Finch v Goldstein

[1981] FCA 150

Re: MARJORIE ANNE FINCH
And: RALPH GOLDSTEIN, GERALD CARTER, PAUL REECE
And: WILLIAM COLE, J.C. TAYLOR, R.J. YOUNG (1981) 55 FLR 257
No. G23 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Administrative Law - Application for Order of review - Appeal against applicants provisional promotion to position in public service on ground of superior efficiency - Decision of Promotions Appeal Committee allowing appeal - Refusal by Committee to allow legal representation right of cross-examination and to be present when other party and witnesses being heard - Withholding from applicant parts of submission by Department - Whether Committee bound by rules of natural justice - Duty to be fair - Right of party to know cases put on behalf of other party - Right of legal representation and cross-examination - Duty of Committee to make full inquiries

Administrative Decision (Judicial Review) Act 1977 -

Public Service Act 1950 s.50 - Public Service Regulations Rr. 109F, 116

Administrative Law - Public service - Commonwealth - Appeal against applicant's provisional promotion - Promotions Appeal Committee allowed appeal - Application to court for order of review - Whether Promotions Appeal Committee bound by rules of natural justice - Whether parties entitled to legal representation before committee - Whether parties entitled to be present at hearings of committee - Whether parties entitled to cross-examine witnesses - Whether parties entitled to know case put on behalf of other party - Duty of committee to be fair and to make full inquiries - Public Service Act 1922 (Cth), s. 50 - Public Service Regulations, regs, 109F, 116.

HEADNOTE

The applicant was provisionally promoted to a Third Division position in the Commonwealth Public Service. Shortly thereafter, an appeal was lodged against the applicant's promotion and in due course the appeal was upheld by a Promotions Appeal Committee (first respondent) under the Public Service Act 1922. The applicant applied to the Federal Court of Australia under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review of that decision alleging basically that the committee had failed to observe the rules of natural justice.

Held: (1) The Promotions Appeal Committee (the committee) should apply principles of natural justice to its proceedings.

(2) Those involved in appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing to the committee.

Dixon v. Commonwealth (1981), 55 FLR 34; Hamblin v. Duffy (No. 2) (1981), 55 FLR 228; Perkins v. Cuthill, unreported (Federal Court of Australia, Keely J., 2nd July, 1981), referred to.

(3) Each party is entitled to know in substance what is being put on behalf of the other.

(4) The committee had the duty to make full inquiries into the claims of the parties and to act fairly to the parties in so doing.

(5) The committee was not bound in all cases to afford to each of the parties the right to legal representation at any hearing of an appeal, to be present when others give evidence relevant to the appeal and to cross-examine persons who give evidence.

R. v. Board of Appeal; Ex parte Kay (1916), 22 CLR 183, distinguished.

R. v. Assessment Committee of St. Mary Abbotts, Kensington, (1891) 1 QB 378, referred to.

(6) In the present case the committee did not ensure that the applicant knew what was being put on behalf of the other party and failed in its duty to act fairly to the applicant. It also failed "to make full inquiries" into the complaint of the applicant.

The decision of the committee of 18th March, 1981, allowing the appeal against the provisional promotion of the applicant should therefore be set aside.

HEARING

Sydney, 1981, July 13-15; September 14. #DATE 14:9:1981

APPLICATION.

Application to the Federal Court of Australia under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order to review a decision of the Promotions Appeal Committee upholding an appeal against a provisional promotion.

The facts of the case are fully set out in the judgment which follows.

J. A. Farmer, for the applicant.

M. H. Byers Q.C. (Solicitor-General for the Commonwealth) and P. R. Graham, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Barbouttis Roberts.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. Orders that the decision of the Promotions Appeal Committee of 18 March 1981 allowing the appeal of Anne Elizabeth Roughley against the provisional promotion of the applicant to position No. 3210 be set aside.

2. Declares that the action of the Public Service Board on 18 March 1981 cancelling the provisional promotion of the applicant to position No. 3210 and promoting Anne Elizabeth Roughley to the position was void and of no effect.

3. Directs that the appeal be dealt with by a Promotions Appeal Committee according to law.

4. Orders that the second respondents do pay the applicant's costs of these proceedings.

JUDGE1

In recent years the staff of the Australian Development Assistance Bureau (hereinafter called ADAB) an agency within the Department of Foreign Affairs were substantially reorganised. As a result some positions were abolished and new positions were created.

One of the positions created was No. 3210, a 3rd Division position in the Commonwealth Public Service.

The applicant, Marjorie Anne Finch applied for this position and ultimately, on 6 September 1979, was provisionally promoted to it. Shortly thereafter Anne Elizabeth Roughley appealed against the applicant's promotion and this appeal was subsequently upheld by the first respondents sitting as a Promotions Appeals Committee under the Public Service Act 1922 (hereinafter called "the Act").

The applicant has applied to this court under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (hereinafter called "the Review Act") for an order of review of that decision basically on the ground that the Committee failed to observe the rules of natural justice.

To understand the issues raised in this application, it is necessary to recount some of the facts in evidence before me.

The applicant was originally appointed to the Commonwealth Public Service as a typist on 7 May 1973. On 26 June 1975 she was provisionally promoted to the position of Clerk Class 2/3 and this promotion was subsequently confirmed. Later, in 1976, she was appointed to act in a class 6 position (which in part involved class 7 duties) in the 3rd Division with ADAB in Sydney. Subsequently the re-organisation of the staff of ADAB occurred and it was in the course of this that the position then occupied by the applicant and many other officers with ADAB in Sydney were abolished and a number of new positions created. This included position No. 3210 the subject of this application.

The re-organisation of ADAB involving as it did the placement of existing staff in new positions necessitated the laying down of guidelines for the purpose of that re-organisation. The document setting out those guidelines is in evidence. At the same time informal internal review machinery was established by ADAB to review the placement of officers in the newly created positions. Initially a Miss Francis Atkin was selected through that informal process for placement in position No. 3210. The applicant sought review through that informal machinery against the selection of Miss Atkin but before this review was concluded Miss Atkin was promoted to another office.

The internal committee chaired by Mr Bellew, Mr Watters, a nominee of ADAB and Mr Doyle a nominee of the Administrative and Clerical Officers Association then decided to proceed with the review sought by the applicant and treat it as a review against non-selection in position No. 3210.

That committee was not constituted under the Public Service Act and Regulations and therefore did not have power to promote the applicant to the position. It was only able to make recommendations. Because there were no other officers seeking review of the earlier selection of Miss Atkin, the committee could not assess the applicant's efficiency relevant to any other officers and accordingly considered only the question whether the applicant was competent to perform the duties of the position.

At the hearing of this matter ADAB strongly contended that the applicant was not competent to perform the duties of the position. The committee met in Sydney on 19 June 1979, 20 July 1979 and 23 July 1979. They had before them a statement prepared and submitted by ADAB detailing the reasons why "the Bureau decided not to promote Mrs Marjorie Finch" to the position. In this document the Bureau asserted that the new position was substantially different from that which the applicant had previously occupied. Whilst in that position she had become secretary of a committee known as the Sydney Committee for Overseas Students (SCOS). Many of the complaints made by the Bureau related to her attitude towards her work in relation to this committee and her conduct whilst its secretary. It stated that it was less than satisfied that she possessed an adequate understanding of the proper role of an officer representing the government in a private organisation, of the essential relationship between the Bureau and a body such as SCOS or of the nature of community involvement in official programs. It considered that her actions on a number of occasions had raised doubts as to her primary loyalties. The report also referred to:-

" . . . . . her marked tendency to work as a lone operator and to discourage consultation and co-operative team work with other officers of the Bureau and between them and SCOS.

Her lack of communication with social workers and a tendency to avoid seeking their professional advice or to encourage its availability to SCOS.

Her failure to refer cases requiring professional attention to social workers or to keep records of contacts with students having welfare problems.

The Bureau stated that it had formed the view that she was not competent to perform the duties of the position and could see no justification for promoting her to it. It mentioned the names of several officers who could be asked to give evidence in person.

After meeting on the dates mentioned and hearing evidence from some of the officers mentioned by ADAB and from several persons nominated by her the committee (which I shall refer to as "the Bellew Committee") made the following finding:-

"After consideration of all the evidence before it, and on impressions gained on two lengthy interviews with Mrs Finch, the unanimous view of the committee is that Mrs Finch is competent to perform the duties of position No. 3210 in the Sydney office of the Australian Development Assistance Bureau. Mr Watters had some reservations but as these were based largely on hearsay and therefore could not be taken into account he agreed to support the majority view."

Mr Doyle, the ACOA representative prepared a separate statement giving his reasons.

Following the report of the Bellew Committee, the Bureau agreed that Mrs Finch should be provisionally promoted to the position and this provisional promotion was notified on 6 September 1979. The position was described in the Gazette as follows:-

"Clerk $15,087 - $16,076, class 6, 3rd Division, Community Development Section, Sydney (No. 3210)"

The duties and qualifications were stated in the following terms:-

"Duties: Under direction develop contacts with community groups which have potential for assisting with overseas students services. Develop and maintain close contact with co-ordinating committee through the region and represent the Bureau on appropriate sub-committees. Stimulate community interest in Australia's overseas development training program.

Qualifications: Demonstrated aptitude for duties and relevant experience desirable."

Anne Elizabeth Roughley was appointed an officer of the Commonwealth Public Service on 20 August 1979 as a social worker, class 1, 3rd Division New South Wales with ADAB. This appointment was confirmed on 22 February 1980.

On 26 September 1979 she lodged an appeal against the provisional promotion of the applicant to position No. 3210 on the ground of her superior efficiency.

As will subsequently appear from a consideration of s.50 of the Act an appeal against a provisional promotion, where the officer promoted and the appellant both hold positions in the same State, is dealt with by a Promotions Appeal Committee having power to determine the appeal. Accordingly, after Anne Elizabeth Roughley's appeal was instituted, a Promotions Appeal Committee was established and chaired by Mr Gerald Carter. He was appointed in accordance with the Public Service Regulations by the Public Service Board. A Mr Taylor was originally nominated by the Secretary, Department of Foreign Affairs and Mr Rees by the Administrative and Clerical Officers Association. At the final hearing the Departmental representative was Mr Goldstein.

This Committee was first scheduled to commence its hearing on 7 December 1979 but this was adjourned to 14 May 1980 when the hearing was further adjourned to 22 May 1980. On the last mentioned date the hearing was adjourned indefinitely.

The matter was adjourned for the purpose of referring to the Public Service Board questions relating to the eligibility of Mrs Finch for provisional promotion and the eligibility of Mrs Roughley to appeal.

On the question of eligibility, the Public Service Board had written to Mrs Finch on 23 April 1980 and stated that it had considered her explanation about her educational qualifications and had concluded that she may be regarded as an officer of the 3rd Division.

On 5 May 1980 ADAB sent to the Promotions Appeal Committee its submission in relation to the appeal. This is a very lengthy document. It stated its views about Mrs Finch and Mrs Roughley and was strongly in favour of Mrs Roughley. In paragraph 14 it stated:-

"The Bureau's views on this officer and her performance were expressed in its report to the Bellew Committee. The Bureau believes that these views were justified and remain valid. Indeed, Mrs Finch's performance since has strengthened and confirmed our belief that she is not competent to perform the duties of this position."

Around that time a copy of part of ADAB's submission to the Committee was given to her. Broadly speaking it was that part of the submission which set out the duties, skills and personal attributes needed for the position and that part which related to "Mrs M.A. Finch". It did not, however, contain reference to a very favourable report by Ms. J. Hastings relating to Mrs Roughley nor a summary which stated:-

"The unusual circumstances surrounding this case place the Bureau in a difficult situation. While the Bureau was obliged, as explained above, to provisionally promote Mrs Finch to Position No. 3210 it has consistently maintained that she is unsuitable for the position. This view has been reinforced and confirmed by her performance in the position over nearly a year during which she was supervised by an officer who had not previously been closely associated with her and who gave her every opportunity to establish her suitability for the position. The Bureau is unable to recommend confirmation of her promotion. While the Bureau was unable to interview or even consider the appellant it is clear to us that on the evidence available, and in terms of efficiency, Ms Roughley, unlike Mrs Finch, has a substantial claim to the position."

Considerable delay then occurred apparently for the purpose of enabling advice to be obtained from the Public Service Board and from the Attorney-General's Department.

Early in 1981 Mrs Roughley lodged an appeal under reg. 116 against Mrs Finch continuing to act in the position and this appeal was heard by a Promotions Appeal Committee consisting of Messrs Carter, Goldstein and Rees on 10 February 1981. The Committee upheld Mrs Roughley's appeal and since then she has acted in that position. The file relating to this appeal was tendered in evidence.

In lodging her appeal, Mrs Roughley, pursuant to reg. 116(6) relied on superior efficiency and presumably the Committee found in her favour on this matter. At that time the Committee spoke to a Mrs Hirst, a referee nominated by Mrs Roughley. It also rang Mr Wilson, the Regional Director of ADAB in New South Wales and asked him to appear before it with the Sydney based personal files of Mrs Finch. He also appeared with the Sydney file relating to the Community Development Officer, that is, the position in question. Mr Wilson in his evidence before the Committee on this occasion drew to the Committee's attention certain memoranda which had passed between him and Mrs Finch and notes of conversations he had with Mrs Finch which in part reflected on her and were critical of her. These documents covered the period from 24 March 1980 to 21 January 1981. Mrs Finch did not appear before the Committee at the reg. 116 hearing as she took the view on advice that it was ultra vires. She was unaware of Mr Wilson giving evidence until he gave evidence before me in these proceedings nor was she aware that Ms. Hirst's reference had been relied upon in favour of Mrs Roughley until the affidavits were filed in these proceedings. Mrs Roughley's appeal against Mrs Finch's promotion finally came on for hearing before the Promotions Appeal Committee on 18 March 1981. Notwithstanding that the matter had been adjourned for ten months to enable the question of Mrs Finch's eligibility to be referred to and dealt with by the Public Service Board, the Committee decided that it would conduct its enquiries as if she held the educational qualifications required for entry to the 3rd Division. As indicated previously the Board on 23 April 1980 had already informed Mrs Finch that it had concluded that she be regarded as an officer of the 3rd Division. The Committee itself had presented to it correspondence between the Board and the Attorney-General's Department on the question as well as a letter from the Board forwarding this correspondence. The Board stated in relation to her eligibility:-

"In the Board's view the Committee should reach a conclusion on this aspect before considering the respective claims of the provisional promotee and the appellant for promotion to the position in question."

Notwithstanding this the Committee decided to make an assumption in her favour. It was however consistent, as I have indicated, with the Board's letter of 23 April 1980.

At the beginning of the hearing Mrs Finch appeared with her Barrister, Mr Farmer. The Chairman met them at the door and Mr Farmer sought to represent her before the Committee. The Chairman however indicated it wasn't the normal practice to do so and that he didn't propose to depart from it. A request was then made by Mr Farmer that Mrs Finch be allowed to sit in and hear any oral evidence which was given and to have the opportunity to either cross-examine or respond. The Chairman stated that: -

"We don't take evidence as such. That is not the normal practice and I do not propose to depart from that practice in this case. Mrs Finch will be given the opportunity to submit references and nominate referees for the consideration of the Committee in the normal manner".

Thereafter the hearing commenced and Mrs Finch was questioned in turn over a lengthy period by the members of the Committee. Mrs Roughley was then interviewed.

After this three references nominated by Mrs Finch were spoken to by telephone. Mrs Hirst, a referee nominated by Mrs Roughley had already been spoken to by the Committee in the reg. 116 hearing and the Committee did not consider it necessary to speak to her again on the same matter.

Each of the members of the Committee gave evidence on affidavit as to what occurred at the hearing. It appears from these affidavits that Mr Rees in questioning Mrs Finch asked her whether she would like to take up with the Committee any particular point in the Department's report on her or expand upon any point in her statement. According to them she replied "no" and the interview was terminated. Mrs Finch said she also added "I rely on the findings of the Bellew Committee" and that she left a copy of the findings of that Committee with them. Mr Carter in his affidavit annexed all the documents which were before the Committee and this included the report of that Committee as well as Mr Doyle's statement. These documents also included a letter dated 12 March 1981 from ADAB to the Chairman of the Committee which included the following paragraphs: -

"2. The Bureau does not intend to reiterate all the points raised in the documentation which was provided to your Committee on 5 May 1980, but confirm that the opinions stated in that correspondence remain unaltered.

3. Since then an appeal was lodged by Mrs Roughley against the temporary transfer of Mrs Finch to the subject position. This hearing was held on 12 February 1981 and the Committee upheld Mrs Roughley's appeal. Since this time Mrs Roughley has been performing the duties most satisfactorily and the Bureau has been very impressed with her performance."

In answer to the submission put in by ADAB in May 1980 Mrs Finch submitted in writing a signed statement which was also before the Committee. In it she stated inter alia: -

"It is assumed that Mrs A. Roughley is appealing pursuant to s.50(6)(a) i.e. she is of superior efficiency.

It is assumed that the only report of the Department for the purpose of the present appeal is the report for the s.50 hearing given by the Department in 1980. I have had the opportunity to read that report. There are general imputations as to my abilities and loyalties. Those matters were fully canvassed before the Bellew Committee, and I furnish this Committee with its report. This Committee may not be aware that the Bellew Committee was an independent committee chaired by Mr Tom Bellew (appointee of Public Service Board) Mr Richard Doyle (appointee of ACOA) and Mr Les. Watters (Counsellor (D.A.) in Suva, Cl.Cl.10).

I assume that this Committee will accept the findings of the Bellew Committee. I object to the imputations of the Department, particularly as they are of such a general nature. I will, of course, be willing and able, to orally refute any specific allegation. However, I would request the Committee to insist that the Department gives specific instances and show documentation to substantiate their allegations. I would like to draw the Committee's attention to the Public Service Act Regulations and Orders and in particular to the clarity of the section which makes it clear that it is the duty of the Chief Officer of a Department to bring any shortcomings to the attention of staff and where there has been misconduct to report that conduct, and in the appropriate instances to recommend that increments be deferred. If I had been allowed to perform my duty, not in accordance with policy then this would reflect more on the Chief Officer than on myself.

However, I state categorically that I have followed the policy of my employers, the Government of this country, and have fully satisfied the customers of the Public Service, viz. the public. Testimony of this can be gauged from my references and the numerous people who have written direct to the Committee. It is my belief, that as a Public Servant it is my duty to carry out my duties competently and capably following Government policy, adhering to my Duty Statement and abiding by the Public Service Act and Regulations. I have always obeyed any lawful directive of my superior officers. However, I state categorically that I will not obey a directive which is unlawful and the officer is not prepared to commit to writing. I also state that if a Member of the Government of the day, who I regard as my employer, asks me a specific question which is not a matter which the Minister has indicated should be "confidential" I will give him or her a direct and honest answer. It is my understanding that it is my strict adherence to those principles which caused the memo hereto attached to be written and which has formed the basis of subsequent criticism. I ask rhetorically whether Public Servants who express the sentiments contained in the memo attached should be given any credibility or tacit approval by this Committee.

I have had the opportunity to look at my personal file and have compared the contents with the detailed summary I made of these contents in early 1980. I state categorically that my file has been substantially "doctored". Much material has been deleted and documents have been placed on the file which are fabrications. ADAB will undoubtedly have on file my qualifications and has presented those to this Committee. I annex hereto references, all my previous Regional Directors and other employers, as well as state that members of the voluntary community committee, and student bodies would be willing to support my claims.

I intend to orally go through my previous Duty Statement for Position No. 3210 and would welcome any questions relating to my qualifications and experience. If the Committee feels that in any area the appellant may be superior to me I invite the Committee to direct my attention to that area so that I might demonstrate my capabilities in that specific area and if necessary, call appropriate referees.

I therefore ask this Committee to confirm my appointment."

In addition she submitted portion of a report dated 10 October 1978 signed by Mr Lussick, an officer of the Department. It referred to SCOS and to Mrs Finch's involvement in it. It recommended that Mr Jackson, the then Regional Director in Sydney, assume the responsibilities of Secretary of that Committee from Mrs Finch and included the following recommendation: -

"Take effective measures to ease Mrs Finch out of the driving seat e.g. loads of work with tough deadlines, status reduction (e.g. move to smaller office), etc."

After telephoning the referees the Committee apparently considered the matter. What then happened in referred to in paragraph 12 of the affidavit of Mr Goldstein. He states: -

"There was then some discussion of the contents of the statement submitted to the Committee by the Australian Development Assistance Bureau a copy of which is annexed hereto and marked with the letter "A" and of the contents of the document a copy of which is annexed hereto and marked with the letter "B". Following that discussion it was my belief, and from their comments I formed the opinion that the other Committee members agreed, that the contents of annexure "B" justified some caution in considering the Australian Development Assistance Bureau's opinion of Mrs Finch. I considered, and from their comments I formed the opinion that the other Committee members shared my view, that the criticisms of Mrs Finch contained in annexure "A" were general rather than specific in nature and should not be accepted as objectively established, but that as Mrs Finch had not attempted to refute any of the observations contained in the statement, neither should it be assumed that none of the criticisms made were warranted. My general conclusion about the statement, which from their comments I formed the opinion was shared by the other Committee members, was that Mrs Finch's superiors were dissatisfied with her performance, but that greater weight in assessing the relative efficiency of the parties should be given to what was established at interview and to referees than to the impressions derived from the Australian Development Assistance Bureau's statement."

After this the Committee unanimously agreed to allow Mrs Roughley's appeal. The determination of the Committee is in evidence. It is dated 18 March 1981 and is shown as unanimous.

The decision of the Board on the matter is also in evidence. It cancels the provisional promotion and promotes Mrs Roughley to the vacant office. It is signed by Mr Carter as a delegate of the Board.

Mrs Finch gave evidence that she had thought the Departmental files relating to her would be before the Committee. She said she gained this impression from Mr Wilson, the Regional Director, who told her she could look at it on its way through to the Appeals Committee. Mr Wilson denied this. It does appear however that the files were brought down for her inspection shortly before the hearing. It is also clear that the Sydney files were before the Committee at the hearing of the reg. 116 appeal. Clearly enough the Committee kept in mind the evidence which had been given to it before that Committee because they did not trouble to telephone Ms. Hirst, a referee for Mrs Roughley. Although they do not specifically say so, I can only assume that they also kept in mind the evidence Mr Wilson gave before them and the documents he had produced. It is difficult to come to a positive finding on this matter but I am satisfied that Mrs Finch had the impression, though mistakenly, that her files would be before the Committee on 18 March.

These proceedings are now brought to set aside the decision of the Committee broadly on the ground that there was a denial of natural justice.

PUBLIC SERVICE ACT

Most of the relevant provisions of the Act are contained in s.50 thereof.

Where a vacancy exists in an office in any Division other than the First Division, the Permanent Head may, subject to the Act, transfer or promote an officer to fill the vacancy (sub-s.(1)). In the selection of an officer for promotion, consideration should be given first to the relative efficiency and, in the event of an equality of efficiency of 2 or more officers, then to the relative seniority of the officers available for promotion (sub-s.(3)).

For the purposes of this appeal, in s.50, "efficiency" means special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct (sub-s.(4)).

Any promotion is to be provisional and without increased salary pending confirmation and is subject to the right of appeal as provided in the section. As to appeal sub-s.(6) provides:-

"(6) An appeal under this section shall be made in such manner and within such time as is prescribed, and may, subject to sub-section (6A) be made by any officer who considers that he is more entitled to promotion to the vacant office than the officer provisionally promoted, on the ground of -

(a) superior efficiency; or

(b) equal efficiency, and seniority."

Sub-section (6A) is not directly relevant for present purposes.

Section 50 also provides for the constitution of such Promotions Appeal Committees for each State as are required and such Central Promotions Appeal Committees as are required (sub-s.(5A)). For the purpose of the determination of an appeal, a decision of a majority of the members of a Promotions Appeal Committee shall be deemed to be the determination of the Committee (sub-s.(5AA)).

Sub-ss.(8), (8A), (8B) and (9) are directly relevant to this matter and provide:-

"(8) Where an appeal has, or appeals have, been duly made in respect of a provisional promotion -

(a) the person with whom, under the regulations, any such appeal has been lodged shall forward notice of the appeal, and any document by which the appeal was instituted and any other document received by him in connexion with the appeal; and

(b) the Board shall cause to be forwarded full particulars of any such appeal that is an appeal regarded by the Board under sub-section (7A) as having been made,

to a Promotions Appeal Committee that is appropriate in relation to the appeal having regard to the succeeding provisions of this section.

(8A) Where, in relation to a provisional promotion, all the parties to the appeal proceedings perform their duties in the 1 State, a Promotions Appeal Committee for that State shall make full inquiries into the claims of those parties and shall -

(a) except where paragraph (b) applies - determine the appeal or appeals; or

(b) where the vacant office is one in respect of which the rate of salary, or the maximum rate of salary, exceeds such rate as is prescribed for the purposes of this sub-section - make a report to the Board on the claims of those parties.

(8B) Upon receipt of a report in accordance with paragraph (8A)(b), the Board shall determine the appeal or appeals.

(9) Where an appeal is allowed in pursuance of this section, the Board shall cancel the provisional promotion and promote the appellant to the vacant office."

Sub-section (8A) provides for a situation where all the parties to the appeal proceedings perform their duties in the one State as is the case here. Where the parties do not all perform their duties in the one State, provision is made for a Promotions Appeal Committee for the State in which a party performed his duties or two or more parties performed their duties to make full inquiries into and make a report to the Board on the claims of that party or those parties (sub-s.(8C)). Upon receipt of all the reports the Board is to refer them to a Central Promotions Appeal Committee which is required to examine them. It may make such further inquiries, if any, as it thinks necessary into the claims of the parties to the appeal proceedings and shall -

(i) where the office concerned is an office referred to in paragraph (8A) (b) make a report to the Board on the claims of all the parties to the appeal proceedings; or

(ii) in any other case - determine the appeal or appeals.

Upon receipt of a report under (i) the Board is to determine the appeal or appeals (sub-s.(8E)). For the purposes of this section, the parties to the appeal proceedings are the officer provisionally promoted and the appellant or appellants.

Section 97(1)(h) of the Act empowers the Board to make regulations for regulating the procedure (inter alia) of the Promotions Appeal Committee. Purporting to act pursuant to this power, the Board has made reg. 109F which states:-

"109F. It shall be the duty of a Promotions Appeal Committee or a Central Promotions Appeal Committee to make its inquiries without regard to legal forms or solemnity."

Provision is also made in these regulations for the constitution of Promotions Appeal Committees (reg. 109D) and for appeals against provisional promotions (reg. 109).

It will be seen from this analysis of the Act that the Promotions Appeal Committee's role in an appeal against a provisional promotion varies depending on a number of factors including whether the appellant or appellants and the officer provisionally promoted perform their duties in the same or different States. Where, as here, the officer and the appellant perform their duties in the same State and sub-s.8A(b) does not apply, the Committee's function is to make full inquiries into the claims of the parties and to determine the appeal. The issue in the appeal is well defined - whether Mrs Roughley is more entitled to promotion to the office than Mrs Finch on the ground of superior efficiency. By virtue of sub-s.(15) the parties to the appeal proceedings are also well defined - they are the officer provisionally promoted and the appellant i.e. Mrs Finch and Mrs Roughley. If the Committee determines the appeal by allowing it, the Public Service Board must cancel the provisional promotion and promote the appellant to the vacant office.

THE APPLICANT'S RIGHTS AT THE HEARING

In these circumstances Counsel for the applicant submits that a party to an appeal is at least entitled to legal representation at any hearing of an appeal, to be present when others give evidence relevant to the appeal and to cross-examine persons who give evidence.

The Solicitor-General for the Commonwealth, who appeared for the Attorney-General intervening under s.18 of the Review Act, conceded that a Promotions Appeal Committee was under a duty to be fair to a party to an appeal but submitted that a party had none of the rights contended for by the applicant. An Appeals Committee, he submitted, was not bound by any specific procedural rules in order to satisfy its duty to be fair except perhaps to afford a party an opportunity to state his or her case. He pointed to the fact that, under the Act, a Promotions Appeal Committee, in some instances, had only a reporting function sometimes to the Board, at other times through the Board to a Central Promotions Appeal Committee. Its duty in every case was to make full inquiries into the claims of the parties and to be fair but, he submitted, the Act could not work if strict curial type procedures had to be followed.

It is clear that the question whether the rules of natural justice apply to the proceedings of a statutory tribunal and what those rules require is a matter of statutory construction. (See Salemi v. MacKellar (1977) 137 C.L.R. 396 at p. 419; Q. v. MacKellar; Ex p. Ratu (1977) 137 C.L.R. 461 at pp. 475-6; Durayappah v. Fernando (1967) 2 A.C. 337 at p. 349).

I do not think there can be any doubt that Parliament intended that under the Public Service Act, principles of natural justice should apply to the proceedings of Promotions Appeal Committees. Stated broadly this means that the Committees have a duty to be fair to those interested in the proceedings before them. But the problem in this, as in most such cases, is to give content to that duty. In Mobil Oil Australia Pty. Limited v. Federal Commissioner of Taxation ((1963) 113 C.L.R. 475 p. 504) Kitto J. said:-

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances".

Because the decisions of Promotions Appeal Committees under the Act affect the promotion and advancement of individual public servants in the Public Service, I think the proper protection of their rights at least demands that those involved in appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing to the Committee dealing with the matter. (cf. Dixon v. The Commonwealth - 18 June 1981 - Bowen C.J. Deane and Kelly J.J. (unreported); Hamblin v. Duffy - 31 July 1981 - Lockhart J. (unreported); Perkins v. Cuthill - 2 July 1981 - Keely J. (unreported)).

The more difficult question is whether the Committee is bound, as a general rule, to go further and give to each party such rights as the right to have legal representation, to examine witnesses in chief, to be present when other evidence is given and to cross-examine adverse witnesses.

As I have said, this is basically a matter of statutory interpretation but the statute has to be construed in the context of the circumstances in which it is intended to operate.

Under the Act an appeal against a provisional promotion gives rise to what are referred to as "appeal proceedings". These proceedings have "parties" to them who are the officer provisionally promoted and the appellant or appellants. The issues in an appeal under the Act are clearly defined. They are either the superior efficiency of the appellant over the officer promoted or the equal efficiency of the appellant and seniority. The notice of appeal and any documents lodged in connection with the appeal are to be sent to the Promotions Appeal Committee. It is then charged with the responsibility, in a case such as this where both parties perform their duties in one State, of making "full inquiries" into the claims of those parties and of determining the appeal. Its decision is not subject to appeal for the Board is bound to promote the appellant or confirm the provisional promotion depending on whether the appeal is allowed or dismissed by the Committee.

All these factors lend some support to the view that what is intended is a formal hearing at which the parties adduce evidence and put their respective cases and after which the Committee makes up its mind on the evidence whether the grounds of the appeal have been made out. The issues are basically issues of fact, the meaning of "efficiency" is defined in the Act, there are no questions of government policy involved in the actual decision and the members of the Committee are chosen having regard to their knowledge of the public service and of the interests of public servants. The decision is of great significance to the individuals involved. If this were the intention of the legislature it would not be difficult to go further and say that each of the parties should have the rights contended for by the applicant in this case.

The factors which tend against this view are that no procedure for a hearing is laid down in the statute, but left to be determined by regulation (s.97(1)(h). The Committees are not given power to summon witnesses and take evidence on oath as is conferred on the Board and Disciplinary Appeal Boards in other circumstances (ss.19(1)(b) and 63E(ii)). Their decisions in many cases are not final (e.g. where the parties perform their duties in two or more States and the Committee has a reporting function only) and the appeal provisions in question apply to all promotions appeals under s.50 of the Act and have to be adapted therefore to a multiplicity of circumstances requiring flexibility of procedure.

In my opinion the correct view of the Act is that Promotions Appeal Committees are not bound in all cases to afford to each of the parties the rights contended for by the applicant in this case. If Parliament had intended that the proceedings of these committees should be formalised in this way it would have made that intention clear. Instead, it has left their procedures to be prescribed by regulation and has not even conferred power to summon witnesses or to take evidence on oath. This may have been an oversight but I do not think it was.

The applicant in support of its contentions relied strongly on the decision in R v. The Board of Appeal Ex. p. Kay ((1916) 22 C.L.R. 183) in which it was held that an officer of the Commonwealth Public Service, on the hearing of an appeal to a Board under s.50 of the Commonwealth Public Service Act 1902, was entitled to be represented by counsel. The Court said, in effect, that at common law a person having a right to appear before a non-judicial tribunal was entitled to do so by an agent and that this rule had not been excluded by the section in question. The appellant was therefore entitled to be represented by counsel (see too R. v. Assessment Committee of St Mary Abbotts, Kensington (1891) 1 Q.B. 378).

In that case the Court, in my view, placed particular reliance on the fact that under the section, the Board was directed to hear the appeal and transmit the evidence taken with its recommendation to the then Public Service Commissioner. Under s.50 of the present Act, I do not think the Act contemplates or requires a formal hearing. Section 50 (8A) provides that the Committee "shall make full inquiries" into the claims of the parties. This does not seem to me to require a formal hearing in every case and therefore Kay's Case does not assist the applicant. Nor, in my view, if a Committee meets to hear the parties and their witnesses, is it bound to grant legal representation provided in refusing to do so in the particular case, it is acting fairly to the party concerned. Under reg. 109F it is required to make its inquiries "without regard to legal forms or solemnities". Although this does not mean it can ignore its overiding duty to act fairly (if it did it would be invalid), it clearly places no duty on a Committee to afford legal representation at meetings of the Committee where the party is being heard.

On the approach to the Act which I have adopted a Promotions Appeal Committee in a case such as this has two basic duties - to make full inquiries into the claims of the parties and to act fairly to the parties in so doing. It could be said that, in a sense, it has only one duty, namely, to make full inquiries and that its duty to act fairly is implicit in fulfilling that duty because it cannot make full inquiries into the claims of the parties unless it acts fairly.

In carrying out its duty to act fairly the Committee, as I have already indicated, at least has a duty to ensure that each party knows the case put against him or her and an opportunity to put his or her case to the Committee. There is however another question, namely, whether a party is, in addition, entitled to know in substance the case being put by or on behalf of the other.

The answer to this question, to some extent, depends on the nature of the appeal proceedings.

The respondents sought to gain some assistance by describing them as "inquisitorial" and not "curial" in nature. It was submitted that the Committee fulfilled its duty if it heard each party separately and that the rights of the parties are to put their own claims to promotion and not to derogate from the claims to promotion of other officers. In this way, it was said, adversary claims were excluded from the appeal proceedings.

I do not think that this is a correct or even helpful distinction to draw. These are what are termed "appeal proceedings". The Act contemplates "parties" to them and "claims by parties" and the issues relate to the comparative efficiency of the parties. The claims of the parties are therefore competing claims. In this sense they are "adversary" even though, as I have held, there is no general duty on a Committee to hold a formal hearing at which the parties are entitled, as of course, to appear by counsel or to other rights common to court proceedings.

The duty of the Committee is to make full inquiries into the claims of the parties. In a case such as this, the issue is whether one party (the appellant) is of superior efficiency to the other (the officer promoted) and this will inevitably involve weighing one person's efficiency against that of the other. Each is, in my view, entitled to an opportunity to make his or her case on this issue. In order to do so, I think it is fundamental that each be entitled to know in substance what is being put on behalf of the other, for without such knowledge, how could a party adequately put a case that he or she is superior in efficiency to the other. Where as here superior efficiency is the issue the alleged efficiency of one is in a real sense part of what is put against the other.

No procedures appear to have been adopted in the present case to inform either party of what was being put on behalf of the other. The ADAB submission was not fully disclosed to either but if it was to be treated, as it apparently was, as part of what was before the Committee for the purpose of making its decision, I think it should have been fully available to both parties. It was highly critical of Mrs Finch and strongly in favour of Mrs Roughley. For example, the favourable assessment in it of Mrs Roughley depended in part on views expressed by a Mrs. Hastings who, according to evidence from a previous N.S.W. Regional Director, Mr Smith, was very prejudiced against Mrs Finch. In my view Mrs Finch should have been entitled, if she wished, to put evidence challenging this assessment of Mrs Roughley's efficiency. On the other hand, Mrs Roughley should have been entitled, if she wished, to substantiate the departmental claims against Mrs Finch. Neither had the opportunity to do so.

It might be suggested that to disclose the portion on Mrs Finch to Mrs Roughley would be defamatory. But this is not a reason for not disclosing it. It is a reason why a department should not make broad allegations against an officer unless it is prepared and is expected to sustain them when the appeal is heard.

It might also be suggested that this approach could lead to great complexity where there were many appellants performing duties in several States and that contrary to past practice it would mean that each party would be entitled to be present, if a hearing were held, when the other or others and their witnesses were being questioned. I do not think these results necessarily follow. It may be possible to devise procedures which ensure that each knows in substance the case being put on behalf of other parties and thereby reduce the complexity and also remove the need for each to have the right to be present.

If procedures are not adopted or are not practicable to satisfy this requirement, it probably will mean that each party should be entitled to be present if he or she wishes when others are being questioned or when the other's referees are being spoken to. This may be inconvenient and contrary to past practice but having regard to the fact that the proceedings involve competing parties it should be seen as a natural consequence of that fact.

It must be remembered that the Committee is not an interviewing committee conducting interviews among competing applicants to select the one whom it considers to be the best person to fill a vacancy or a newly created position. It is an appeal committee. In a case such as this, it is adjudicating between the claims of one officer, who has already been provisionally promoted, and another, who claims to be superior in efficiency. The officers are in contest and their respective futures in the public service may well depend on the outcome. In the ordinary case, the officer appealed against will have the comfort of knowing that the permanent head supports his or her promotion. The very nature of the matter before a committee and its function therefore, in my view, makes it essential that each party know what is being put to the committee in favour of another on the issue before the committee as well as that which is against himself or herself.

In the appeal, the subject of these proceedings, the applicant was provisionally promoted by her permanent head. The branch in which she worked (ADAB) had previously submitted to the Bellew Committee that she was not competent to hold the position but the committee in July 1979 disagreed and found she was. Following an indication from the Public Service Board she was provisionally promoted to the position on 6 September 1979. Notwithstanding this ADAB continued to claim she was not competent and on 5 May 1980 sent a written submission to the Committee setting out (inter alia) the demerits of Mrs Finch and the merits of Mrs Roughley. It is common ground that each was only given that part which ADAB thought related to her. Neither of them was given the summary. On 12 March 1981 ADAB again wrote to the Committee and confirmed its opinion in the letter of 5 May 1980. It also commented favourably on Mrs Roughley's performance in the position since 12 February 1981 when her reg. 116 appeal was upheld. Mrs Finch did not receive a copy of this letter.

In this case the Committee did not ensure that Mrs Finch knew what was being put on behalf of Mrs Roughley. It failed to ensure that the applicant had full copies of both letters from ADAB and it refused to allow her to be present when Mrs Roughley was being questioned. It also failed to inform her that it proposed to take into account the views of Mrs Hirst to whom it had spoken as a referee for Mrs Roughley during the reg. 116 appeal. In all these respects it erred in its duty to be fair.

Quite apart from this and even if I were wrong in this view, I think Mrs Finch was entitled to have a copy of the summary portion of the ADAB letter of 5 May 1980 and paragraphs 2 and 3 of the ADAB letter of 12 March 1981. These contained material prejudicial to Mrs Finch and in some respects different in substance to that contained in the portion of the letter of 5 May 1980 which was in fact given to her. In not ensuring that she had this material, I think the Committee erred in its duty to be fair. It was clearly part of what was put against her and she was entitled to know about it.

For these reasons alone I am of the opinion that the Committee failed in its duty to act fairly to the applicant and that its decision should be set aside. This means that the appeal should be resubmitted to a Promotions Appeal Committee. In the ordinary case it could go back to a committee composed of the same people. However, in this case a question could arise as to whether it should. The same people composed the Committee who heard the actual appeal and the reg. 116 appeal. The issue before them in the reg. 116 appeal was very similar, namely, the superior efficiency of Mrs Roughley to act in the position pending it being filled. A question does arise as to whether having determined that issue in Mrs Roughley's favour it should have dealt with the appeal itself. This matter was not argued at the hearing and I am therefore loath to express a view about it. It is sufficient to observe that if this appeal is to go back to a committee it may save subsequent debate if it is differently composed.

Apart from this general duty to inform parties in the way I have indicated and to give each party an opportunity to put its case, I think that a Promotions Appeal Committee must, in the absence of procedural directions in the Act or regulations, mould its procedure to each particular case.

This does not mean, however, that in no case should it allow legal representation or cross-examination of witnesses and the like. Nor does it mean that, in no case, will it be under a duty to do so.

It seems to be implicit in what Kitto J. said in the Mobil Oil Case (supra) and in similar statements by Judges in other cases that the duty to act fairly in exercising a particular statutory power may require different procedures depending on the circumstances in which that power is being exercised. In Salemi's Case (supra at p.444) Stephen J. recognises this in the following passage. His Honour was not part of the statutory majority, but with respect, I think he correctly states the law: -

"It is, no doubt, now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J. describes, in Mobil Oil Australia Pty. Limited v. Federal Commissioner of Taxation ((1963) 113 C.L.R. 475, at p.504) as 'the particular statutory framework' within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwin per Lord Reid ((1964) A.C. at pp.65, 72), they may also vary from case to case although each be conducted before one and the same tribunal or person. Kitto J. gave recognition to this fact in the course of his reasoning in the Mobil Oil Case ((1963) 113 C.L.R. at p.504)."

I think it follows from this that, even though there is no general rule that a party is entitled to cross-examine witnesses before a committee, it may well be that, in a particular case, it is the only way in which the committee can make full inquiries into the claims of the parties. For instance, if it is alleged that a person has been guilty of serious bad conduct the only way of getting at the truth may be by the examination and cross-examination by counsel of witnesses. In this case some serious relevant allegations have been made against Mrs Finch. I am not prepared to hold that this is a case where the examination and cross-examination of witnesses is necessary in order to make full inquiries and to be fair to the parties. However, a committee determining this appeal, having acquainted themselves with the issues and allegations, should consider whether this is a special case where legal representation and the questioning of witnesses should be allowed. It is a matter for the Committee to so decide and a court would not interfere unless it felt that it was one of those, perhaps rare, cases where the Committee could only fulfil its duty by so deciding. The Committee however should not act in the belief that, because of past practice, in no case is it able to permit legal representation or the examination or cross-examination of witnesses.

Another matter which was canvassed at the hearing was whether the Committee had, in this case, fulfilled its duty to make full inquiries. On the evidence before me it appears to have taken the view that, because Mrs Finch had not attempted to refute any of the criticisms contained in ADAB's submission, it should not assume that none of them was warranted and was entitled to give some, though not greater weight, to them as opposed to what was established at the interview. By this means the Committee seems to have absolved itself from the need to inquire further into the truth or otherwise of those allegations. However these allegations went to the very heart of Mrs Finch's efficiency for the position. If they were true she clearly should not have been promoted to it. Furthermore they were allegations, not identical, but similar in character to those which had been made to the Bellew Committee who, after three days hearing in 1979, had found in Mrs Finch's favour. At the hearing before the Promotions Appeal Committee, Mrs Finch naturally relied on the Committee's finding as to her competence and objected to the general imputations in ADAB's letter of 5 May 1980. She requested the Committee to insist that the Department give specific instances and show documentation to substantiate their allegations. There were other relevant considerations. Mrs Finch had been promoted in September 1979 on the basis of the Bellew Committee report. As I read the Act that is the relevant date on which to consider the relative efficiency of the parties in an appeal. Evidence of subsequent conduct may have been relevant but the important fact was she had been promoted by her permanent head on the basis of the report yet ADAB persisted in its claim that she was not competent to hold the position. Furthermore, there was some evidence of malice towards Mrs Finch by other officers of the Department in a memorandum by Mr Lussick to the Regional Director Mr Jackson.

This is probably a very special case. One hopes it is. For an officer to be promoted when it is believed by her department that she is not competent to hold the position is, to say the least, extraordinary. However, it happened and the Committee in my view in the very special circumstances of this case had a duty to inquire much more fully than it did into the allegations by ADAB. Confronted with the Bellew report it had no option but to ascertain whether ADAB's allegations were reliable particularly as they were not prepared to give them no weight whatsoever. The allegations went to Mrs Finch's special qualifications, aptitude, merit, diligence and good conduct and these were directly relevant to her "efficiency" to fill the position as defined in the Act. Had they found that they were unwarranted or trivial or not established this may well have affected their judgment of the applicant. To undertake such inquiries might mean delay, inconvenience and even embarrassment to members of the Committee in having to decide on the credibility of fellow officers. It may have made no difference to their ultimate decision. But it is an inquiry, in my view, which, in the special circumstances of this case, they were bound to undertake. In not doing so they failed to fulfil their duty "to make full inquiries" into the complaint of Mrs Finch. If the parties are not allowed to have legal representation or to be present when others are called and there is no power to summon witnesses, the need for the Committee to inquire itself into relevant matters only becomes greater. It does not mean they must examine every detail but it does mean that in each case they should take sufficient steps to inquire so that what they undertake can reasonably be described as "full inquiries" into the claims of the parties. Here, what they did, in my view, Mrs Finch having claimed that ADAB's allegations were without foundation, clearly fell short of such a test.

Where a tribunal has a duty to inquire the courts will review its conduct in order to determine whether that duty has been fulfilled. For instance where a tribunal had an obligation to make "due inquiry" the courts have considered whether or not it should have admitted certain evidence. (Fox v. General Medical Council (1960) 3 All E.R. 225 at 227; General Medical Council v. Spackman (1943) A.C. 627; Sloan v. General Medical Council (1970) 2 All E.R. 686). In my view these cases lend support to the approach I have adopted here.

For all the reasons I have given, it is my view that this application should be allowed.

I make the following orders and declarations: -

1. I order that the decision of the Promotions Appeal Committee of 18 March 1981 allowing the appeal of Anne Elizabeth Roughley against the provisional promotion of the applicant to position No. 3210 be set aside.

2. I declare that the action of the Public Service Board on 18 March 1981 cancelling the provisional promotion of the applicant to position No. 3210 and promoting Anne Elizabeth Roughley to the position was void and of no effect.

3. I direct that the appeal be dealt with by a Promotions Appeal Committee according to law.

4. I order the second respondents to pay the applicant's costs of these proceedings.