Douglas v Allen

[1984] FCA 75

Re: HEATHER CATHARINE DOUGLAS
And: ROBERT NORMAN ALLEN and RAY JOLLIFFE; JAMES CHARLES VENIS;
EWAN EDWIN HAZELL; DOROTHY PATRICIA ARNO; ROBERT VIRGONA and
PHILLIP JOHN IBBOTSON; WAYNE KENNETH BRADLEY and PATRICIA HACKETT (1984) 1 FCR
287
No. ACT G94 of 1983
Administrative Law
8 IR 288

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative law - judicial review - Commonwealth Teaching Service - Australian Capital Territory Technical and Further Education component - application for Master Teacher classification - recommendation by Eligibility Committee and Review Committee - adoption of recommendation by Director of service - whether decisions subject to judicial review - extension of time to institute proceedings - whether rules of natural justice apply to decisions - legitimate expectations - procedure for applications set down in Handbook - expectation that application to be dealt with in broad conformity with Handbook - whether breach of rules of natural justice - necessity for oral hearing or further enquiries

Administrative Decisions (Judicial Review) Act 1977

Commonwealth Teaching Service Act 1972

Commonwealth Functions (Statutes Review) Act 1981 Part VIII

Administrative Law - Judicial review - Legitimate expectation - Whether applicant for higher appointment has legitimate expectation as to manner of determination of application - Extent of rules of natural justice applicable - Administrative Decisions (Judicial Review) Act 1977 (Cth), Commonwealth Teaching Service Act 1972 (Cth), Commonwealth Functions (Statutes Review) Act 1981 (Cth), Pt VIII.

HEADNOTE

The entitlement of an officer of the Commonwealth Teaching Service to seek reclassification as a recognition of her teaching expertise constituted no more than an opportunity to seek such reclassification and did not give rise to a legitimate expectation that the reclassification would occur. The officer did however have a reasonable expectation that her application would be dealt with in accordance with the published procedures for the determination of such applications and fairly and properly.

The requirement of fairness was not contravened either by the failure of those determining her application to exhaustively investigate conflict between the officer and her superiors where no charge of misconduct or complaint had been made against the officer or by the fact that she was not given a hearing in person at each stage of the determination.

Ansell v. Wells (1982) 43 A.L.R. 41; Attorney-General Hong Kong v. Ng Yuen Shiu (1983) 2 W.L.R. 735; Cole v. Cunningham (1983) 49 A.L.R. 123; F.A.I. Insurances Ltd v. Winneke (1982) 56 A.L.J.R. 388; Heatley v. Tasmanian Racing and Gaming Association (1977) 137 C.L.R. 487; Mobil Oil Australia Pty Ltd v. Federal Commissioner of Taxation (1963) 113 C.L.R. 475; Salemi v. Mackellar (No. 2) (1977) 137 C.L.R. 396; Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. D. 149; R. v. Amphlett (1915) 2 K.B. 223; R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546; R. v. Whalley; Ex parte Bordin and Co. (1972) V.R. 748, referred to.

HEARING

Sydney, 1984, February 22, 23; April 3. #DATE 3:4:1984

APPLICATION.

Application for orders of review of administrative decisions pursuant to the Administrative Decisions (Judicial Review) Act 1977.

L. Horten, for the applicant.

J. Flick, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Manfred Stinson Dougal.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown Solicitor.

G.F.VANDELEUR

ORDER

1. The application is dismissed.

Application dismissed.

JUDGE1

The applicant Mrs Heather Catharine Douglas seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act"). Mrs Douglas is an officer of the Commonwealth Teaching Service established by the Commonwealth Teaching Service Act 1972, as amended (the "Teaching Service Act"). In 1982 she applied to be classified as eligible for promotion to Master Teacher classification within the Australian Capital Territory Technical and Further Education Component of the Commonwealth Teaching Service. She was unsuccessful in her application and now seeks orders of review in respect of a number of decisions which she alleges were made in the course of dealing with her application, and in respect of conduct said to have been engaged by officers of the Teaching Service in relation to those decisions.

1. Section 19 of the Teaching Service Act which was enacted in its present form by the Commonwealth Functions (Statutes Review) Act 1981, provides that the Commonwealth Teaching Service established and in force immediately before the commencement of that section is continued in existence for all purposes. The Service is divided into four components. The relevant component for present purposes is the Australian Capital Territory Technical and Further Education component (the "TAFE component"). The first respondent is the Director of the Office of the Australian Capital Territory Further Education in the Department of Education. He is responsible for the overall organization of the Australian Capital Territory Further Education system. He is designated as the relevant authority for the TAFE component of the Commonwealth Teaching Service under sub-s. 19(5) of the Teaching Service Act.

2. The second respondents are the members of an Eligibility Committee which considered Mrs Douglas' application for assessment of her eligibility to apply for Master Teacher classification and recommended that she be deemed ineligible for such classification. The third respondents are the members of a Review Committee which considered the recommendation of the Eligibility Committee and decided that the recommendation should be supported.

3. Mrs Douglas claims that the decisions of the Eligibility Committee and the Review Committee to recommend against her application and the decision of the Director to accept the recommendation were decisions of an administrative character which are reviewable under the Judicial Review Act. She claims to be aggrieved by the making of the decisions because, so it is alleged, breaches of the rules of natural justice occurred in connection with the making of the decisions. A claim that a decision to adopt certain procedures laid down in a Handbook (to which I shall presently refer) was reviewable, was included in the relief originally sought, but was not pressed.

4. Since early 1981 Mrs Douglas has been working at the Woden College of Technical and Further Education in the Department of Secretarial Studies as a Secretarial Studies teacher. On 16 April 1982 she lodged an application for her assessment for elibility to apply for Master Teacher classification in the Australian Capital Territory TAFE component of the Commonwealth Teaching Service. In due course she received an acknowledgement of her application and was informed that she was eligible to be assessed.

5. The applicant claims that breaches of the rules of natural justice occurred when her application was dealt with. Since her application was dealt with in accordance with established procedures for assessing eligibility for Master Teacher classification, it is necessary to refer in some detail to those procedures.

6. The Master Teacher classification was introduced
   into the TAFE component in 1979 by the then Commonwealth Teaching Service Commission. The aims of the classification are set out in paras. 1.3 and 1.4 of the 1982 Handbook of Instructions and Guidelines for Peer Assessment and Master Teacher Eligibility ("the Handbook"). The Handbook was issued by the Commonwealth Teaching Service. The practical effect of achieving Master Teaching status is that a Band 1 teacher is paid at the higher rate applicable to Band 2 classification. Mrs Douglas is a Band 1 teacher. There are five Band levels. A Band 1 teacher who achieves Master Teacher status remains in his or her Band 1 position. That is to say, achievement of Master Teacher status does not involve a promotion or transfer,but does lead to an increase in salary.

7. The procedures involved in Master Teacher
   assessment were developed in consultation with and with the concurrence of a body known as the Advisory Committee to the Commonwealth Teaching Service Commissioner. This body comprised the Commissioner as Chairman and representatives of other groups including the Australian Capital Territory Teachers' Federation. In summary, the process involved in Master Teacher assessment for 1982 was as follows:
   
   

(a) A teacher desiring assessment made formal application to the Director.

(b) If the teacher met the qualifications set out in the Handbook, an assessment panel was formed. This consisted of three members, being a chairperson appointed by the Principal of the College in which the applicant was located, and two other members selected by the chairperson from persons nominated by the teacher.

(c) The teacher prepared a report setting out his or her claims.

(d) The panel then considered the application and prepared its report. It held discussions with the teacher and gathered information from whatever sources it considered appropriate. The teacher received a copy of the panel's report.

(e) The report was then examined by an Eligibility Committee comprising a chairperson nominated by the Director and four officers nominated jointly by the Teachers' Federation and the Director.

(f) After consideration of the panel's report and any supplementary information submitted by the teacher, the Eligibility Committee made a recommendation to the Director. Before recommending against eligibility, the Committee discussed with the assessment panel the areas, if any, in which the teacher had failed to reach the level of performance expected and considered a further statement from the panel on those areas. Reasons for recommending against eligibility were provided to the Director.

(g) The Director then decided on the recommendations made to him and advised the teachers accordingly. Unsuccessful applicants were advised of their right of appeal to a Review Committee.

(h) If a review was sought, a Review Committee comprising a chairperson nominated by the Director and two officers nominated jointly by the Teachers' Federation and the Director, were appointed.

(i) The Review Committee then considered the following material:

(i) the assessment report on the teacher;

(ii) a copy of the Eligibility Committee's notification to the teacher's panel, indicating the areas requiring clarification or elaboration;

(iii) the written response of the teacher's panel following its discussions with the Eligibility Committee; and

(iv) the reasons given by the Eligibility Committee when finally recommending to the Director that any particular applicant be deemed ineligible.

(j) The Director then decided on the recommendation and advised the applicant.

(k) Neither the Eligibility Committee nor the Review Committee had any personal contact with the teacher during their deliberations.

1. The Chairman of the assessment panel constituted to
   consider Mrs Douglas's application for eligibility was Mr Michael Moore. In 1982 he was the Head of the School of Community Education. Although he knew who Mrs Douglas was, he had had no contact with her before his appointment as chairman of her assessment panel.

2. Mrs Douglas submitted to Mr Moore the names of
   three Band 2 teachers, none of whom had any professional knowledge of her. From the names submitted by Mrs Douglas Mr Moore chose that of Mr T. Farley. Mrs Douglas also submitted the names of three of her Band 1 peers to Mr Moore, and from these names Mr Moore chose that of Mrs M Ball. In the result, the assessment panel consisted of three people none of whom had had any direct personal professional knowledge of the applicant prior to the assessment process.

3. The panel met with Mrs Douglas and considered
   comprehensive documentary material submitted by her. Each panel member read this material and discussed it extensively with her.

4. According to Mr Moore, whose evidence was not
   challenged, an assessment strategy was worked out and agreed between the panel members and Mrs Douglas. She attended all meetings of the panel. Panel members attended several of her classes. About thirty hours of her teaching was surveyed. In addition, Mrs Douglas submitted considerable documentary evidence of teaching performed prior to the assessment process. Following each period of teaching observed panel members had meetings and discussions with her.

5. Members of the panel interviewed a range of people
   concerning Mrs Douglas' professional performance. These included all her full-time colleagues, some of her part-time colleagues, students, Head of Department, and others. In addition, some of her former colleagues were contacted. Mr Moore estimated that about 25 to 28 separate individuals were interviewed on behalf of Mrs Douglas.

6. During the assessment process meetings were
   frequently held with Mrs Douglas and all evidence gathered was discussed at length with her. Mr Moore estimated that about 15 separate meetings were held between the panel and Mrs Douglas, the average duration of the meetings being at least two hours. She also initiated discussions with individual members of the panel and Mr Moore himself had at least five such meetings with her, each lasting more than two hours.

7. According to Mr Moore, the frequency and length of
   these discussions were occasioned by the panel's attempt to be absolutely fair to Mrs Douglas. He said that she was unwilling to accept any negative comment. She claimed that such comment was either wrong or deliberately vindictive and she required the panel to gather alternative or new evidence which she claimed would prove her point of view. Mr Moore said that sometimes this was in fact the case, and at other times it was not.

8. During the assessment process the panel members
   showed and discussed with Mrs Douglas drafts of sections of the report they were proposing to make. She continually queried and objected to any negative comment in the report. She required the panel to gather additional evidence on matters dealt with in the report, and attempted to prove internal illogicality in the report. She also claimed that some evidence gathered by the panel was malicious.

9. According to Mr Moore he gave more than 150 hours
   of his time to the assessment of Mrs Douglas. He said that the other two panel members each contributed in excess of 100 hours of their time.

10. The panel's report was submitted to the Director of
    the Office of Australian Capital Territory Further Education on or about 6 August 1982. A copy of the report had already been received by Mrs Douglas herself on 2 August 1982. After she received it she gave to the panel a further statement making comments upon the panel's report. Section 3.8 of the report made observations upon, inter alia, Mrs Douglas' relationships with some of her senior colleagues, who were not supportive of her application.

11. On 12 August 1982 Mr R Virgona, the Chairman of the
    Eligibility Committee and one of the second respondents, wrote to Mrs Douglas and to the panel members indicating that a meeting would be held between the panel and the Eligibility Committee to discuss the panel's report, especially certain specified sections of it. The letter listed a number of sections of the report. Beside some of the enumerated sections a tick was placed, but no tick was placed against other sections. Section 3.8 appeared on the list without a tick. Mrs Douglas said that she formed the opinion that the Eligibility Committee was satisfied with the matters raised by the assessment panel in section 3.8 because no tick had been placed alongside it. I do not think this was an assumption which she was entitled to make. The fact that the Committee did not wish to raise specifically with the panel the contents of section 3.8 gave no indication of the Committee's views on the matters referred to in that section.

12. The letter of 12 August fixed a time and place for
    the meeting between the Eligibility Committee and the assessment panel. It also advised Mrs Douglas that:
    
    

"You have the right to read, consider and comment on the panels (sic) resume of the interview at this time and that the Eligibility Committee will consider any such comments before making its recommendation to the Director."

1. The meeting between the Eligibility Committee and
   the assessment panel took place on 18 August 1982. There was some general discussion of the assessment process and of the question whether the panel was expected to make a recommendation or not. There was also discussion of Mrs Douglas' professional impact, a matter upon which opinions varied. Mr Farley, who swore an affidavit in support of Mrs Douglas' application, said that, in his opinion, the Eligibility Committee would not have been in any doubt that the panel was recommending that Mrs Douglas be deemed eligible for Master Teacher classification. At the conclusion of the meeting, Mr Moore met with Mrs Douglas. He gave her a complete verbal summary of all that had gone on at the meeting. His discussion with her occupied more than two hours. On 18 or 19 August Mr Moore also gave her a handwritten resume of the panel's meeting with the Eligibility Committee. Mr Moore said that he believed this handwritten report complied with the requirements of para. 2.3.5 of the 1982 Handbook. This paragraph refers to a reply which the panel may make to the applicant's comments on the written resume of the meeting between the assessment panel and the Eligibility Committee.

2. On 20 August 1982 Mrs Douglas delivered a
   memorandum to the Chairman of the Eligibility Committee. In this memorandum she made comments on the written resume given to her by Mr Moore. She made lengthy observations on her past working experience and its relevance to her application for Master Teacher classification.

3. Evidence was given by Mr Jolliffe, a member of the
   Eligibility Committee. He said the purpose of the committee was to evaluate the professional performance of applicants for Master Teacher eligibility on the basis of material contained in various reports presented to the Committee and utilizing criteria specified in the Handbook. He said the Committee read and assessed the written documents submitted on behalf of all applicants, including Mrs Douglas. In her case, these documents included a supplementary statement submitted by her after she had seen the report prepared by her assessment panel.

1. Mr Jolliffe said that each member of the
   Eligibility Committee used a check list to assist in the appraisal of each applicant and subsequent discussion of the application. In its discussion with Mrs Douglas' assessment panel the Committee sought to clarify its individual and collective understanding and perception of her professional performance. Shortly after its discussion with the panel the Committee met to discuss all applicants, including Mrs Douglas. It had before it a written resume prepared by the panel concerning matters raised in its discussion with the Committee. The Committee accepted this written resume as the statement referred to in s.2.3.5 of the Handbook. It also considered further written material submitted to it by Mrs Douglas. It arrived at the decision that it should recommend that Mrs Douglas be deemed ineligible to apply for the status of Master Teacher. In all, it considered 10 applications for classification as Master Teacher. It recommended that four applicants be regarded as eligible for classification, and that a further six applicants, including Mrs Douglas, be deemed ineligible.

2. On 14 September 1982 the first respondent wrote to
   Mrs Douglas advising her that the Eligibility Committee had recommended that she be deemed ineligible at present to apply for classification as a Master Teacher, and that he proposed to accept the recommendation. She was advised that she could request the Review Committee to review her case. On 16 September 1982 she sought review of her case, and referred to a number of matters which she requested should be brought to the attention of the Review Committee. For the most part, the matters referred to were adverse comments by her on the objectivity and motivation of persons whose opinions had not supported her case.

3. On 21 September 1982 Mrs Douglas wrote to the first
   respondent claiming that the Eligibility Committee did not have before it a reply from the panel as specified in para. 2.3.5 of the Handbook. The applicant requested that the Review Committee be provided with copies of all documents relating to her application for eligibility, including the contents of her letters of 16 and 21 September 1982.

4. Apparently when the Review Committee met to
   consider the Eligibility Committee's decision it was at first unable to come to a decision because it was of the view that the assessment panel had failed to give a rating or judgment on what it regarded as the critical area of Mrs Douglas' professional relationships. Accordingly on 29 September 1982 the Review Committee wrote to the first respondent seeking his advice as to whether it would be appropriate for it to approach the panel to seek information on that matter. The first respondent advised the Review Committee that having regard to the terms of the Handbook it was not open to the Committee to itself approach the panel. However he advised the Committee that if it was unable, for the want of information, to come to a recommendation, he would consider referring the matter back to the Eligibility Committee to obtain the information. The Review Committee did not take up this offer. In due course it wrote to the first respondent in the following terms:
   
   

"The Eligibility Committee based its refusal to grant eligibility for Master Teacher on the grounds that Mrs Douglas did not meet the criteria related to 'educationally constructive professional relationships'.

The panel identified a polarisation between various respondents on this issue, but merely reported differing points of view. There was no attempt in 3.8 to reach a balanced judgement or make a rating.

Under these circumstances, the Eligibility Committee would not have had sufficient evidence before it to make a judgement that Mrs Douglas met all criteria.

We express our concern that an applicant may have been denied Master Teacher status because the panel did not make a judgement and the Eligibility Committee appears not to have demanded one.

Decision

That the recommendations of the Eligibility Committee that Mrs Douglas not be granted Master Teacher eligibility be supported."

1. Upon receiving this letter the first respondent
   wrote to the Chairman of the Eligibility Committee enclosing the Review Committee's letter and all the previous papers in Mrs Douglas' application. The letter was in the following terms:
   
   

"The Review Committee has given me a recommendation which may be correct in the technical sense, but which, on the grounds of natural justice, I cannot accept.

The Review Committee has indicated difficulty with the area of professional relationships and in particular with Section 3.8 of Form 111C. This relates to the fact that the original panel did not provide a rating or a statement setting out why the rating scale was not considered to be applicable. I would accordingly appreciate it if the Eligibility Committee would take the necessary action to remedy this."

1. In response to this letter the Chairman of the
   Eligibility Committee reconvened the committee. On 10 November 1982 he advised the first respondent that:
   
   

"The Committee in fact were unanimously agreed that they had made their valid recommendations to you previously and they reaffirmed this, stating that they had made their recommendations after due and proper consideration of all the permissible evidence placed before them."

The Chairman expressed some concern that, in the opinion of his Committee, the procedures that had been adopted at the review stage were inconsistent with those outlined in the official Handbook.

1. Upon receipt of the lastmentioned letter the first
   respondent again spoke with the Chairman of the Eligiblity Committee. As a result of that discussion he made the following note on Mrs Douglas' file:
   
   

"I have discussed this with Mr Virgona. I am satisfied that the Eligibility Committee dis charged its responsibilities properly in that it discussed in depth with the panel the question of professional relationships and was able to come to a conclusion. I accept the recommendation that Mrs Douglas not be granted M.T. eligibility."

1. Mr Allen said that before making the above note he
   had specifically raised with the Chairman of the Eligibility Committee the question whether the absence of a rating by that Committee on Item 3.8 of the relevant form was a factor in the Committee's decision to recommend against Master Teacher eligibility. The Chairman advised him that the matter of a rating was not significant and that the rating was based on an in depth assessment of all the areas covered in the relevant form.

2. On 27 January 1983 the first respondent wrote to
   Mrs Douglas advising her that the Review Committee had met and had not recommended that the recommendation of the Eligibility Committee be varied. He said that he had therefore accepted the recommendation that she be deemed ineligible at present to apply for classification as a Master Teacher. He attached to the letter a copy of the reasons given by the Eligibility Committee for the recommendation. Those reasons were in the following terms:
   
   

"From the evidence, the Committee assesses you as having sound teaching skills, but as requiring to place far greater emphasis on building educationally constructive professional relationships with your colleagues within the College, relationships through which one spreads one's professional influence, relationships which the Committee sees as necessary for those applicants whom it recommends for Master Teacher eligibility."

1. On 4 February 1983 Mrs Douglas wrote to the first
   respondent stating that she considered the reasons given by the Eligibility Committee and upheld by the Review Committee were not adequate. She requested a detailed explanation of the reasons for the Review Committee's recommendation and for the first respondent's decision. Her letter concluded with the observation that she was aware that she was entitled to such an explanation under s.13 of the Judicial Review Act.

2. On 7 March 1983 Mrs Douglas was furnished with a
   comprehensive statement pursuant to s.13 of the Judicial Review Act. The present application was not commenced until 28 November 1983. The reasons for the delay in bringing the proceedings appear in correspondence that passed between the solicitors for the parties and it is unnecessary to refer to its detail.

3. The first question which arises for consideration
   is whether the court should make an order extending the time within which these proceedings may be brought. Counsel for the respondents stated that they had not suffered any prejudice by the delay in bringing the proceedings and he did not oppose the grant of an extension of time. Having regard to the delay in bringing the proceedings I would not have granted an extension of time had any of the respondents been prejudiced by the delay. The absence of any such prejudice is not, of itself, sufficient to justify an extension of time. The circumstances in which an extension of time should be granted to permit the bringing of an application under the Judicial Review Act have been considered in many cases. The cases are referred to in the judgment of Neaves J. in Excell v Harris & ors. (18 October 1983) and there is no occasion to refer again to them. As is pointed out in some of the cases, it is not only the interests of the applicant and the respondent that require to be considered. In the present case, it is also necessary to have regard to the interests of other teachers who could possibly be affected by the granting of the relief sought by the applicant. During the course of argument I informed counsel for the applicant that I would not be minded to grant an extension of time to permit an attack to be made upon the validity of the procedures laid down in the Handbook, since such an attack, if successful, might unsettle other recommendations made by the Eligibility Committee. Counsel indicated that, if an extension of time were granted, the argument that the Handbook procedures were invalid would not be pressed. In these circumstances and having regard to the absence of prejudice to either the respondents or any other person, I think it is appropriate that I should make an order extending the time within which these proceedings may be brought.

4. I turn now to consider the merits of the
   application. The two substantial questions which arise for consideration are, first, whether the rules of natural justice apply to the making of any of the decisions sought to be reviewed, and second, whether, if so, a breach of those rules occurred in connection with the making of any of the decisions. It was conceded that the Director's decision not to classify Mrs Douglas as a Master Teacher was an administrative decision which was reviewable under the Judicial Review Act. The same concession was not made in respect of the decisions of the Eligibility Committee or the Review Committee. However, in the view I take of the case, it is unnecessary to give separate consideration to the question whether the Committees' decisions are reviewable under the Act. It was common ground that, for all practicable purposes, it was the Director's decision which mattered. Success in attacking the other decisions would be of no avail to Mrs Douglas if the Director's decision stands. Since the Director's decision is conceded to be reviewable, it is appropriate to consider whether an order should be made for the review of that decision.

5. It was contended on behalf of the applicant that
   she had a legitimate expectation that she would be class ified by the Director as a Master Teacher. This being the case, so it was submitted, a decision affecting that legitimate expectation was required to be made in accordance with the rules of natural justice. Heatley v Tasmanian Racing and Gaming Association 137 C.L.R. 487; F.A.I. Insurances Limited v Winneke (1982) 41 A.L.R. 1 and Ansell v Wells (1982) 43 A.L.R. 41 were relied upon.

6. It was submitted in the alternative that even if
   the applicant did not have a legitimate expectation that she would be classified as a Master Teacher she at least had a legitimate expectation that she would be interviewed personally by the Eligibility Committee which would make its own enquiries as to any opposition to her classification. Another alternative submission was that the applicant had a legitimate expectation that, should the Eligibility Committee not recommend her classification as a Master Teacher, the Director would himself independently make the enquiries which the Eligibility Committee should have made.

7. To determine whether the applicant did have a
   requisite legitimate expectation it is necessary to refer to the nature of the application which the Director declined to grant. The applicant was a Band 1 teacher in the teaching service. She did not seek a promotion. Had she done so, the provisions of the Teaching Service Act would have applied, so as to give her a right of appeal to a Promotion Appeal Board. By applying to be classified as a Master Teacher the applicant sought a recognition of her teaching expertise which, if acknowledged by the Director, would have led to an increase in her salary. It was open to any Band 1 teacher, such as the applicant, to seek Master Teacher status. However I can see nothing in the applicant's terms of employment or in any statute which could have given rise to a legitimate expectation on her part that she would be granted the status of a Master Teacher. In reality, she had, at any relevant time, no more than the opportunity to seek recognition of what she claimed to be her superior teaching talent.

8. The phrase "legitimate expectation" was first
   adopted by Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch. 149. Many of the cases in which the meaning of the phrase has been examined and its content discussed are referred to in Cole v Cunningham (1983) 49 A.L.R. 123 at p.129 et seq. There is nothing to be gained by embarking again upon a detailed analysis of the cases. The view expressed by Barwick C.J. in Salemi v Mackellar (No. 2) (1977) 137 C.L.R. 396 at 404 that the word "legitimate" in the phrase expresses a concept of "entitle ment or recognition by law" has not found favour in subsequent cases. A legitimate expectation has been equated to a reasonable expectation: see Heatley's Case (supra) at p. 508-9 per Aickin J. (with whom Stephen and Mason JJ. concurred), and Attorney-General Hong Kong v Ng Yuen Shiu (1983) 2 W.L.R. 735.

9. In Heatley's Case Aickin J. said (at p.509):
   
   

"It cannot be said that the true extent of the notion that an expectation may be the foundation of a right to compel observance of the relevant principles of natural justice has yet been fully worked out or stated with precision. In some cases a distinction has been drawn between cases concerning the original grant of a licence and those concerning the renewal of a licence already granted. For instance, in F.A.I. Insurances Limited v Winneke (1982) 56 A.L.J.R. 388 the majority held that in the circumstances of that case an insurance company which already held a licence to transact workers' compensation insurance business in Victoria was entitled to know the reasons why its licence was not to be renewed and to a fair opportunity to answer allegations of misconduct against it. The fact that it already held a licence was basic to the Court's finding. Although the company had no legal right to the renewal of its licence it was held that it had a legitimate expectation that it would be renewed."

1. It is to be observed that Aickin J. left open the
   question of the ambit of the cases in which a "legitimate expectation" may be found to exist. He said:
   
   

"The exact extent of that expression has not been determined but it certainly applies to renewal of licences to carry on a particular business where there is no statutory right of renewal."

1. He went on to point out the unfairness which could
   result to a person whose licence to carry on a business is not renewed, such a person may have built up a business and expended money on assets on the basis of an expectation of renewal of his licence.

2. In Cole v Cunningham (supra) a Full Court of this
   Court considering the circumstances in which a "legitimate expectation" could be said to arise said that "The gate (was) ajar ...". The Court embraced the view that a legitimate expectation may be found in the circumstances postulated by the Privy Council in the following passage from its decision in Attorney-General of Hong Kong v Ng Yuen Shiu (supra) at p.741:
   
   

"The expectations may be based upon some state ment or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an enquiry."

1. Notwithstanding the trend to expand the class of
   case in which the requisite "legitimate expectation" will be found to exist, I reject the argument that the circumstances of the present case gave rise to a legitimate or reasonable expectation that the applicant would be classified as a Master Teacher. Her position was little different from that of a person who applies for a position in the Public Service. In such a case, in the absence of very special facts such as were present in Cole v Cunningham, an applicant does not have any reasonable expectation that he will be appointed or afforded an opportunity of being heard before the appointment is made. The applicant was merely one of a number of persons who were in a position to seek recognition of their teaching skills. It was open to any Band 1 teacher to seek to have his or her teaching skills recognised by achieving Master Teacher status. Mrs Douglas had no greater expectation than any other Band 1 teacher of being granted such status. I do not say for one moment that she is not a very experienced and highly professional teacher. The evidence makes it clear that she is. Nevertheless neither the Director nor any person on his behalf had done anything to cause her to believe that she would be classified as a Master Teacher. There is nothing in the legislation which gives her any right to such a classification. Nor do the terms of her employment point to any such right, or even any expectation of such an appointment.

2. I turn now to consider the applicant's alternative
   arguments. I have already referred to the elaborate provision made in the Handbook for the consideration of applications for Master Teacher classification. Every Band 1 teacher knew of those provisions. It was no doubt convenient, both to the Director and to Band 1 teachers, to have the procedures codified and set out clearly in the Handbook. The use of an assessment panel to collect information for consideration by the Eligibility Committee (and by the Director, if necessary) was an integral part of those procedures. It was to be expected that the assessment panel might refer to unfavourable as well as favourable comments on any application. The procedure laid down in the Handbook for consultation between the panel and the Eligibility Committee made it plain that the Committee would rely on the panel's enquiries where it thought appropriate to do so. These procedures also made it plain that the Director might well decide to act upon the recommendation of the Eligibility Committee and, a fortiori, a recommendation of the Eligibility Committee which was confirmed by the Review Committee. In these circumstances the applicant did not have any legitimate or reasonable expectations of the kind referred to in the alternative submissions put on her behalf. I can find no basis in the Handbook or elsewhere for Mrs Douglas entertaining such expectations.

1. However, this does not mean that the applicant did
   not have a legitimate or reasonable expectation of any kind. In my opinion the issue of the Handbook to, inter alia, Band 1 teachers with the imprimatur of the Director gave rise to a reasonable expectation in the applicant that her application for Master Teacher classification would be dealt with substantially in accordance with the procedures laid down in the Handbook. That is not to say that she had a reasonable expectation that every minor detail of those procedures would be observed. But I think that she was entitled to expect that her application would be dealt with in broad conformity with the Handbook requirements. As I have sought to make plain, she was not entitled to hold an expectation that she would actually be granted Master Teacher classification. But she was entitled to hold the more limited expectation to which I have just referred. That expectation would have been fortified by the circumstance that the contents of the Handbook were apparently discussed at a meeting attended by the applicant at or about the time she made her application. The meeting was held at the Canberra College of Technical and Further Education and was attended by senior officers of the Education Department. The contents of the Handbook were discussed and it was made clear to the applicant that the Handbook requirements would need to be followed by intending applicants. It is to be remembered that although Master Teacher classification was not strictly a promotion, it did carry with it a significant monetary advantage as well as the recognition of excellence in the teaching profession.

2. It is impossible to say on the evidence in this
   case that there was any significant departure from the procedures laid down in the Handbook. Nor was there any breach of the rules of natural justice in the procedures adopted by the Eligibility Committee, the Review Committee, or the Director. The lengthy recitation I have already given of the facts demonstrates that this was so. Elaborate provision was made in the Handbook to ensure that any applicant seeking Master Teacher classification had an opportunity of having her application fairly and properly assessed. In the instant case, Mrs Douglas not only availed herself of the procedures in the Handbook but supplemented those procedures by making additional personal represent ations to the Eligibility Committee. It is true that she was not given a hearing in person. But having regard to the thorough manner in which her assessment panel presented her application to the Eligibility Committee this did not prejudice her. There is no requirement in law that observance of the rules of natural justice necessarily requires that a person be given a hearing in person. See R v Amphlett (1915) 2 K.B. 223; R v Whalley, ex parte Bordin and Co. (1972) V.R. 748 at 755-6.

3. It was unfortunate that the Review Committee
   erroneously thought that the Eligibility Committee may not have properly considered the matters referred to in paragraph 3.8 of the assessment panel's report. The oral evidence given in the case leaves me in no doubt that the absence of a formal rating on that paragraph (which seems to have been of concern to the Review Committee) in no way prejudiced the applicant.

4. Counsel for the applicant argued that it was
   incumbent upon the Eligibility Committee to make further enquiries to investigate any area of conflict between the applicant and her immediate superiors. The Committee did, in fact, hold a lengthy discussion with the members of the assessment panel whose report dispassionately discussed this matter. There is nothing in the Handbook, or in the rules of natural justice, which would have required the Committee to have taken the enquiries any further. It was not a case in which any charge of misconduct had been made against the applicant. Nor was it a case in which the applicant's superior had lodged a complaint against her. If the Committee felt it had no need of further material before making a recommendation to the Director, there was no obligation upon it to make further investigations.

5. It was not suggested in argument, nor could it have
   been, that it was a denial of natural justice for the Review Committee and the Director to take into account and have regard to the recommendation of the Eligibility Committee. In my opinion the Director acted with scrupulous fairness in considering Mrs Douglas' application. Because of the terms of the Review Committee's report to him he was at pains to satisfy himself that the Eligibility Committee had properly considered Mrs Douglas'S application.

6. In a case in which the rules of natural justice
   apply the tribunal or authority whose decision may adversely affect the legitimate or reasonable expectations of another must act with fairness, and what is fair will depend upon the circumstances of each case. See University of Ceylon v Fernando (1960) 1 W.L.R. 223, Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 C.L.R. 475 at p.504, R. v Commonwealth Conciliation and Arbitration Commission, Ex parte Angliss Group (1969) 122 C.L.R. 546 at 552.3 and Ansell v Wells (1982) 43 A.L.R. 41. I am satisfied that there was no breach of the rules of natural justice at any stage of the consideration of Mrs Douglas' application. Her application was handled with the utmost fairness by all who considered it.

7. Counsel for the respondents argued that, in any
   event the rules of natural justice did not apply to the conduct of the Eligibility Committee, the Review Committee, or the Director because such rules had been impliedly excluded by the legislature. There is, of course, no doubt that the rules of natural justice may be modified by the terms of the statute and may be, either expressly or impliedly, excluded. See Commissioner of Police v Tanos (1958) 98 C.L.R. 383 at 396 and Salemi v Mackellar (No. 2) (1977) 137 C.L.R. 396 at 401. It was submitted that the legislature had specifically identified in ss.28, 29 and 36 of the Teaching Service Act those circumstances in which a teacher had a right of appeal or a right to be heard. However, those sections, deal only with promotion. I do not think it can be implied from them that in all other circumstances other than promotions there is no right on the part of a teacher to be heard when a matter affecting her legitimate expectations is under consideration. I therefore reject the respondents' argument on this point. However, for the reasons I have given the application must be dismissed.