Chamberlain v Banks

[1985] FCA 577

Re: YVONNE CHAMBERLAIN
And: B.W. BANKS, E. STEPHENS & C. GIBBS and W.S.A. McGEE, K.J. SMITH & R.C.G.
MARTIN and PUBLIC SERVICE BOARD and COMMONWEALTH OF AUSTRALIA
(1985) 7 FCR 598
No. G53 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Davies(1) and Beaumont(1) JJ.

CATCHWORDS

Administrative Law - judicial review - procedure on appeals against public service promotions - natural justice - whether appellant entitled to appear before Central Promotions Appeal committee or entitled to access to reports of State Promotions appeal Committees - whether necessary to compare all parties in light of specified job criteria - discretion to refuse remedy in view of time elapsed since date of appointments - joinder of successful applicants as parties.

Administrative Decisions (Judicial Review) Act 1977 s.5

Public Service Act 1922 s.50

Administrative Law - Natural justice - Audi alterem partem rule - Procedures "required by law to be observed" - Central Promotions Appeal Committee (Cth) - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 5(1)(b).

Public Service - Promotions Appeal Committee (Cth) - Natural justice - Audi alterem partem rule - Procedure of Committee - Application for judicial review - Parties to application - Public Service Act 1922 (Cth), s 50(8D).

HEADNOTE

Held: (1) In the performance of its duties under s 50(8D) of the Public Service Act 1922 (Cth), the Central Promotions Appeals Committee (established to weigh the respective reports of State Promotions Appeals Committees) was:

(a) not bound by the rules of natural justice to interview an appellant;

(b) not obliged by the rules of natural justice to disclose to an appellant the reports of State Committees relating to herself or the successful

applicants; and

(c) not obliged to weigh the claims of the respective parties by reference to each of the criteria laid down for selection for the particular job.

Ansell v. Wells (1982) 63 FLR 127; Peninsula Anglican Boys School v. Ryan (1985) 7 FCR 415, considered.

(2) An application for judicial review of a decision of a Promotions Appeal Committee would not be likely to succeed unless the officer sought to be ousted from a position were joined as a party from an early stage, and appropriate interlocutory orders sought which would achieve the result that promotions could be cancelled and officers affected could revert to their former positions if the application were successful and the appeal ultimately allowed.

Ansell v. Wells (1982) 63 FLR 127, referred to with approval.

HEARING

Sydney, 1985, October 7; November 8. #DATE 8:11:1985
APPEAL

Appeal from a decision of a single judge of the Federal Court of Australia.

G A Flick, for the appellant.

C Stevens, for the respondent.

Cur adv vult

Solicitors for the appellant: Read & Read.

Solicitors for the respondents: Australian Government Solicitor.

FPC

ORDER

The appeal be dismissed with costs.

(Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.)

Appeal dismissed

JUDGE1

This action concerns the procedures for appealing against promotions within the Commonwealth Public Service. The appellant was unsuccessful in an application for review under the Administrative Decisions (Judicial Review) Act 1977 ('the Judicial Review Act') and now appeals to this Court. The relevant facts are set out in detail in the judgment of Fox J against which this appeal is brought, so they are merely summarized here.

1. A public service position was advertised in June 1982. It and another identical position were provisionally filled on 16 September 1982 with the appointments of Mrs Hastings and Mr Munro. Pursuant to the provisions of the Public Service Act 1922 ('the Act') which were in force at the time, Promotions Appeal Committees were established in Sydney and Canberra to consider appeals against both appointments brought by the present appellant and two other officers.

2. The appeal system contained in s.50 of the Act provided that, where all the relevant parties worked in the same state, a single Promotions Appeal Committee should make full inquiries into the claims of those parties and then determine the appeal or appeals. Where the parties worked in different states (as was the case here) separate committees should make full inquiries into the claims of the parties in their respective states, and report to a Central Promotions Appeal Committee which (s.50(8D)),
   
   

"(a) shall examine those reports;

(b) may make such further inquiries (if any) as it

thinks necessary; and

(c) shall .... determine the appeal or appeals."

In the present case all the appeals were unsuccessful.

1. Before Fox J the appellant challenged many aspects of the way this appeal process was carried out. In this Court, counsel relied only on three circumstances, all relating to the actions of the Central Committee. (It should be noted that the system of having cases heard by different committees, with a Central Committee adjudicating, has been done away with in recent amendments to the Act.)

2. The first circumstance relied upon was that the applicant was not interviewed in person, although she was spoken to, on at least three occasions, for a total of several hours, by members of the Committee using a telephone loudspeaker system. One of the successful applicants, Mrs Hastings, was interviewed by the Committee for five or ten minutes. It was argued that this constituted a denial of natural justice - either because appellants should always be interviewed when they request it (as this appellant did), or because the Committee should not see one party to an appeal without seeing all.

3. In our view there is no substance to this contention because the Act made it clear that the role of the Central Committee was simply to weigh as best it could the respective reports of State Committees and, with the help of any necessary further inquiries, make a decision on the basis of the reports received.

4. It seems that in the present case the Central Committee saw Mrs Hastings for a few minutes to ask about her professional qualifications. It may have asked her to attend in person simply because it was convenient to do so, she being in the same city (Canberra); or it may have asked to see her because there was some suggestion of dishonesty in her claims and Committee members may have wished to confront her with this suggestion and gauge her reaction.

5. In the case of Miss Chamberlain, the Committee's concern was to ask her for references from officers currently serving in her department. In the event, she was not prepared to name any such person, and it seems that her reasons for not doing so took some time to explain and, no doubt, led to the broadening of discussions.

6. In our view there is very little scope for the application of any of the rules of natural justice to the limited role of the Central Committee - which was impliedly empowered by s.50(8D) of the Act to base its determination exclusively on the reports of State Committees if it saw fit to do so. In any event, there was nothing in the circumstances of the telephone conversations and the interview, described above, to suggest any breach of such rules in this case.

7. Similar considerations apply to the next circumstance relied on by counsel for the appellant, that she was shown neither the report of the N.S.W. Committee on herself nor those of the Canberra Committee on the successful applicants.

8. In our view there was no obligation on the Central Committee to disclose the contents of those reports to the respective parties. These were not adversarial proceedings (Ansell v Wells (1982) 43 ALR 41), so there was no need for one appellant to be given any more than the substance of relevant information about a successful applicant or other appellants. So far as reports on the appellant herself were concerned, it was appropriate that any material which might have told against her appeal should have been put to her by the State Committee, which was charged with the making of "full inquiries" (s.50(8C) of the Act). However, no complaint is made about the information given to the appellant by her State Committee.

9. The report of that Committee was an integral part of the final decision-making process. There was, in our view, no obligation on the Central Committee to throw those reports open to scrutiny and challenge. An already cumbersome appeal process would have become almost unworkable if the contents of the State reports all had to be opened to further detailed challenge before the Central Committee. It is worth recalling, in this context, that if the parties had all been from one state, the determination of that State's Committee would have been final, and no report would have been prepared.

10. The third circumstance relied upon by counsel for the appellant was that the Central Committee did not separately consider each of the nine criteria laid down for selection for the particular job, when it was considering the respective claims of the appellant and Mr Munro. Its reasons for decision disclose that it went through such an exercise only in the case of the appeal against Mrs Hastings' appointment.

11. In our view there was no need for the Committee to have considered each criterion in turn in either case - although it was obviously wise to keep those criteria in mind in the course of its deliberations. But the Committee was quite entitled to reach a conclusion, as it did, on the broad basis that the successful applicant had been doing the job well for some time, in an acting capacity, while it held distinct reservations about the appellant's "efficiency" in the sense of her ability to perform well as a team member. A failure to weigh the claims of the respective parties in the light of each of the suggested criteria could not possibly be described as a failure to make any necessary inquiries, within the meaning of s.50(8D) of the Act, and thus a failure to observe "procedures that were required by law to be observed" (Judicial Review Act s.5(1)(b)), as was alleged. Cf. Peninsula Anglican Boys School v Ryan, an unreported decision of Wilcox J given on 17 October 1985, at pp.23-27 of the certified reasons for judgment.

12. For the reasons given, each of the grounds of challenge to the judgment of Fox J fails. Even if we had found substance in any of these, we would not have allowed the appeal. Fox J referred, at the end of his judgment, to the difficulty of knowing what to do if an application such as this had merit, particularly when a long period of time has elapsed since the appointments challenged were made. Because of his findings he did not need to consider any question of the exercise of his discretion as to remedy.

13. The appointments which are here being challenged were, it seems, confirmed in July 1983 following the decision of the Central Committee. Mr Munro had been acting in his position since early 1982. Neither Mr Munro nor Mrs Hastings is a party to these proceedings. It is unthinkable that the Court would make an order, depriving either of them of his or her position, without giving him or her a full opportunity to be heard, probably in fresh proceedings before a single judge. It is difficult to imagine circumstances in which any officer would be deprived of his or her office, years after being appointed to it, unless there were some serious misconduct on the part of that officer. Other promotional opportunities might well have been lost in the meantime; and where is the displaced officer to be posted? The position formerly held will have been filled by yet another officer, and so on. Some of the appointments made may have involved interstate transfers or other personal changes of position.

14. In our view an application such as the present would not be likely to succeed unless the officer sought to be ousted from a position were joined as a party from an early stage, and appropriate interlocutory orders sought which would achieve the result that promotions could be cancelled and officers affected could revert to their former positions if the application were successful and the appeal ultimately allowed. The warnings sounded in Ansell's case (above) were not heeded in the present case.

15. It would also seem to be important, in the interests of all concerned, that an application such as this should go to trial as speedily as possible with the minimum of time spent on interlocutory matters. Careful consideration should be given in each case to whether discovery and interrogation are really necessary and, if so, whether their scope can be appropriately limited.

16. For the reasons given, the appeal should be dismissed with costs.