Darryl John Clarke v David Alexander Hunt and Malcolm Forster No. SCGRG 92/1349 Judgment No. 3709 Number of Pages 11 Administrative Law

[1992] SASC 3709

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - Police Regulations 1982 - vacancy for position holding rank of superintendent - selection and assessment panel appointed under regulations and Guidelines published by Commissioner - plaintiff an unsuccessful applicant for position - whether accorded procedural fairness by assessment panel. Police Regulations 1982.

HRNG ADELAIDE, 10 November 1992 #DATE 24:11:1992
Counsel for plaintiff:     Mr P A Heywood-Smith
Solicitors for plaintiff:    Duncan Groom Hannon
Counsel for defendants:     Ms P M Barnett
Solicitors for defendants: Attorney-General's Department

ORDER
Claim dismissed.

JUDGE1 COX J The plaintiff is an Inspector of Police in the South Australian Police Force. In April 1992 he was an applicant for the position of Disciplinary Review Officer, Internal Investigation Branch in the rank of Superintendent. He was unsuccessful. The assessment panel recommended another applicant. The plaintiff seeks orders in the nature of certiorari and mandamus to overturn the assessment panel's recommendation on the grounds that the assessment panel did not accord him procedural fairness. The defendants in these proceedings are the Commissioner of Police and the recommended candidate. They appeared in this Court to oppose the plaintiff's application. 2. In brief, the plaintiff complains that the assessment panel failed to give proper attention to certain matters in assessing his application for the position and also improperly gave weight, or too much weight, to certain other matters. They also failed to give him an adequate hearing. Before considering the grounds of the application and the nature of the relief the plaintiff seeks, it is necessary to describe the appointment procedure in some detail. 3. The police force in this State is organized and regulated in accordance with the provisions of the Police Act 1952. There is express provision for promotion appeals in the case of appointments to non-commissioned rank or to the rank of inspector (ss.41 and 42) but no right of appeal is given or contemplated, under the Act or Regulations, in the case of an appointment to a rank higher than inspector. The present plaintiff thus had no right of appeal in this case against the recommendation of the assessment panel. 4. The assessment panel was set up in accordance with the Police Regulations 1982 (as amended) made in accordance with s.22 of the Act. Regulation 46 reads -
    "(1) The Commissioner may, in order to assist him or her
    to determine the suitability of members to be selected to fill a
    vacancy or vacancies that exist in the force, appoint an advisory
    committee, or advisory committees, of not less than three
    members;
    (2) Whenever such a committee is assigned a responsibility to
    advise on the filling of any vacancy it shall examine the claims
    of all eligible applicants and shall recommend the applicant it
    considers most suitable on merit having regard to the following
    matters:
    (a) efficiency in the performance of police duties;
    (b) experience, both in the Force generally and of any special
    conditions applicable to the position;
    (c) knowledge, skills, and aptitudes relevant to the position
    in respect of which the vacancy exists;
    (d) nature of any studies or training undertaken, examinations
    passed and results obtained;
    (e) good conduct;
    (f) ability to command the respect of and to work harmoniously
    with others;
    (g) results of any oral, written, medical or psychological
    tests or interviews or other assessment procedures conducted by
    or at the request of the committee.
    (3) If, having regard to the matters mentioned in subregulation
    (2) of this regulation, a committee considers that two or more
    members are equally suitable for the position under consideration
    seniority shall be the deciding factor.
    (4) A committee appointed under this regulation may, if it
    thinks proper, examine candidates for a vacancy by requiring them
    to participate in a prescribed course of training or to submit to
    oral or written tests, interviews or other assessment procedures
    or medical or psychological assessment or any combination of
    these. ..." 5. It is significant that the words "on merit" were added to sub-reg.(2) in 1989. (See Regulations No. 150 of 1989, reg. 22 - Gazette 27 July 1989 p.251.) It is plain, then, that recommendations are to be made according to the candidates' respective qualifications and that seniority is not normally to be taken into account. This is confirmed by reg.45(3) which obliges the Commissioner, in turn, to nominate the member who is most suitable on merit for appointment to the vacant position. 6. On 17 February 1984, the Commissioner had published a seven-page memorandum, entitled Selection Procedures for Promotional Positions for Commissioned Officers. It is still in force. It provides for what is called a structured selection procedure for commissioned officers, with a formal job application and an "interview and assessment panel". 7. The different steps in the selection procedure are set out in some detail for the guidance both of those who are applying for a vacant position and of those who will be sitting on the assessment panel (as I shall call it). A distinction is made with respect to any particular vacancy between "essential requirements", being the basic minimum requirements needed to carry out the job, and "desirable requirements", being requirements, additional to the essential requirements, that would make it easier for the person appointed to carry out the job. An assessment panel (which is obviously the name that the Guidelines give to the advisory committee contemplated by reg.46) is appointed on an ad hoc basis. It is to examine all applications for the vacant position and determine whether the applicants obviously meet its essential requirements. That decision is to be made on the documents including in each case the applicant's personal file, his application form and a report from his senior officer. Applicants are then selected for interview. Paragraph 2.5.1 of the Guidelines reads -
    "The interview allows applicants to orally present their
    applications and to discuss their suitability for the position.
    The interview will also allow the factual data from the
    applicant's personal file to be added to/substantiated.
    Selection Interview Guide Forms have been developed to assist the
    panel members in maintaining a standardised interview format and
    a degree of objectivity. These guides (Appendix 'F') are
    designed so that the panel can use the interview to supplement
    and clarify the information pertaining to each applicant." 8. The assessment panel then makes its assessment of the candidates. Paragraph 2.5.2 reads -
    "All the information received by the panel is combined and
    assembled on a Commissioned Officer Assessment Matrix (Appendix
    'G'). The panel will rate the applicant on his qualifications,
    experience, job knowledge, abilities/skills, conduct and
    motivation on this form and receive a rating and percentage score
    for each applicant, allowing a comparison to be made between
    applicants. The essential requirements will be considered
    separately from the desirable requirements. The desirable
    requirements are the discriminators, and as such each have their
    own weightings. The final percentage scores for the desirable
    requirements will be the 'bottom line' discriminators between one
    applicant and another. If however, the situation arises where
    more than one applicant has the same percentage score, or similar
    percentage score, the essential requirements will then become the
    discriminators. That is, in the majority of cases, the desirable
    requirements will be used to decide the most suitable applicant
    for the position. However, in some situations when two or more
    applicants have very similar percentage scores on their desirable
    requirements the panel will have to revert to the essential
    requirements as the discriminators. These percentage scores will
    be transposed onto the 'Commissioned Officer Selection Report'
    (Appendix 'H'), along with the comments of the panel. The panel
    will write a short, concise narrative for each applicant
    commenting on his qualifications, experience, job knowledge,
    abilities/skills, conduct and motivation. The panel will also
    make a recommendation regarding the suitability of each applicant
    for the position. The applicant is rated as very suitable,
    suitable, marginal or unsuitable. The interview panel will also
    submit comments for each applicant which support their
    classification of the applicant's suitability. The interview
    panel will forward the Commissioned Officer Selection Report
    containing their recommendations to the Commissioner who then
    makes his decision as to who is the most suitable applicant to
fill the position." 9. The Commissioner then makes his nomination to the Governor in accordance with reg.45(3). 10. The vacancy in this case was, as I have said, for a Disciplinary Review Officer. The plaintiff obtained a copy of the job specification, called a Position Profile, consisting of two closely typed pages, and made his written application. He used the forms annexed to the Guidelines. The rubrics printed on the form dealing with the "essential qualifications" (obviously referring to what the text of the Guidelines calls the "essential requirements") told the candidate, "Briefly state how you meet the essential qualifications for this position outlined in the Person Specification. Consider them in the context of the principal accountabilities for the position." For the "desirable qualifications" the applicants were told, "Consider each of the desirable qualifications for the position and discuss how you meet them. Consider them in the context of the principal accountabilities for the position." Finally, there was a separate sheet headed, "Briefly outline ANY FURTHER INFORMATION which you feel is relevant to the position you are seeking." The plaintiff also completed a Person Profile which was a kind of curriculum vitae covering his service in the police force. 11. Meanwhile, the Deputy Commissioner of Police had appointed a "selection and assessment panel" (presumably the same as the Guidelines' "interview and assessment panel") with Assistant Commissioner Beck as Chairman. The assessment panel interviewed three applicants, including the plaintiff. Then they assessed each applicant in accordance with an elaborate Commissioned Officer Assessment Matrix which adapted the form in the Guidelines to this particular vacancy. Finally they rated the three applicants. The second defendant was rated as "very suitable" and was recommended for appointment. The other two applicants were simply rated as "suitable". The panel reported accordingly to the Commissioner. Included in their report was a summary of their views about each applicant with their reasons for recommending the second defendant. 12. The plaintiff complains that the proceedings before the panel miscarried and that, as a result, he was dealt with unjustly. His counsel, Mr Heywood-Smith, considered that he might have difficulty in supporting the claim for an order in the nature of certiorari or prohibition and opted instead for a declaration. Rule 98.02 empowers the Court, on a summons for judicial review, to grant the most appropriate relief available under r.98 - and that includes a declaration - despite the fact that a prayer for it is not included in the summons. The defendants do not say that the assessment panel was not bound to accord the plaintiff procedural fairness, or that its procedures are not amenable to judicial review, or that the plaintiff lacks standing. Cf. Selwood v. Minister for Police (1991) 41 IR 223. They oppose his claim on the merits. 13. A major grievance of the plaintiff relates to the topic of seniority. The word "seniority" has different shades of meaning in this sort of context. It may refer to a higher rank or to longer service in a particular rank. Perhaps it has other possible meanings as well. Neither the Act nor the Regulations define "seniority" as used in reg.46 but reg.11 states, in short, that "relative seniority" indicates the higher of different ranks and refers, as between two members holding the same rank, to the officer who has held the rank substantively for the longer time. I conclude that this is the sense in which seniority is used in reg.46. 14. It is a matter of common knowledge that seniority used to be a very important, if not the dominant, factor in public service appointments and promotions, and it may be that this was also the case in the police force. The 1989 amendments to regs.45 and 46 make it plain that merit is generally to be the appointment criterion now. Mr Heywood-Smith submitted that the Guidelines, which antedated those amendments, still reflect an outmoded seniority system. They should have been revised to take account of the change in direction that was made in 1989. I am not sure that the premiss of this argument is sound and that the matters that might properly be taken into account under the 1982 Regulations were not already confined to the topics listed in pars.(a) to (g) of sub-reg.(2) of reg.46. That was probably the implication of the apparently comprehensive listing of those subjects, particularly when read with sub-reg.(3). Be that as it may, I cannot find anything in the Guidelines themselves to support the plaintiff's submission in this respect. In my opinion, the Assessment Matrix and other documents were not defective because they did not deal expressly with the possibility of two candidates being "equally suitable" within the meaning of reg.46(3). It is open to an assessment panel to assess relative suitability by reference to an appropriate and comprehensive marking system of the kind used in this case. Mr Heywood-Smith had one particular criticism to make, as to seniority, that I shall refer to in a moment, but the general complaint, that seniority was "built into" the Assessment Matrix that was modelled on the Guidelines forms and used in this case, and that the procedures did not cope adequately with the possibility of two applicants being equally suitable for the position, is not made out. 15. The Assessment Matrix was a printed document of half a dozen pages. It listed a series of subjects or attributes under different heads and provided for a mark to be placed by way of assessment against each topic. Most topics were weighted to accord with the assessment panel's judgement of the topic's relative importance. Then all the scores were added together giving a total mark, in the plaintiff's case, of 767. (The successful candidate's score was 861. The maximum possible score for any candidate was 1048.) The first topic on the Assessment Matrix, designated as an essential requirement, was "Qualifications - Appointed a Commissioned Officer." For this the assessment panel awarded the plaintiff a D rating which was translated, according to the general rating code, into a score of 2. Such a rating was described, on the assessment panel's numerical scale of 1 to 8, as "low standard". The successful candidate (the second defendant) got a C for this qualification, and that earned him a score of 6. The plaintiff complains that this was a differentiation based on seniority and so transgressed the clear requirements of reg.46. 16. There is a dispute on the evidence with respect to this matter. It was Mr Beck's duty under the Guidelines to tell the plaintiff afterwards that he had not been recommended for the position, and the two men had a discussion about the plaintiff's marks. The plaintiff made notes of the conversation a short time later and, given that I see no reason to doubt the honesty of either officer, one might think that this would make the plaintiff the more reliable witness in the event of any conflict. However, it is plain, in my opinion, that the plaintiff has a mistaken recollection, despite his notes, about another of the matters on which the two witnesses are not agreed - it is made the subject of paragraph 11(b) of the plaintiff's affidavit of 16 June 1992 - so I do not take it for granted that the plaintiff's version necessarily is to be preferred on account of his notes on this particular subject. I think the plaintiff was probably upset at the time and that this accounts for an imperfect recollection of the conversation. I accept Mr Beck's evidence that the assessment panel gave the plaintiff a lower score on the line "Appointed a Commissioned Officer" because, having been a commissioned officer for a shorter time than the other applicants, he had had less experience as a manager than the others - that the criterion was managerial experience, not seniority in the force - and that this was what he told the plaintiff in their conversation. 17. I think it a fair general proposition that length of service as a commissioned officer will usually be some sort of guide, though an imprecise one, to an applicant's experience at a managerial or supervisory level and that this is a legitimate factor for an assessment panel to take into account in selecting a person for appointment to a higher rank. The plaintiff had been an inspector for less than 3 years. The other applicants had been commissioned officers for much longer. So far, then, the position would appear to be unexceptionable. However, there was another section of the Assessment Matrix that dealt expressly with experience. It did not list any experience topics under the head "essential requirements", but it listed four as "desirable requirements" including "motivation and supervision of staff at middle management level" and "supervisory management level in general duties or investigative area." It seems to me that these specific topics largely duplicate the qualification of managerial experience that is said to be implicit in the bare reference, earlier in the Assessment Matrix, to commissioned rank. While, therefore, I accept the notion that length of service in a particular rank may be a rough indication of experience, the relevant treatment of experience elsewhere in the Assessment Matrix certainly lends support to the plaintiff's seniority argument. At best, from the Commissioner's point of view, the inclusion of "Appointed Commissioned Officer" as an assessable topic, and not a bare qualification for the job, is a largely pointless and certainly a potentially misleading duplication; at worst, it is a thinly disguised allusion to seniority and thus transgresses reg.46. I accept the evidence that the assessment panel in this case treated the disputed item as one going only to experience, but other assessment panels on other occasions may be disposed to interpret the item differently. I think it would be better if that line were removed from the Assessment Matrix and the matter of experience dealt with in express terms disengaged from any possible implication of mere seniority. 18. Regulation 46(2) specifies certain qualifications or attributes of an applicant to which an assessment panel must have regard when examining the applications and making an appropriate recommendation, including
    "(a) efficiency in the performance of police duties;
    ...
    (d) nature of any studies or training undertaken;
    ...
    (f) ability to command the respect of and to work harmoniously
with others; ..." 19. The plaintiff says that the assessment panel in this case did not take these matters into account in assessing him or, presumably, the other applicants. I think it plain that all of these matters were dealt with, expressly or by obvious implication, in one section or another of the Assessment Matrix. The matter of efficiency would be a natural aspect of several of the various "abilities" specified in the Assessment Matrix as essential or desirable requirements. It was not necessary that efficiency be considered as a distinct and comprehensive subject if it was already covered, in one way or another, within particular specified topics designed to bring out different aspects of an applicant's qualifications including his efficiency. So also with par.(f) of reg.46(2). The nature of the plaintiff's studies and training was sufficiently covered in the sections headed "Qualifications" and "Knowledge". The written application form gave an applicant every opportunity to describe his qualifications with respect to paragraphs (a), (d) and (f) and it is obvious from a perusal of his application that the plaintiff took that opportunity. I see no reason to think that the assessment panel did not have regard to the matters specified in the regulation when making its assessment. 20. Next, the plaintiff submitted that there were four topics in the "knowledge" section of the Assessment Matrix that the assessment panel simply did not deal with because they ran out of time. They sought no information at the interviews from any of the applicants on those subjects, and just allotted the same rating and score to each applicant. Thus (it is said) the assessment panel failed to make an adequate investigation and assessment of the plaintiff's knowledge in the specified respects, and this was to his disadvantage because he happened to have a specialized knowledge of those particular topics. This allegation is made with respect to the four subjects described in par.11(b) of the plaintiff's affidavit. The difficulty with this submission is that it is contradicted, in large part at least, by the circumstantial evidence. A comparison of the individual Assessment Matrixes that are in evidence indicates that the three candidates in fact received the same score for two of the four subjects but not for the other two. Mr Beck explained why. I see no reason to reject his evidence about this. I think that, despite the notes that the plaintiff made soon afterwards, he must have misheard or misunderstood whatever Mr Beck said to him about this subject. The claim that the plaintiff was not individually and properly assessed on all or any of these four topics is not made out. 21. It is pertinent to say, apropos of this and other matters, that it is not for this Court to remark the plaintiff's Assessment Matrix, substituting its own opinion for the assessment panel's. This was a specialist committee. It was entitled to bring to its task its general knowledge of the police force, and that included an estimate of the knowledge and experience that the plaintiff and the other applicants could be expected to have gained in the different posts they had held in the course of their police careers. As long as it took into account the matters relevant to a particular essential or desirable requirement, including the plaintiff's claim in any instance to some special talent or qualification, it was for the assessment panel to decide what figure, within reasonable bounds, should be put against the topic in question. 22. The plaintiff complains that the assessment panel gave excessive weighting to the plaintiff's conduct record. This is a reference to two breaches of the Police Regulations that the plaintiff committed in 1974 and 1988. The details are not important for present purposes. The panel gave the plaintiff a C for conduct which, because of the weighting factor, resulted in a score of 150. (The successful candidate scored 175. He had no offences on his record.) The plaintiff argues that his offences were menial; if they did not stop him becoming an inspector in 1989, they should not have been taken into account, to the extent of 25 points, in deciding whether he should be made a superintendent in 1992. That was unfair. Mr Beck was questioned about this. He took the view that a police officer's conduct right through his career is relevant every time he is considered for promotion, although it will be necessary to put any transgressions into the correct perspective. Presumably this was the view that the other members of the panel took as well. It is impossible to say that they were in error. No doubt different views may reasonably be held about the weight to be given to breaches of regulations in this situation, whether indeed they should after a certain lapse of time or in certain circumstances be completely ignored. Again, it is not for this Court to substitute its own view of the matter for the assessment panel's. Certainly the assessment panel's taking the two breaches in account could not be described as "manifestly unreasonable". See Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985) 162 CLR 24, at 40-2. After all, we are talking here of 25 points out of a maximum possible score of more than 1,000. In my opinion, this submission cannot succeed. 23. An issue was raised about the correlation between different aspects of a candidate's knowledge, specified as essential requirements, and the same aspects when specified as desirable requirements. There were six such topics in the Assessment Matrix that were common to both categories. The only difference between them was the extent of the knowledge required. For instance, one of the essential requirements of knowledge was described as "sound knowledge of Government Management and Employment Act". The corresponding desirable requirement was "comprehensive knowledge of the Government Management and Employment Act". 24. The other areas of knowledge specified on this page of the Assessment Matrix were distinguished in the same way - a sound knowledge of a particular topic was said to be essential, a comprehensive knowledge of the same topic desirable. In each case the candidate was given a rating by letter and this had a corresponding numerical value. In the case of essential requirements the numbers were weighted by a factor of 1, giving a score for a particular topic the same as the numerical value. The weighting for a desirable requirement, however, was either 3 or 4, so any difference between the applicants in their initial rating for a particular topic of desirable knowledge was greatly magnified when it came to marking the actual score for that topic. The plaintiff complains that the assessment panel invariably gave him a rating for a specified desirable knowledge requirement that was one letter lower than the rating it had given him for the corresponding essential knowledge requirement. For instance, it gave him an A, which translated into a numerical score of 8, for "sound knowledge of relevant statute and case law" (an essential requirement) and a B, that is, a score of 21, for "a comprehensive knowledge of relevant statute and case law" (a desirable requirement). And so on for all the other knowledge topics that were common to both categories of requirements. True, it followed the same practice with the other two candidates, but the plaintiff says that the assessment panel's practice in this respect worked to his disadvantage; at any rate, an erroneous assessment system is not to be condoned or ignored simply because it is applied indiscriminately to every candidate who is subjected to it. 25. Mr Beck explained the assessment panel's way of dealing with this section of the Assessment Matrix. There is a different level of knowledge required under "desirable" from that required under "essential" in respect of any particular topic. That is the distinction made by the expressions "sound knowledge" and "comprehensive knowledge". He emphasized that a candidate who receives a C rating meets job requirements. However, it stands to reason that, given the much greater knowledge required, it will be very difficult for a candidate to get the same rating in both categories. The assessment panel also bears in mind that a requirement of comprehensive knowledge is in the nature of things very demanding and it is only to be expected that achieving a maximum possible score will be very uncommon. He acknowledged that any error in a candidate's rating in the "desirable requirements" section will be magnified three-fold or four-fold in the candidate's actual score. 26. I see the force of Mr Beck's reasoning but I do not think that it can be accepted without qualification. If a candidate is properly given a rating of B or lower for a particular "sound knowledge" requirement, it almost necessarily follows that he must have a lesser or more attenuated "comprehensive knowledge" of the same topic. I hesitate to be dogmatic about it - perhaps it depends precisely what is meant by "comprehensive" - but it would certainly be open to the assessment panel, in my opinion, to interpret the expression "comprehensive knowledge" in a way that generally produced that result. However, I do not think that the same virtually automatic marking down of the candidate's "sound knowledge" rating may be made where he gets an A in that category. It cannot be taken for granted in such a case that the candidate's comprehensive knowledge of the topic is not also of the highest standard, justifying an A in that category as well. That could only be determined after making an individual assessment of his comprehensive knowledge of the topic. Even bearing in mind the assessment panel's legitimate concern to keep up its standards and to allow always for the case of a candidate with quite exceptional qualifications, it will still be obliged to assess individually, according to the demonstrated merit of the case, the comprehensive knowledge of any candidate who gets an A for his sound knowledge of a given topic. The fact that all three candidates here got a B rating for their comprehensive knowledge wherever they got an A for their corresponding sound knowledge - and there were many such instances - strongly suggests that the B rating was arrived at mechanically and was not truly assessed. In my opinion this ground of complaint is made out. 27. Finally, the plaintiff complains that the assessment panel's interview procedure was fundamentally defective. On most topics he was not asked any questions at all, which meant that the assessment panel simply failed to inform itself in the manner and to the extent that the regulations and the Guidelines required. So to argue, in my opinion, betrays a misunderstanding of the function of the interview. The application for promotion that the plaintiff was making was an application in writing. The Guidelines and the forms made that plain. The function of the interview was to allow the assessment panel to test him and to ask him questions, and perhaps to make some appraisal of him from the way he presented himself at the interview, and also to allow the applicant to draw attention to any aspect of his application that he thought needed emphasizing or explaining. And that, as I understand it, is what happened in the 20 minutes occupied by the interview of the plaintiff. He had already argued his case for appointment, specifying his qualifications, in his written application. The interview gave him the opportunity to inform the assessment panel, on his own initiative, that he had special qualifications that might not be apparent from a mere consideration of his formal qualifications and experience. There is no reason to think that the assessment panel did not have regard to everything that he stated in his written application or put to them orally at the interview. The plaintiff agreed in evidence that at the end of the interview Mr Beck asked him whether there was anything he wanted to say that would convince the assessment panel that he was the most suitable applicant for the job. He does not say that he had insufficient time to make his points. In my opinion, the procedure that was laid down in the Guidelines and followed in this case was fair and acceptable in the circumstances. 28. I have held that the assessment panel's rating procedure was flawed inasmuch as it made an automatic adjustment one step downwards whenever assessing an applicant's comprehensive knowledge of a topic for which the applicant had been given an A for the prior corresponding assessment of his sound knowledge. However, the difference between the plaintiff's total score and the second defendant's was 94. Experience shows that, as one would expect, an assessment panel's recommendation to the Commissioner generally goes to the candidate with the highest score. Even if one assumes that the plaintiff would have scored an A for his comprehensive knowledge of every topic in respect of which for his sound knowledge he scored an A, and that the second defendant by contrast would not have achieved any scores of A in a like revision of his comprehensive knowledge ratings - a rather unlikely result, one might think -, the improvement in the plaintiff's total score could not have made any difference to the result. Nor, indeed, would the position have been any different in that respect had the assessment panel not given the plaintiff a differential score for the Commissioned Officer item. That consideration will not necessarily be decisive in a claim for relief under r.98, but it is certainly a matter to be taken into account. See Hanks v. Minister of Housing and Local Government (1963) 1 QB 999, at 1020; Minister for Aboriginal Affairs v. Peko Wallsend Limited 162 CLR, at 40. In my opinion, the errors that were made in this case were for practical purposes insignificant. It would not be proper in all the circumstances to allow them to vitiate the assessment panel's proceedings and recommendation. 29. The claim must be dismissed.