter upon which the applicant had no adequate opportunity to comment.

The applicant has also failed to persuade me that the making of the decision was an improper exercise of the power conferred upon it by reason that the selection committee failed to take into account any relevant matters which had been brought to its attention or of which it was otherwise aware or ought to be assumed to have been aware.

The applicant's claim to have the decision of the first respondent set aside therefore fails. I should add that I have thought it appropiate to deal on their merits with the arguments put on behalf of the applicant concerning the decision of the first respondent to promote Mr Guild to the vacant office. There is, however, much to be said for the view advanced on behalf of the respondents that the only remedy available to a person contending that the process of selection for promotion miscarried was to avail himself of the appeal process provided for in section 50 of the Act.

I turn now to a consideration of the grounds upon which it is said that the decision of the Promotions Appeal Committee should be set aside.

It was submitted that the Promotions Appeal Committee failed to take a relevant consideration into account in that it did not give any or any sufficient weight to what are referred to as "the original selection criteria". That reference is to the document headed "Criteria for Position of Clerk Class 11, Registrar's Office" the text of which is set out in extenso earlier in these reasons.

At the outset it must be said that, in so far as the ground relied upon asserts that the committee failed to give sufficient weight to the criteria referred to, it does not state a relevant ground in law upon which the decision of the committee might be set aside. What weight was to be given to those criteria was a matter for the committee - it is not a matter for the consideration of this Court on an application under the Judicial Review Act.

Included in the material forwarded by the Department of Territories and Local Government to the Promotions Appeal Committee was a document setting out selection criteria. It appears that that document set out the criteria in the same terms as appeared in the report of the selection committee to which reference has already been made. It also appears that the Promotions Appeal Committee considered what criteria it should adopt in determining the questions which arose before it. As the statement of its reasons shows, the committee determined that the criteria set out in the document forwarded to it by the Department "reasonably reflected the requirements of the position and accordingly adopted them". There is nothing to suggest that the Promotions Appeal Committee was, or should be assumed to have been, aware that a document setting out selection criteria differing in some respects from those which it adopted had previously been made available to the applicant. The applicant was, however, well aware of the differences between the document copies of which had been supplied to him by the department and by the chairman of the selection committee and what appeared in the selection committee's report but he did not consider them to be of such significance that he should draw the attention of the Promotions Appeal Committee to them or make any reference thereto either in his oral or written statements in support of his appeal.

In my opinion the above circumstances do not establish that the Promotions Appeal Committee failed to take into account a relevant consideration.

It was also submitted that, although the Promotions Appeal Committee had before it a copy of the judgment of the Supreme Court of the Australian Capital Territory relating to the matter, it failed to give proper weight to the status of Mr Guild as a legal practitioner whose name had been removed from the roll of practitioners or to the conduct of Mr Guild as found by the Supreme Court. The applicant's complaint was that, while the committee made specific reference to the matter in considering its assessment of Mr Guild's experience in financial management and of his reliability, no reference was made to it in considering Mr Guild's judgment and maturity. It is beyond question, as the submission on behalf of the applicant acknowledges, that the committee had regard to the judgment of the Supreme Court. It is not for this Court to determine what weight should be attached to the matters referred to by the Supreme Court: that was clearly a matter for the committee. But the fact that the committee did not specifically refer to those matters in that part of its reasons which dealt with Mr Guild's judgment and maturity does not, in my view, establish that the committee failed to take into account a relevant consideration.

I am not persuaded that any of the other grounds set out in the amended application in relation to the decision of the Promotions Appeal Committee has been established or that the Committee failed to make full inquiries into the claims of the applicant.

It remains to consider the ground added by leave during 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 50(8A) of the Public Service Act 1922 construed in its context including, in particular, sub-section 50(6).

Reference has already been made to the circumstance that the applicant did not state the ground of his appeal in terms of sub-section 50(6) of the Act or sub-regulation 109(2) of the Public Service Regulations made under the Act. That sub-regulation required that an appeal state specifically the ground of appeal, being either superior efficiency or equal efficiency combined with seniority. The applicant stated his ground of appeal to be superior efficiency and seniority. No question was however raised that by reason of that circumstance the appeal by the applicant had not been duly made.

According to the applicant's affidavit (paragraph 40) the following exchange took place during the hearing before the Promotions Appeal Committee.

". . . the Chairman mentioned that I had based my appeal on seniority and superior efficiency. She said I clearly had seniority but mentioned that seniority was combined with equal efficeiency. She enquired whether I considered my efficiency was superior to that of Mr Guild. I replied that because of my extensive knowledge of and practical experience with the legislation covering the duties of a Registrar of Titles, I did claim a superior efficiency."

The statement of reasons signed by the members of the committee records the following -

"The Chairman drew to your (i.e. the applicant's) attention the fact that while your appeal statement gave your grounds of appeal as being 'superior efficiency and seniority' you had considerable seniority over Mr Guild. You were given the opportunity to change your ground of appeal to equal efficiency and seniority, however you declined to take this opportunity preferring to base your appeal only on superior efficiency."

Although counsel for the applicant submitted to the contrary, I do not find these statements inconsistent. I have no doubt that the applicant, a practising lawyer with 28 years' experience in the Australian Public Service, well appreciated that the purport of the chairman in raising the matter with him was to clarify the basis upon which he asserted that his appeal should be allowed.

The statement of the committee's reasons concludes by stating that, having regard to the matters mentioned in the statement and after making full enquiries into the claims of the applicant and Mr Guild in accordance with sub-section 50(8A) of the Act, the committee unanimously decided that the applicant had not demonstrated that he had superior efficiency. The appeal was accordingly disallowed. The question is whether the committee, which was comprised of persons without legal qualifications, erred in dealing with the matter on the basis put to it by the applicant and, if so, whether the court should, in the circumstances, intervene.

For the applicant it was submitted that, it being common ground that the applicant had greater seniority than Mr Guild, the Promotions Appeal Committee was under a statutory duty to consider, not the question to which the applicant asserted that an affirmative answer should be given namely whether he was superior in efficiency, but the question whether there was an equality of efficiency of the applicant and Mr Guild for the vacant office. That duty, it was submitted, the committee failed to perform.

For the respondents it was submitted that the duty of the committee was to determine the appeal lodged by the applicant, an appeal which, having regard to its terms and the attitude which the applicant took when the matter was raised with him by the committee, was on the sole ground of superior efficiency. The committee's task, it was submitted, was to make full enquiry into that claim of the applicant and, unless the applicant established that ground, the committee's duty was to dismiss the appeal.

Sub-section 50(8A) of the Act required, in the circumstances of this case, that the Promotions Appeal Committee make full enquiries into the claims of the parties to the appeal, that is to say, of the applicant and Mr Guild, and determine the appeal. To what does the sub-section refer by the use of the phrase "the claims of the parties"? In my opinion the sub-section is referring, in the case of an appellant, to the claim by him that he is more entitled to promotion to the vacant office than the officer provisionally promoted rather than to the ground, be it superior efficiency or equal efficiency and seniority, on which the appellant relies. It is into the claim as so understood that the Promotions Appeal Committee is bound to make full enquiry.

In relation both to the question just discussed and the further question whether it was for the applicant to establish before the Promotions Appeal Committee that he was more entitled to promotion to the vacant office than Mr Guild, counsel for the respondents referred to sub-section 50(8F) of the Act which, although that sub-section had no application to the proceedings before the Promotions Appeal Committee as the applicant was the only appellant, it was submitted supported the views for which the respondents contended. That sub-section was addressed to the situation where a Promotions Appeal Committee considered that two or more appellants "have established the grounds of their appeals".

Although the language in which sub-section 50(8F) was cast tends to support the view that it was for the applicant to establish the ground of appeal on which he specifically relied, the language of that sub-section was, in my view, somewhat inconsistent with the requirement in sub-section 50(8A) that the committee make full enquiries into the claims of the parties and determine the appeal. The better view is, I think, that, although the Promotions Appeal Committee was entitled to look to the applicant to formulate his ground of appeal and to support it by relevant material, in the final analysis it was for the committee to make appropriate enquiries into the question whether the provisional promotee or the applicant was more entitled to promotion to the vacant office and to determine the appeal accordingly.

The Promotions Appeal Committee expressed its conclusion in terms that the applicant had not demonstrated that he had superior efficiency. For the committee to express its conclusion in those terms is understandable having regard to the applicant's conduct. Nonetheless, the language employed does not, in logic, exclude the possibility that the committee was of the view that the applicant and Mr Guild were of equal efficiency for the vacant office and that it was unable to choose between them on that account. Experience suggests that the cases will be rare indeed in which a deliberative body will find it impossible to reach a conclusion that one person has superior efficiency to another in relation to the discharge of the duties of an office particularly where, as is the case here, the office is a senior and responsible one. Yet one cannot rule out the possibility, remote as it may be, that the second respondents found themselves in this position in considering the respective claims of the applicant and Mr Guild.

The question remains what course should now be adopted. The applicant contends that the decision should be set aside and the matter remitted for further consideration by the second respondents or by another Promotions Appeal Committee appointed for the purpose. I do not, however, propose to adopt that course at this stage.

Having regard to the circumstance that this ground was not referred to either in the original application to the Court filed on 17 September 1984 or in the amended application filed on 15 January 1985, I propose to make no final order in the matter at this stage but to adjourn the hearing for a short period to enable the second respondents, if they be so advised, to place material before the Court clarifying the basis of the committee's decision to disallow the applicant's appeal.

The matter will stand adjourned until 31 May 1985 with the parties having liberty to apply to vary that date if they so desire.