Busby, B. v The Chief Manager, Human Resources Department, Australian Telecommunications Commission

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. G3 of 1988
FED No. 627
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Burchett(1) and Lee(1) JJ.

CATCHWORDS

Administrative Law - Judicial review - Termination of probation under Telecommunications Act 1975, s.40 - Scope of statutory provision for review of termination of probation - Statutory interpretation - Construction by reference to context, consistency and fairness rather than the meaning the provision would bear read in isolation - Construction confirmed by explanatory memorandum and second reading speech - Principle of functus officio - Rules of natural justice - Importance of particular statutory framework - What is required by natural justice in the case of a termination of a period of probation.

Telecommunications Act 1975, ss.40, 61, 62, 65.

HEARING

PERTH

#DATE 28:10:1988

Appellant: Mr. B. Busby

Counsel & Solicitor for the Ms. C. Bahemia, Australian
Respondent: Government Solicitor

ORDER

(1) The appeal be dismissed.

(2) The costs of the appeal be reserved.

MINUTE OF SUPPLEMENTARY ORDER
The appellant pay the respondents' costs of the appeal.

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

JUDGE1

This is an appeal from a judgment of the Court constituted by a single Judge (French J.) dismissing an application by Bret Busby ("the appellant") for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") and ordering that the appellant pay two thirds of the respondents' costs of the application. The orders of review were sought in respect of four decisions concerning the termination of the appellant's appointment, on probation, as an officer of the Australian Telecommunications Commission ("the Commission"). The four decisions may be identified as follows:

(a) The decision made on or about 29 May 1986 by Kevan William Ross, acting as the Manager, Staffing Service Section of the Human Resources Department of the Commission, that the appellant's probationary appointment be terminated;

(b) The decision made on or about 7 July 1986 by Athol John Westcott, the Chief Manager of the Human Resources Department of the Commission, disallowing an appeal by the appellant against such termination;

(c) The recommendation made on or about 11 September 1986 by a Review Tribunal constituted by Patrick Joseph Riley, Leonard Peter Anderson and William Michael Strong that the decision to terminate the appellant's appointment should stand; and

(d) The decision made on or about 18 September 1986 by the State Manager of the Commission to accept the recommendation of the Review Tribunal.

The State Manager of the Commission is a respondent to the appeal as are Messrs. Westcott, Ross, Riley, Anderson and Strong.

The Commission is established by s.4 of the Telecommunications Act 1975 (Cth) ("the Act"). The Commission may appoint as officers such number of persons as it thinks necessary for the purposes of the Act (s.39(1)). Section 40 of the Act provides:

"(1) Unless the Commission, in a particular case, otherwise directs, the appointment of every officer shall be on probation for a period of 6 months commencing on the day on which the officer commences duties in pursuance of his appointment.

(2) A person appointed as an officer on probation remains a probationer until his appointment is confirmed or terminated in accordance with this section.

(3) The Commission may, at any time during the period of 6 months, terminate the appointment.

(4) As soon as practicable after the expiration of the period of 6 months, the Commission shall -

(a) confirm the appointment;

(b) terminate the appointment; or

(c) direct that the probationer continue on probation for such further period (not being a period exceeding 6 months) as the Commission determines.

(5) Where the Commission directs that a probationer continue on probation for a further period, the Commission may confirm or terminate the appointment of the probationer at any time during that further period and, if it does not confirm or terminate the appointment before the expiration of that period, shall do so as soon as practicable after the expiration of that period.

(6) Where the appointment of a probationer is to be terminated, the Commission shall notify the probationer in writing of the reasons for the termination of the probation.

(7) The regulations shall make provision for and in relation to the review of a decision of the Commission under paragraph (4)(b)."

The appellant was, on 24 June 1985, appointed as a Clerk, Class 1 in the service of the Commission. The appointment was on probation for a period of 6 months. During the whole of the period he was employed by the Commission he worked in what is known as the Perth South District, one of a number of geographically based groups. Initially, he was employed in a unit of that district designated "Customer Billing 1". Later, he was transferred to a position of Assistant Credit Officer in a unit designated "Credit Group 31". Both of those units were in what was known as "East Group" of the Perth South District. He was subsequently transferred back to "Customer Billing 1". He also spent some time working as an Assistant Credit Officer in a unit designated "Credit Group 21" in the South Group of the Perth South District. After six months, his probationary period was extended to 24 June 1986, the latest date permissible under s.40(4)(c).
Mr. Ross, who held the substantive position of Senior Recruitment Officer in the Staffing Service Section of the Commission's State Branch but was then acting as Manager of the Staffing Services Section, on or about 29 May 1986 determined, pursuant to s.40 of the Act, that the appellant's probationary appointment be terminated. He made that decision upon consideration of a number of reports which had been made by officers of the Commission whose duties required them to supervise the appellant's work performance. Mr. Ross also had before him material indicating that the appellant had been counselled as to his work performance on a number of occasions, and by a number of different officers of the Commission.
Subsequently, and at the appellant's request, Mr. Westcott reviewed Mr. Ross's decision. The appellant submitted a document of 12 pages entitled "Appeal Against Decision". Mr. Westcott requested, and received, a report dated 18 June 1986 from Mr. Glendinning, the Personnel Manager for the Perth South District. In preparing that report, Mr. Glendinning interviewed a number of officers of the Commission who had been supervisors of the appellant. Mr. Westcott decided that the termination of the appellant's appointment should stand. The appellant was notified of that decision on 7 July 1986.
The appellant then requested that the decision be reviewed by a Review Tribunal. The Tribunal was constituted by Messrs. Riley, Anderson and Strong. It conducted its own independent inquiry and examination into the grounds for terminating the appellant's appointment. The members of the Tribunal interviewed the appellant on 11 August 1986, at which time he presented them with a submission of 19 pages in support of his case. The Tribunal also interviewed the supervisors and other officers who had been involved with the appellant, after which it again interviewed him on 27 August 1986. The Tribunal also recommended that the decision to terminate the appellant's appointment should stand. On 12 September 1986 that recommendation was accepted both by Mr. Westcott and by the State Manager.
An order of review was sought in respect of each of the four decisions identified above. Very many grounds were argued before the learned primary Judge, but all were rejected. From the dismissal of his application by the Judge, and from the costs order then made against him, the appellant now appeals to the Full Court.
The first question raised, on the face of what occurred in this matter, is whether the reconsideration by Mr. Westcott of the termination of the appellant's appointment, and the review by the Review Tribunal and consequent decision by the State Manager, were authorized by the statute.
Whether Mr. Westcott had power to reconsider the earlier decision of Mr. Ross depends on the true scope of the powers conferred on the Commission by s.40. Some powers are, of their nature, exhausted once they are exercised. In the circumstances of this case, it is unnecessary to decide whether it was open to the Commission (whether by the same or another delegate) to reconsider the decision of its delegate Mr. Ross, or whether it was barred from doing so by the principle of functus officio. See Re Herman Sawmill Ltd and Minister of Finance (1972) 24 DLR (3d) 476 at 483. The decision made upon reconsideration was the same as the original decision and, as will appear, neither decision was vitiated by error of law or procedural impropriety.
The position of the Review Tribunal involves a serious problem of construction of the section. In terms, it provides for a review of a decision of the Commission only where the decision is one made "under paragraph (4)(b)". The learned trial Judge thought that was fatal to any contention that the Review Tribunal had power to review a decision made after a continuance of the probation pursuant to subsection (4)(c). He considered the decision could only have been made under subsection (5). But if so, the section produces a quite capricious result; where a probationer's appointment is terminated under subsection (3) after five months, or if it is terminated under subsection (5) after an extended period of seven months, he will have no right of appeal whatever, but where it is terminated precisely at the end of six months under subsection (4)(b), he will have a right of review under subsection (7). It has not been suggested that there is any objective to be served by discriminating between terminations in this way. In all three cases, subsection (6) requires reasons for the termination to be furnished in writing, a requirement the most obvious explanation for which is to enable the probationer to consider whether he should apply for a review of the decision, and to facilitate such a review if it is applied for. In other sections of the Act, similar provisions appear to have those objects (see ss. 61(5) and 62(2) in respect of certain decisions following a successful appeal against a conviction, and s.65(7) and (8) in respect of certain decisions in relation to reappointment after a situation deemed to involve a resignation.)
The absurdity produced by a construction of subsection (7) which makes it inapplicable to cases arising under subsections (3) and (5) is avoided if those subsections are regarded as merely qualifying subsection (4)(b). On that view, the section requires an appointment to be on probation for a period of six months (see subsection (1)) and authorizes a decision to be made terminating the appointment as soon as practicable after the expiration of the period of six months (subsection (4)(b)), but qualifies this central provision by permitting the termination to take place earlier under subsection (3) and by permitting the period of probation to be continued, so that the termination may take place later, under subsection (5). When the probation is continued, it is the same probation which is so continued, not a new probation which is commenced. There is only one appointment, which it is envisaged will normally be subject to confirmation or termination at the end of six months of probation. Termination takes place under subsection (4)(b). Whatever the date of the termination, whether advanced or delayed by virtue of subsection (3) or subsection (5), the termination itself is still the termination contemplated by subsection (4)(b).
If subsection (7) is read in the context of the other provisions of the section understood in this way, a termination is always a decision under subsection (4)(b), though the time of the making of the decision to terminate may have been varied pursuant to subsection (3) or subsection (5). All probationers are alike in being "officers" appointed to the "service" for which the Act provides (see ss.3(1), 38 and 39), and all alike are entitled to a review, should there be a termination of any of their appointments.
It may be illogical to speak of a decision deferred by virtue of subsection (5) as "a decision . . . under paragraph (4)(b)", but as Dixon C.J. said in Commissioner for Railways (NSW) v. Agalianos (1955) 92 CLR 390 at 397, "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed." See also the dissenting judgment of Mason J. in K. & S. Lake City Freighters Proprietary Limited v. Gordon & Gotch Limited (1985) 157 CLR 309 at 315, where he referred to "the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context." If that mode of interpretation is truly followed, there must be occasions when it leads to a passage being understood in a sense it would not bear upon a reading in isolation. This is not a shiny new rule, but an approach embedded in the law at least since Lord Coke: see Craies on Statute Law 7th ed. (1971) 96-101. Here, the context, the apparent purpose and policy of the provision, and its consistency and fairness require that subsection (7) be understood to be referring to all decisions to terminate a period of probation as decisions under subsection (4)(b).
The foregoing analysis does not depend at all upon aids to interpretation extrinsic to the Act itself. But if subsection (7) should be seen as merely ambiguous and uncertain, so as to justify the use of appropriate extrinsic material, resort to the Explanatory Memorandum relating to the Bill by which it was inserted in the section (Statute Law (Miscellaneous Provisions) Bill (No. 2) 1984) is sufficient to confirm the construction propounded in these reasons. The relevant paragraph of the Explanatory Memorandum states:

"Proposed new sub-clause 40(7) provides that regulations may make provision for and in relation to the review of a decision of the Australian Telecommunications Commission under paragraph 40(4)(b). The purpose of this amendment is to enable officers on probation to have rights of appeal against decisions to terminate the probationer's appointment. The amendment is to parallel similar appeal rights which relate to excess officers and retirement on inefficiency, incapacity or similar grounds in sections 55 and 56 of the Act."

Similarly, when the Bill came before the Senate Senator Grimes, the Minister who moved its second reading, said (Senate Hansard 16 October 1984, p 1710):

"The amendments being made to the Telecommunications Act 1975 are to allow an officer on probation to appeal against a decision to terminate the appointment. The amendment is to allow similar appeal rights that apply in other situations."

There is no hint in these passages of any intention to exclude all but one class of probationers, nor of any criterion of exclusion; the stated purpose of the amendment relates to probationers generally, and is to put them in a position comparable to that of others having a general right of review of decisions affecting them.
The appellant, who appeared in person and argued his case with considerable ability, submitted that the original decision to terminate his appointment was vitiated by a denial to him of natural justice. As the principles of natural justice do not define a fixed body of rules, the essential first step in a consideration of this argument is to identify what, in the particular circumstances, the law demanded of the Commission. In his often cited judgment in Mobil Oil Australia Proprietary Limited v. The Commissioner of Taxation (1963) 113 CLR 475 at 503-4, Kitto J. asserted "the impossibility of laying down a universally valid test" by which to ascertain what may constitute a fair opportunity to controvert prejudicial material, and he referred to "the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place." He added:

"By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter . . . ."

Similarly, in Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656 at 676, Deane J. said:

"On the other hand, it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable. The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case."

See also Kioa v. West (1985) 159 CLR 550 at 584-5, 601, 611-615, 633.

It is therefore necessary to look at the statutory framework within which the provisions of s.40 must operate. The Act makes a number of different provisions in respect of decisions of various kinds concerning particular officers. Section 58, which deals with discipline, ensures, by express provision, in subsections (2), (6) and (7), that the officer concerned will have repeated opportunities to put his side of the story. The requirements of natural justice are not left to implication. They are explicit. Similarly, where an officer has been convicted of an offence, there is provision in s.61 for the Commission to form an opinion and take action which may include dismissal from the service; but the Commission is expressly required first to give the officer "an opportunity to furnish to it, in writing, any explanation that he desires to make in relation to the offence." A different provision is made for a case where a dismissed officer subsequently has his conviction set aside; such an officer "may" be re-appointed under subsection (3), but the Commission's power to refuse a re-appointment is expressed to be subject only to a requirement that "it shall notify the applicant, in writing, accordingly and furnish to him its reasons for the refusal." Both kinds of decision, that is to dismiss and to refuse to re-appoint, are subject to a right of appeal to a Disciplinary Appeal Board under s.62. There is also quite elaborate provision for forfeiture of office by unexplained absence or disregard of a requirement to return to duty, in either of which cases the officer is deemed to have resigned, and for the making of an application for re-appointment, for the furnishing of reasons if such an application is refused, and for appeal against refusal to a Disciplinary Appeal Board. There are provisions in ss.55 and 56 for the retirement of officers on the grounds of redundancy or inability to discharge their duties, and for the review of decisions made under those sections.
Section 40 finds its place in the framework of these varying provisions, handmade, as it were, by the legislature to meet the varying requirements of the circumstances mentioned. Section 40 is concerned solely with probation. It makes no express provision, comparable with the provisions made by ss.58 and 61, for the Commission to hear any explanation the probationer may wish to furnish before a termination, and it expressly provides (unlike the statutes and rules discussed in some of the cases in the books) that probation may be cut short by the Commission terminating it at any time. However, the section requires the Commission to notify the probationer in writing of the reasons for a termination, and confers a right to have the decision reviewed. The form of s.40 appears to reflect a legislative perception of the nature of the discretion involved, and of what must be done to ensure the decision is made fairly.

It was held in Colpitts v. Australian Telecommunications Commission (1986) 9 FCR 52 that an officer dealt with under s. 56 was entitled to be accorded natural justice by the Commission, as well as on review of its decision. When that case was taken on appeal, this ruling was not questioned, and the appeal concerned only the extent of the review for which s.56 provides. If s.40 does not also entitle an officer to be accorded natural justice, that must be because of the nature of probation. In Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47, the Supreme Court of New South Wales found that the annulment by the New South Wales Public Service Board of an appointment on probation was not a dismissal, and the probationer had no right of appeal. It does not follow that in no circumstances could he have been entitled to natural justice. But the nature of probation, which was held at 49 to involve "the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed", necessarily limits the issues upon which a probationer could expect to be heard. As Brereton J. said at 62-63, he must be taken to have accepted appointment on the basis that confirmation or annulment "would depend wholly and solely on the view formed by the Board," and it would be contrary to the meaning of probation to compel confirmation in a case the employer did not consider suitable. But that the application of the rules of natural justice is not negatived, merely because an appointment is on probation, was held by the High Court in O'Rourke v. Miller (1985) 156 CLR 342.
To ascertain what the rules of natural justice require, in a particular case arising under s.40, it is necessary to consider what was decided in O'Rourke v. Miller, as well as what is provided by the terms of s.40. The High Court distinguished Ex parte Wurth; Re Tully as depending upon materially different legislation (see 350). O'Rourke v. Miller concerned a Victorian Act regulating the appointment of police constables upon probation. There was no power to reduce the period of two years fixed as the period of probation in order to terminate an appointment early, and at 349 Gibbs C.J. expressly contrasted the "unfettered power to dismiss a police cadet or a police reservist." The position may also be contrasted with the power of the Telecommunications Commission to terminate a probation early. A significant feature of the probationary constable's situation was that he was required to sit for a retention examination. At 352-353 Gibbs C.J. said:

"A person appointed as a probationary constable, who has passed the retention examination, has a natural and reasonable expectation that his appointment will be confirmed unless there is some challenge to his conduct, character or efficiency. When it is alleged that such a person has been guilty of some misconduct which may warrant refusal of confirmation of his appointment, he is entitled to be dealt with in accordance with the rules of natural justice. . . . (H)e must be informed of what is alleged against him and given a fair opportunity to answer those allegations."

However the Chief Justice went on to state:

"In the present case the Chief Commissioner was not required to hold a formal hearing or to be satisfied beyond reasonable doubt that the appellant had been guilty of the misconduct alleged before he reached a decision to terminate the appellant's provisional appointment. It would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of constable or that there was a real doubt about his suitability."

Wilson J., at 360-361, summarised the position of a probationary constable as follows:

"The relevant question was not whether he was guilty of an offence but whether on all the information available to the Deputy Commissioner he possessed the qualifications which rendered him suitable for appointment. . . . He has no right to confirmation merely because he passes the retention examination and receives a favourable report from his superiors. He has no right beyond the right to expect a bona fide decision by the Chief Commissioner on his suitability to continue as a member of the police force with the proviso that if any material on which that decision might be based is adverse to him then the substance of that material will be made known to him and an opportunity given to him to make his response: see Chief Constable of the North Wales Police v. Evans

(1982) 1 WLR 1155; (1982) 3 All ER 141. The record here shows that the appellant was interviewed over a period of months by a number of senior police officers. He was fully informed of the conduct complained of and given every opportunity to make his response, which he did. I agree with the conclusion of the Full Court that the procedures followed satisfied the dictates of fairness."

Some features of the legislation and rules with which O'Rourke v. Miller and Evans's case were concerned gave strong grounds for the implication of a right to natural justice. Nevertheless, under s.40 of the Act, a probationary officer is in the position of a probationary constable described by Wilson J. What is required for compliance with the rules of natural justice is that if the Commission takes into consideration something which might be held against him it should first give him an opportunity of rebuttal or explanation. A fair opportunity will of course only be afforded him if he is told the substance of the matter to be answered. Beyond the observance of fairness in this sense, s.40 offers the probationer only the remedy of a right of review under subsection (7). That remedy is fortified by the requirement of reasons for the original decision.
In the present case, the evidence accepted by the trial Judge showed that the appellant was repeatedly made aware, and in detail, of the matters that were taken into account in the termination of his appointment. He had ample opportunity to respond. The decision was not made hastily, but only after a substantial extension of the period of probation. There was nothing in the particular circumstances to require the exceptional holding of something in the nature of a hearing. On all the information available, the appellant was not considered suitable for confirmation of his appointment, but that was because of what were seen as inadequacies in his performance of which he had been made fully aware. Examination of the evidence reveals no reason to disturb the findings of the trial Judge.
In some circumstances, it may not be sufficient to meet the demands of natural justice in respect of a decision made concerning an officer upon the basis of reports from supervisors that the officer was made fully aware of the matters the subject of the reports and given a full opportunity by the supervisors to make whatever response he wished; he may be entitled also to be heard by the ultimate decision-maker. See Dixon v. Commonwealth (1981) 55 FLR 34 at 48; Colpitts v. Australian Telecommunications Commission (supra) at 67. But those were cases quite different from the present. There is nothing to suggest that there was anything lacking in the opportunity the appellant had to make, through the officers by whom he was interviewed, the fullest answer open to him to the complaints made concerning his fulfilment of his duties.
At the hearing of the appeal, emphasis was placed by Mr. Busby on the shortness of the interval between 27 May 1986, when he was shown a detailed report on the deficiencies perceived by his then supervisor in his performance as an officer, and the making of the decision to terminate his probation on 29 May 1986. He also complained that the date of a minute communicated to him, setting out his shortcomings as an officer, had been altered from 22 May to 27 May, the date when he saw it, and that the written notification to him of the forwarding of a recommendation of termination of his services also bore an altered date - from 23 May to 27 May. He suggested the changes, which were made in ink, indicated a fraudulent attempt to improve the appearance of the steps taken to terminate his appointment. The trial Judge saw no significance in the alterations of date, noting that they were not concealed in any way. The substance of the matters raised had, it is clear, been previously put to the appellant. The appellant had had an opportunity of dealing with these matters, both in writing and in formal conference with a number of his superiors. He had been written to on 8 April 1986 for the purpose of informing him that a further report would be prepared in about a month's time "and if that report is unsatisfactory your probation and employment will be terminated." In these circumstances, the termination of the appellant's probation was not based on anything new, which he should have been told, but rather on his failure to demonstrate to the decision-maker that he had changed.
The trial Judge expressly found that "none of the material before (Mr. Ross, the delegate who made the original decision) contained any important allegations adverse to the applicant of which he was unaware and upon which he had not had an opportunity to comment." On the evidence, it is plain that the matters the decision-maker considered were matters about which the appellant had been informed, and in respect of which he had in fact made his responses. The same is true of the further consideration given to the matter by Mr. Westcott.
The appellant also contended that the trial Judge had erred in making certain other findings in respect of the original decision. It is sufficient to say that these contentions are without substance. In any event, the decision was the subject of a full review pursuant to s.40(7). While, in some circumstances, such a review may not remedy a previous breach of the rules of natural justice (see the cases discussed in Colpitts' case (supra) at 65-67), the other grounds taken in this case, even if made out, are not such as to justify a grant of a discretionary remedy in relation to the original decision after the appellant has chosen to have the matter reviewed under subsection (7). The proper question in the circumstances is whether he has made out a ground of attack upon the decision of the Review Tribunal. Apart from the special questions which may be raised by a denial of natural justice, that will generally be the question in such cases.
The appellant contended that the decision of Mr. Westcott, upon reconsideration of the original decision to terminate the appellant's probation, made by Mr. Ross, was invalid on the ground that Mr. Westcott had no power, simply as another delegate senior in position to Mr. Ross, to reconsider the matter. It is unnecessary to reach a conclusion on this point, as has already been stated, since it could not avail the appellant anything. The argument has obvious technical merit, but the decision on reconsideration did not differ from the decision reconsidered, and merely confirmed it. Other grounds of appeal urged against the decision of Mr. Westcott were without substance. In any case, the whole matter was reviewed under subsection (7) by the Review Tribunal, to the decision of which it is now necessary to turn.
The appellant argued that the Review Tribunal had denied him natural justice. It had not given him a proper opportunity to reply, so he contended, to material obtained from certain other officers, and it had not obtained statements from all referees to whom he had referred it. The trial Judge rejected these contentions on the facts. He accepted the evidence of Mr. Riley, the Chairman of the Tribunal. According to that evidence, the Tribunal interviewed the appellant for a period of three or four hours when he presented a nineteen page handwritten submission. It then interviewed his supervisors and other officers. Finally, the Tribunal again interviewed the appellant for a period of two to three hours. It did not communicate to him the detail of what had been said during its interviews with other officers. As to this, the trial Judge held:

"The uncontradicted evidence of the Chairman of the Tribunal is that as a result of the interviews it did not hear anything new adverse to the applicant of which he was not already aware. The Tribunal, he said, was conscious of the need to tell the applicant if it found anything significantly adverse to him."

On the evidence, the Tribunal gave anxious consideration to the whole matter, on the basis of material of which the appellant was well aware, and gave him a very full opportunity to answer that material. It selected from the referees to whom he had referred it, and did not interview certain referees. But they were referees whose involvement with the issues in question was marginal, and the accepted evidence of the Chairman of the Tribunal is:

"We decided that none of their evidence would be critical to our review. We accepted all that the applicant put forward that they would have said but it would not have changed our recommendation."

The appellant relied on McNab v. Gildea (1986) 70 ALR 60. But the circumstances of this case are quite different from the circumstances of that case. Here, there is no reason to doubt the correctness of the trial Judge's finding that "there has been afforded to the applicant ample opportunity to meet and comment upon the criticisms of his performance."

The appellant also submitted that the Review Tribunal had erred in law by failing to have proper regard to material which might have shown an improved performance after the termination of his probation, and pending the review. The period in question is a short one, and it was within the competence of the tribunal to give it little weight compared with the appellant's performance during the period of his probation. Section 40 gives a statutory power to fix the appropriate period by termination at any time, and it was open to the tribunal to conclude that the time was sufficient for a full and proper evaluation of the case. If it was open to take that view, the question whether it should be taken was for the tribunal. The terms of s.40 and the nature of probation distinguish the position in principle from that considered in Colpitts' case (supra) at 68-69.
The appellant finally submitted that the decision of the State Manager accepting the recommendation of the Review Tribunal was vitiated by a failure to observe the principles of natural justice. There is no substance in this submission. The State Manager did not depart from the recommendation of the tribunal, and he was entitled to accept that recommendation without further enquiry. He was required and empowered by regulation 35(2) to "give further consideration to the matter and may confirm the decision previously made by (the Commission) or take such other action as (he) considers appropriate to give effect to the recommendation or advice of the Tribunal."
The last issue to be dealt with is that of costs. The trial Judge ordered that the appellant pay two-thirds of the respondents' costs of the application, and the appellant challenges this order as unjust. The award of costs is a discretionary matter, in respect of which the trial Judge may have been influenced by his conclusion that the Commission was in error in regarding the original decision as made under subsection (4)(b) of s.40 and thus reviewable by the Review Tribunal. There is, however, no cross-appeal. The appellant was unable to show that the exercise of discretion to order him to pay costs to the extent of two-thirds of the respondents' costs was erroneous.
The appeal should be dismissed with costs.
SUPPLEMENTARY REASONS FOR JUDGMENT
Upon delivery of the reasons for judgment on 28 October 1988 the appellant and counsel for the respondents requested that the question of costs of the dismissed appeal be reserved.
That request was acceded to and the parties given the opportunity to lodge with the Court submissions in writing in respect of any order as to costs. In due course each party has submitted an argument on the point.
The Court has taken the opportunity to peruse those submissions and finds no cause to alter its previously expressed view that the appellant should bear the respondents' costs of this appeal.

[1988] FCA 627

28 OCTOBER 1988