Diss, D.M. v Telecom Australia Promotions Appeal Board
[1985] FCA 163
•26 APRIL 1985
DISS v. TELECOM AUSTRALIA PROMOTIONS APPEAL BOARD (1985) 6 FCR 323
Administrative Law
(1985) 6 FCR 323, (1985) 10 IR 241
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.(1)
CATCHWORDS
Administrative Law - Judicial review - Natural justice - Whether right of cross-examination exists in review of administrative decision by Promotions Appeal Board - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Telecommunications Act 1975 (Cth), ss 49, 51.
HEADNOTE
Held: In proceedings before a tribunal for the review of an administrative decision there is no requirement in the rules of natural justice that a party should have the right to cross-examine other parties or those who provide information or evidence to the tribunal.
Finch v. Goldstein (1981) 55 FLR 257; 36 ALR 287; Ansell v. Wells (1982) 63 FLR 127; 43 ALR 41, referred to.
HEARING
1985, April 18-19, 26. #DATE 26:4:1985
APPLICATION
Application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The applicant in person.
A Maroulis, for the respondents.
Cur adv. vult
Solicitors for the respondents: Australian Government Solicitor.
SMW
JUDGE1
26 April 1985
FORSTER J. This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of the decision of the persons comprising a Promotions Appeal Board (the Board) established under the Telecommunications Act 1975 (Cth) (the Act) to disallow the appeal of the applicant against the provisional promotion of one P A McWilliams and seventeen others to positions of lines servicemen, Operations Department, Adelaide South, District Telecommunications Branch, External Plant Section. The applicant, a lineman and McWilliams and the other seventeen eventually provisionally promoted and some others applied for provisional promotion. On 6 December 1984 the provisional promotion of McWilliams and the seventeen others was gazetted. The applicant lodged an appeal against the provisional promotion of all eighteen of those provisionally promoted, upon the ground stated in the notice "Equal efficiency and seniority except in the case of A. L. Dawson (Sup. Eff.)". The notice of appeal appears to be dated 29 December 1984 but it was received by the Board on 24 December 1984. The date on the notice must therefore be incorrect. Nothing, I think, turns on this. The significance of the words used in stating the ground is that the applicant says that Dawson is senior to him and the applicant is senior to the others provisionally promoted. The applicant appeared in person which placed him under something of a disadvantage. He tended to spend time in evidence and in argument upon matters which were entirely irrelevant to the question - the subject of the proceedings - and he tended to make assertions entirely unsupported by any evidence.
It is rightly conceded by the respondents that the applicant is a person aggrieved by the decision of the Board and that the decision was made under an enactment, viz namely, the Telecommunications Act 1975.
A number of grounds of the application were stated in it and amplified by particulars supplied by the applicant and I deal with them in the order stated.
That a breach of the rules of natural justice occurred in connection with the making of the decision. This allegation was amplified by particulars and was based on the refusal of the Board fully to accede to the applicant's request to it that special procedures be implemented for the hearing of the appeal. By letter to the chairman of the Board the applicant asked for the following:
(1) Reciprocal rights to cross-examination of parties and referees.
(2) Copies of applications and statements be supplied by the Board to each party as a matter of course.
(3) Full verbatim transcripts of the hearings be produced and supplied to all parties as a matter of course.
(4) Whisperers' evidence should be disallowed as inconsistent with the concept of natural justice.
(5) Commission and union members of the Board to be equal in status.
Rights of cross-examination were refused; copies of applications and statements were supplied to the applicant; a full verbatim transcript was not prepared or supplied; the applicant was assured by the chairman that the Board would not inform itself from any source unknown to the applicants and the applicant was unable to prove that this undertaking was broken; and the applicant conceded before me that the members of the Board appointed by the Commission and by the union were of roughly equal status.
This leaves the matters in pars (1) and (3) as live complaints. It is my view that in the circumstances of an appeal hearing of this sort the dictates of natural justice require neither rights of mutual cross-examination nor the provision of a verbatim transcript. So far as the former is concerned, see generally, Finch v. Goldstein (1981) 55 FLR 257; 36 ALR 287 and Ansell v. Wells (1982) 63 FLR 127; 43 ALR 41. So far as the latter is concerned, the provision of a transcript, as well as being onerous, requiring in this case at least nineteen copies, would have been of very little practical use to the applicant.
There was one other matter, not complained of in the particulars by the applicant but complained of at the hearing, which might have led to a conclusion that natural justice was, in a rather narrow way, denied to the applicant. The appeal hearing took place on 18 February 1985. The applicant was given copies of the Commission's report on all applicants, supervisors' reports on all applicants and supporting statements submitted by all applicants. The applicant was allowed one and three-quarter hours to peruse these papers with respect to those provisionally promoted. When he was called before the Board he said that he had had enough time to read and absorb all of these papers except the supervisors' reports with respect to some of those provisionally promoted. He was offered further time, but declined. He was told that those papers would be available for perusal immediately after his appearance before the Board. The applicant did not avail himself of this offer either and offers no explanation for either failure. On the morning of 22 February the chairman of the Board sent a telegram to the applicant as a result of which the applicant spoke to him by telephone. The applicant had a flexi-day off on the day in question. The chairman informed the applicant that a decision with respect to his appeal had not yet been made and once more offered to make the unread reports available, but the applicant declined to avail himself of this opportunity because, as he said, he had some private business to attend to. I should mention that the Board spoke to all of the applicant's referees except one who was interstate and unavailable.
The appeal was dismissed. The applicant was informed by telephone during the week following Friday 22 February by an employee of the Board of the result of the appeal and that the decision had been made late on 22 February. An affidavit by Neil Harmer, a member of the Board, deposes to the fact that a unanimous decision was made by the Board on 22 February to disallow the appeal. The form T84/48/1 "Determination of Appeal" records the date of hearing of the appeal as 18-22 Februrary 1985. At the bottom of this form the "date of determination" is included in handwriting as 21/2/85. If this were the date of the determination, then the chairman's offer on the morning of 22 February to make the unread reports available to the applicant was pointless and cynically deceptive and might have led to a conclusion that the applicant had been denied natural justice. This issue has troubled me but I have finally come to the decision that this conclusion should not be reached for two reasons. The first is that it seems to me that the handwritten date is more probably than not a mistake in view of the other evidence as to the date of the determination being 22 February. The second is that on 18 February, when offered two opportunities to read the reports, the applicant did not do so and no reason is given for this failure. I think it is likely that the applicant did not feel that reading the reports would be of much assistance to him. His further failure on 22 February to avail himself of the third opportunity offered because he had some unspecified private business to attend to, indicates a lack of interest in the matter of the unread reports, whether or not the chairman's offer was genuine. Even if the chairman's offer was deceptive the applicant can hardly claim that he was denied natural justice by being offered an ineffective opportunity to read reports in which he had displayed so little interest.
2. As to failure to observe procedures, the applicant's complaints are first, that full inquiries were not made into his claims as an appellant as is required by s 51(4) of the Act. This claim was made but no evidence was given or called to support it. Second, it was complained that the applicant's complaints to the Board concerning irregularities in the selection procedures employed by the panel appointed to select those applicants who were to be provisionally promoted were not inquired into by the Board. Indeed the chairman specifically said that the Board would not inquire into such matters and pointed out to the applicant that the function of the Board was to make its own independent assessment of the relative efficiency of the appellant and those who had been provisionally promoted. The attitude of the chairman was, in my view, plainly right. Section 51(2) of the Act provides that the applicant may appeal against the provisional promotions upon the ground of superior efficiency or of equal efficiency and seniority. Section 51(4) of the Act requires the Board to inquire into the claims of the appellant and the persons provisionally promoted and to determine the appeal. Imperfections in the selection process may no doubt give rise to wrong selections, but those imperfections are, in my view, irrelevant to the proceeding before the appeal Board which must choose between the appellant and those provisionally promoted on the basis of efficiency or seniority, or both. In any event I permitted the appellant to give evidence of what he saw to be imperfections in the selection process and it is my view that the imperfections alleged by him were either not established as imperfections or were irrelevant to the selection process.
3. Under the heading, "errors of law" the applicant mounted an ingenious but fallacious argument that the provisional promotions were not subject to appeal and that he, the appellant, had a prior right to be promoted "by dint of dates" by which I understood him to mean because of his seniority. The appellant apparently saw no inconsistency in lodging an appeal and then arguing that his appeal must fail because it was incompetent. He maintained, however, that because of his greater seniority to all but one (Dawson) of those promoted he was automatically entitled to be promoted ahead of them, irrespective of efficiency. This argument has only to be stated to reveal its absurdity. The applicant bases himself on s 49 of the Act, but, in my view, misunderstands that section which provides that in circumstances where the Commission has determined that an officer shall not be promoted to a specified position unless he has passed an examination and where the Commission determines that promotion to that position should only be made in accordance with s 49 and an officer passes an examination for promotion to that position the officer shall be promoted to such position as soon as practicable and no appeal against such promotion lies. The situation envisaged by s 49 just does not apply here, because the Commission never determined that the promotions in question should only be made in accordance with that section.
4. The applicant's contention, that there was no evidence or other material to justify the making of the decision, is expanded by his particulars to an allegation that there was a lack of real evidence in the claims of "most of the provisional promotees". This allegation is made but is entirely unsupported by any evidence and must be rejected.
5. The applicant contends that the decision was otherwise contrary to law and this contention as expanded by the particulars is
"because it has, in effect, endorsed the defamatory statements
made by the selectors and by Mr Sherrah, the delegated officer,
that I was the least efficient of all applicants . . .
additionally it has had the effect of endorsing my demotion from
acting lines-serviceman to lineman in December 1979 . . . the
decision has also had the effect of endorsing a breach of an
undertaking or contract given in Headquarters' Bulletin of July
1st 1977".
In order to dispose of this complaint it is sufficient to say that, beyond evidence that Sherrah said that the applicant was the least efficient applicant for promotion, there is no evidence at all to support the details of the complaints and those details, even if proved, would not be evidence of anything contrary to law.
6. The allegation that the decision was induced or affected by fraud, as expanded in the particulars, comprises a complaint that the Board did not make full and complete inquiries into alleged irregularities in the selection procedures which are, as I have said, irrelevant and which are not in any event supported by evidence, except in the case of the score sheet with respect to the applicant kept by one Hanley, one of the selection panel on which some figures have been altered, a circumstance from which without more it would not be possible to draw any inferences.
It is quite apparent that the applicant has a strong sense of injustice as to his treatment by the Commission. He kept looking back to his demotion in 1979 without adducing any evidence either from himself or from any other source that there was anything unfair or wrong about this demotion beyond hs bald assertion that this was so. The applicant is an intelligent man who managed his case very well in the circumstances. Unhappily for him, if he has any genuine complaints of substance against the procedures of the Board, he has failed by a long margin to establish them. His application for review must be dismissed.
ORDER
Orders accordingly
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