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
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…
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- AGLC
- Finch, Marjorie Anne v. Goldstein, Ralph & Ors [1981] FCA 150 ((1981) 55 FLR 257)
- Case
- [1981] FCA 150
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Committee was bound by natural justice rules and whether these rules were properly observed. The court had to determine if the Committee had a duty to be fair, which encompasses the right of a party to know the cases put on behalf of the other party, the right of legal representation and cross-examination, and the obligation to make full inquiries. Finch argued that the Committee's refusal to allow him legal representation, the right to cross-examine, and access to submissions by the Department, amounted to a breach of natural justice.
In ruling on the matter, the court found that the Committee had indeed breached the principles of natural justice. The court held that the Committee's refusal to permit Finch legal representation, the right to cross-examine, and access to the Department's submissions constituted a failure to act fairly. The court also noted the Committee's withholding of parts of the Department's submission from Finch as a significant procedural irregularity. Consequently, the court set aside the decision of the Promotions Appeal Committee, declared the Public Service Board's action void, and ordered the appeal to be reconsidered by a properly constituted Committee. The second respondents were directed to pay Finch's costs of the proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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