Chamberlain, Y.M. v Cockburn, J.L
[1982] FCA 210
•14 OCTOBER 1982
AND: J.L. COCKBURN, Chairman of the Promotions Appeal Committee and R.M.
NORTH, Foreign Affairs Representative of the Promotions Appeal Committee and
F. DOWD, A.C.O.A. Representative of the Promotions Appeal Committee sitting as
a Promotions Appeal Committee under the Public Service Act, 1922-82
First Respondents
AND: WILLIAM COLE, Chairman of the Public Service Board and J.C. TAYLOR,
Commissioner of the Public Service Board and R.J. YOUNG, Commissioner of the
Public Service Board sitting as the Public Service Board under the Public
Service Act, 1922-82.
Second Respondents
No. G.28 of 1982
ADMINISTRATIVE LAW
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.
ADMINISTRATIVE LAW - Judicial Review of Administrative Decisions - Public Service Promotions Appeal - Selection of officer for temporary performance of duty - Function and Procedure of Promotions Appeal Committee - Applicable principals of natural justice.Public Service Act 1922 s.50
Public Service Regulations Reg. 116
Administrative Decisions (Judicial Review) Act 1977 s.5
SYDNEY
#DATE 14:10:1982
The applicant, Yvonne Mary Chamberlain, seeks a review, pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 of a decision of a Promotions Appeal Committee ("the Committee").
The first respondents were the three members of the Promotions Appeals Committee and ultimately no orders were sought against the second respondents.
I have delayed giving judgment in this matter until the Full Court of this Court, of which I was a member, had delivered judgment in Ansell v. Wells (delivered 27 September 1982) because that case dealt with the crictical aspects of this case.
The applicant, an officer in the public service, appealed under the provisions of reg. 116(6) against the selection by the Chief Officer, of Mrs. Jeanette Hastings, to perform temporarily the duty of the office of clerk class 9 in the third division of the public service in position number 2707 in the Australian Development Assistance Bureau. Mrs. Hastings had been selected under the provisions of reg.116(2)(b) where, in the circumstances of this case, the Chief Officer was required to select the officer who, in his opinion, was 'the more or the most efficient officer available'. Under reg. 116(6) an appeal may be made on the ground of '(i) superior efficiency; or (ii) equal efficiency and seniority'. On the first occasion when the matter was before me for directions I ordered the applicant's solicitor to advise Mrs. Hastings of the details of orders I made on that day. However, Mrs. Hastings took no steps to seek to be added as a party.
The applicant gave notice by letter of her appeal on 12 January 1982 and added a request for an urgent hearing. On 28 January 1982 a more formal notice of appeal was lodged stating as the grounds 'Superior Efficiency, Regulation 116(2)(b)'. She also set out on a standard form her qualifications and employment history and annexed thereto some further material and requested certain information.
Regulation 116(7) provides: 'Subject to the next two succeeding sub-regulations, the provisions of section 50 of the Act and of regulations 109 to 109G (both inclusive) of these Regulations apply, mutatis mutandis, to an appeal under this regulation as if it were an appeal under that section'. Section 50(4) of the Public Service Act 1922 ("the Act") defines efficiency, so far as is relevant, as meaning 'special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct ...'.
Section 50(5A), (5AA), (5AB) and (5B) deal with the Committee. Regulation 109D prescribes the way in which the Committee is constituted. It consists of three members who determine an appeal by a majority decision. The Chairman is appointed by the Public Service Board and he is not subject to direction by any person or authority under the Act. The second member is an officer nominated by the Permanent Head of the relevant Department and the third member is an officer nominated by the appropriate organisation of officers.
The grounds of the application to this Court which were pressed were:
1. The first respondents acted in breach of the rules of natural justice in connection with the making of the decision of the Promotions Appeal Committee.
2. The first respondents exceeded their jurisdiction in confirming the temporary appointment of Mrs. Hastings to position number 2707. This ground was based only on the denial of natural justice.
3. The first respondents failed to make full enquiry in accordance with the statute.
So far as concerns the issue of natural justice this case differs from Ansell v. Wells, supra, only in that it concerns an appeal against the selection of an officer to perform temporarily a duty and not the provisional promotion of an officer to a position. It was common ground that there were staff difficulties in the Sydney office of the department in which position number 2707 was the senior position in Sydney. There were of the order of forty employees in the Sydney office. As was pointed out in Ansell's case the principles of natural justice are flexible and may vary from case to case. In general what was said in that case is applicable to this case although, at least in some cases, something less may be required in a case concerning selection of an officer to perform temporarily a duty than in a case concerning provisional appointment to a position.
Counsel for the applicant submitted that the duties of position number 2707 could be performed temporarily by Mrs. Hastings for an unspecified period but the evidence was that this period was likely to be about 4 months. It is also relevant to note that, at the time of the Committee's decision, there appeared to be a possibility that position number 2707 might be abolished. These matters may very well be relevant in considering the limits of the requirements of natural justice in this case.
No useful purpose would be served by repeating many of the points discussed in Ansell's case.
Neither party requested me to attempt to formulate details of each specific instances where the Committee had not accorded natural justice provided my reasons were detailed enough to establish whether or not the applicant should succeed. As an illustration neither party requested me to determine whether the failure to disclose the names of the referees to the applicant was significant. The applicant explained her failure to nominate referees upon the ground that she thought people had been injured by being associated with her and she did not want other peoples' careers to be disadvantaged.
The essential requirement in relation to natural justice is that the Committee act fairly. In Ansell's case, Davies J., pointed out that in general there was no objection to a Promotions Appeal Committee carrying out its functions by interviewing the parties separately from each other and by making inquiries from referees. I agreed with that statement. It is clear that in Ansell's case each member of the Court took the view that it was at least necessary that the substance of matters put forward about or by the 'other party' be made available to an appellant.
I pass now to apply these principles to the case before me.
The hearing before the Committee commenced on 29 January 1982 when both the applicant and Mrs. Hastings were interviewed. Inquiries, which I will mention later, were made by the COMMITTEE from various persons in the following week. These inquiries occupied two half days, and on 10 February 1982 the Chairman produced a draft report to the Committee. This draft was reviewed and considered by the Committee and on the next day the applicant was again interviewed and thereafter a final detailed report extending over 12 pages was settled by the Committee.
Mrs. Hastings was interviewed by the Committee before the applicant. This interview took about 50 minutes and the applicant was not present. The applicant was interviewed next and Mrs. Hastings was not present. This interview of the applicant occupied about 3 and a half hours. At the beginning of her interview the applicant asked for what was called a 'personal profile' and a copy of the departmental report. The personal profile did not exist. The departmental report was a four page statement prepared for the Committee and it dealt first with the position, the duties and the qualifications, personal qualities and skills desirable for the efficient performance of the duties of the position. The next four paragraphs were devoted to Mrs. Hastings and then four paragraphs to the applicant. The report concluded with a summary of the departmental view of the applicant and Mrs. Hastings. It will be seen from Ansell's case that, in general, such reports should be made available to the applicant before the Committee considers the case.
A day or two prior to the hearing commencing the department had supplied the applicant with no more than the four paragraphs of the departmental report which dealt with her but not the paragraph summarising the departmental view of her. The applicant requested a copy of the full report but this request was declined although the full report was read to her at the hearing. She was offered the opportunity to take whatever notes she wanted and an appropriate adjournment was offered to enable her to consider the report and prepare her case. She did not take advantage of this offer.
It appears that the applicant presented her case at some length to the Committee and the departmental submission in relation to her was discussed point by point and her comments invited. As a result ten points of dispute were set out in the report of the Committee. It appears that it is the practice to invite parties to an appeal to nominate 'referees' whom the Committee may approach for an opinion concerning the service of the person nominating the referee. The applicant declined to nominate any referees but asked to be informed of the names of certain referees whom Mrs. Hastings had nominated. These names were not supplied because the referees were not agreeable. I see no reason why they should have been disclosed.
Prior to the hearing Mrs. Hastings provided the Committee with a nine page document setting out the details of (a) her education and service, (b) her management skills and knowledge of the aims, policy, procedures and administration of what is known as the Aid Training Programme required for the position, (c) notes relating to her present position and (d) her experience with the bureau and a list of the publications and conference papers she had written. This document was not provided to the applicant nor was she provided with the substance of any statements made by Mrs. Hastings when Mrs. Hastings was interviewed by the Committee in the absence of the applicant.
I suggested to Counsel that a failure to carry out the duty prescribed by the act of making full inquiries might involve other, and at least to some extent different, considerations to the duty to apply the rules of natural justice. Neither party sought to address me at any length on this question and I propose to proceed upon the basis, without so deciding, that the obligation to make full inquiries was an aspect of the requirement to accord natural justice. Apart from certain questions which I regard as either not being of significance or ones I would resolve in favour of the applicant, I do not consider that any useful purpose would be served by my examining the case in any different way to that in which it was presented.
In my opinion the failure to provide at least the substance of the nine page document submitted by Mrs. Hastings setting out the details of her case and to advise the applicant sufficiently of at least the substance of what Mrs. Hastings had told the Committee was sufficient for me to be satisfied that the Committee had not accorded natural justice in the inquiry. In my opinion this is the critical matter in this case. I doubt whether any other aspect of the proceedings would have caused me to reach this conclusion. As I have said the failure to provide a copy of the departmental statement was, in my opinion, substantially unacceptable but of itself in this case it would not have been sufficient to entitle the applicant to relief in those proceedings.
The applicant submitted that the Committee ought to have made inquiries concerning a critical report which had been written by Mrs. Hastings about a Mr. Snelling . As the result of a complaint by Mr. Snelling this report was investigated by a Mr. Ingram who had the title in July 1980 of Chief Officer. Mr. Ingram conducted an examination and he found that Mrs. Hastings' report about Mr. Snelling had not been substantiated. The applicant also asked the Committee to make inquiries from a Mr. Leon Smith, a retired public servant, about matters referred to in an affidavit which he had filed in another case. I do not consider the conduct of the Committee was contrary to the principles of natural justice with regard to matters concerning Mr. Snelling or Mr. Smith.
I think it is appropriate to mention certain other matters. It is clear that the Committee asked for the relevant files in relation to both the applicant and Mrs. Hastings. The Committee then examined those files and it is clear that in one relating to the applicant there was a considerable amount of material unfavourable to her relating to a certain period. It seems that the applicant could have had access to her files had she followed a different procedure but I think that they should have been made available to her by the Committee unless there was some reason to the contrary. The Committee also examined the four files relating to Mrs. Hastings. I do not think that these files should have been made available to the applicant because they could be expected to contain material of a personal nature not necessarily relevant to support the appplicant's case or to cast doubt upon Mrs. Hastings case. Again the question is one of some difficulty but if there was anything in these files which either supported Mrs. Hastings case or adversely affected the case of the applicant the substance of such material should have been made available to the applicant.
At the end of the hearing before me I requested submissions on the form of any order I should make if I found the applicant had established its case. Counsel for the applicant and the first respondents agreed that in such a case it was appropriate that I should make an order quashing and setting aside the determination of the first respondents in respect of the appointment of Jeanette Hastings to position number 2707. Certain other orders were sought by the applicant but I agreed that I would make my reasons for judgment available and the parties could then be given an opportunity to address me on the question of further orders.
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