Busby, B. v The Chief Manager - [1987] FCA 707

Re: BRET BUSBY
And: THE CHIEF MANAGER, HUMAN RESOURCES DEPARTMENT; AUSTRALIAN
TELECOMMUNICATIONS COMMISSION; KEVAN WILLIAM ROSS; PATRICK JOSEPH RILEY;
LEONARD PETER ANDERSON; WILLIAM MICHAEL STRONG and THE STATE MANAGER,
AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. WAG 103 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - judicial review - termination of extended probationary appointment - decision under sub-s.40(5) of Telecommunications Act 1975 - whether Review Tribunal has authority to review such decision - untenable submissions put by Commission on jurisdiction of Review Tribunal for industrial reasons - undesirability of such a course - alleged breach of rules of natural justice - failure to take into account relevant considerations - error of law and other grounds.

Telecommunications Act 1975 (Cth) ss. 4, 21, 39, 40

Administrative Decisions (Judicial Review) Act 1977

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396

R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461

Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546

National Companies and Securities Commission v. The News Corporation Ltd (1984) 156 CLR 296

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299

Colpitts v. Australian Telecommunications Commission (1986) 70 ALR 554

HEARING

PERTH

#DATE 16:12:1987

Mr B. Busby appeared on his own behalf

Counsel for the Respondents: Ms. C. Francas

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The application is dismissed.

There will be liberty to apply on the question of costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 24 June 1985 Bret Busby was engaged as a Clerk, Class 1, by the Australian Telecommunications Commission. The appointment, which was probationary, was terminated on 29 May 1986. Busby now seeks review of that termination and three associated decisions.

The evidence discloses Kafkaesque confusion and complexity in the decision-making process. Before turning to the facts however it is useful to set out the statutory framework which regulates appointments to the staff of the Commission.

Statutory Framework
The Australian Telecommunications Commission is established as a statutory corporation by ss.4 and 21 of the Telecommunications Act 1975 (Cth). It is given by the Act various powers, any of which may be delegated to its Chief General Manager or to any officer or employee (s.33).
Section 39 confers upon the Commission a power "to appoint as officers such number of persons as it thinks necessary for the purposes of this Act".
By sub-s.39(2) a person shall not be appointed as an officer unless the Commission is satisfied, inter alia, that he is a fit and proper person to be an officer.
Initially appointment is probationary for a minimum period of 6 months and may be terminated by the Commission at the expiry of that time or during any extension of it.
Probationary appointments and terminations are regulated by s.40 which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Busby, B. v The Chief Manager

Details

AGLC: Busby, B. v The Chief Manager & Ors [1987] FCA 707
Case: [1987] FCA 707
Decision Date: 16 DECEMBER 1987

CaseChat Overview and Summary

Busby B. sought judicial review of the Chief Manager's decision to terminate his extended probationary appointment under section 40(5) of the Telecommunications Act 1975. The case came before the court to determine whether the Review Tribunal had the authority to review such a decision, and to address several other grounds of challenge, including alleged breaches of natural justice, errors of law, and procedural unfairness. The applicant also argued that the Review Tribunal's consideration of the matter was undesirable for industrial reasons.

The court found that the Review Tribunal did not have the authority to review the Chief Manager's decision under section 40(5) of the Act. The tribunal's jurisdiction was limited to certain types of decisions, and this particular decision did not fall within their purview. The court further found that the submissions made by the Commission on the tribunal's jurisdiction for industrial reasons were untenable, and that it was undesirable for the tribunal to consider such issues. The court also dismissed the applicant's claims of procedural unfairness, finding that the decision-maker had considered relevant factors and had not erred in law.

Based on these findings, the court dismissed the applicant's application for judicial review. The court did, however, grant liberty to apply on the question of costs, allowing the applicant to seek reimbursement for any costs incurred in the proceedings. The final orders were to be settled and entered in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The application is dismissed.

There will be liberty to apply on the question of costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.