Galofaro v Metropolitan Fire and Emergency Services Appeals Commission
[2005] VSC 356
•9 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6247 of 2005
| SAL GALOFARO | Applicant |
| And | |
| METROPOLITAN FIRE AND EMERGENCY SERVICES APPEALS COMMISSION | First Respondent |
| And | |
| GEOFFREY GIBSON, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD | Second Respondent |
| And | |
| METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD | Third Respondent |
| And | |
| THE CHARGING OFFICER, COMMANDER TERRENCE KIMPTON | Fourth Respondent |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2005 | |
DATE OF JUDGMENT: | 9 September 2005 | |
CASE MAY BE CITED AS: | Galofaro v Metropolitan Fire and Emergency Services Appeals Commission | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 356 | |
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Administrative Law – Jurisdictional error - Right of appeal “by way of re-hearing” under Act – Whether Act provided for appeal to be heard and determined by way of re-hearing de novo – Whether failure to hear and determine appeal by way of re-hearing de novo constituted jurisdictional error – Relief in the nature of certiorari – Whether relief should be denied as a matter of discretion – Metropolitan Fire Brigades Act 1958 (Vic) ss. 79A, 79H, 79I, 79J, 79K, 79L, 79M, 79O, 79P, 79Q, 79R – Metropolitan Fire Brigades (General) Regulations 1994 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H Borenstein SC and Ms R J Orr | Slater & Gordon |
| For the First and Second Respondents | No appearance | |
| For the Third and Fourth Respondents | Mr J Bourke | Maddocks |
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HIS HONOUR:
Introduction
The applicant Sal Galofaro was until 17 February 2005 an employee of the third respondent, the Metropolitan Fire and Emergency Services Board (“the Board”). As a result of charges laid against him by the fourth respondent (“the charging officer”) a hearing was held before the second respondent Mr Gibson as delegate of the Chief Executive Officer of the Board (“the delegate”). On 17 February 2005, the delegate found the applicant guilty of the charges and dismissed him as an employee of the Board. Following his dismissal, the applicant appealed to the first respondent, the Metropolitan Fire and Emergency Services Appeals Commission (“the Commission”), against the decision of the delegate to find him guilty of the charges and to dismiss him. On 26 April 2005, a member of the Commission dismissed the appeal of the applicant (“the decision”).
On 6 June 2005 a Master of this Court granted the applicant an order for review of the decision under the provisions of the Administrative Law Act 1978 (Vic).
In this proceeding, the applicant seeks an order in the nature of certiorari quashing the decision to dismiss his appeal from the decision of the delegate to find him guilty of the charges against him and to dismiss him. If an order in the nature of certiorari is granted, an order is sought remitting the appeal to the Commission to be determined in accordance with law.
In summary, the issues in the proceeding arise in the following way:
(1)The appeal by the applicant against his dismissal by the delegate was heard and determined by the Commission as an appeal in the strict sense, requiring the identification of error on the part of the delegate. On behalf of the applicant, it is contended that this was a jurisdictional error by the Commission, because the Commission was, on a proper construction of the relevant statute, obliged to conduct the appeal as a re-hearing de novo.
(2)If the Commission was correct in hearing and determining the applicant’s appeal from the delegate as an appeal in the strict sense, requiring identification of error on the part of the delegate, the applicant contends that the Commission nevertheless fell into jurisdictional error.
The legislative scheme
The Board is established under s. 6 of the Metropolitan Fire Brigades Act 1958 (Vic) (“the Act”).
Pursuant to s. 25B of the Act, the Board is authorised to employ staff to assist it in carrying out its functions under the Act. By s. 25B(1)(b), the Board is granted the power to transfer, promote, suspend or remove any employee.
By s. 28 of the Act, the Board is obliged to appoint a Chief Executive Officer of the Board.
By s. 30 of the Act, the Chief Executive Officer may delegate to any person, or to the holder of any office or position approved by the Board any responsibility, power, authority, duty or function conferred on the Chief Executive Officer under the Act or the Regulations made pursuant to the Act. There is no limitation upon this power of delegation. In particular, any person delegated is not required to hold any qualifications or other attributes of any kind or to be independent of the Chief Executive Officer or the Board.
The Act provides a regime for the laying of charges against “operational staff”, the hearing by the Chief Executive Officer or delegate of such charges and, if the charges are found proven, the imposition of penalties by the Chief Executive Officer or delegate. Those penalties include dismissal of the operational staff member from employment by the Board.
Section 78A of the Act specifies the offences which may lead to a charge. Section 78A provides:
“78A. Offences by officers or members
A member of the operational staff who is—
(a)guilty of any breach of the regulations;
(b)guilty of any misconduct;
(c)negligent or careless in the discharge of his duties;
(d)inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or
(e)guilty of any disgraceful or improper
conduct—
shall be guilty of an offence.”
Section 78B empowers a member of “the senior operational staff”, after an investigation, to lay a charge for an offence under s. 78A.
Pursuant to reg. 27(1) of the Metropolitan Fire Brigades (General) Regulations 1994 (Vic) (“the Regulations”), an operational staff member charged with an offence under s. 78A of the Act must be given written notice of particulars of the charge and of the time and place of the hearing of the charge.
Section 78C provides for the hearing of a charge for an offence under s. 78A by the Chief Executive Officer or delegate. Section 78C provides:
“78C. Hearing of charges
(1)The Chief Executive Officer must hear a charge laid under section 78B.
(2)A member of the operational staff and any other party to the hearing is entitled to be represented at the hearing of the charge by a legal practitioner or other person.
(3)The representative of a party may examine witnesses and address the Chief Executive Officer on behalf of the party.
(4)If the member of the operational staff does not attend in person or by a representative at the time and place fixed for the hearing, the Chief Executive Officer may proceed in his or her absence.”
Section 78D of the Act provides for the penalties to be imposed by the Chief Executive Officer or delegate if the operational staff member is found guilty of the offence charged. The penalties specified may be one or more of a reprimand, a demotion, a fine, a suspension or dismissal.
Regulation 27(2) of the Regulations obliges the Chief Executive Officer to give written notice of the decision made at the hearing of the charge to the operational staff member concerned.
Apart from the provisions set out above, the Act and Regulations do not make express provision for the mode of hearing to be conducted, as to the procedures to be followed or as to the powers exercisable by the Chief Executive Officer or delegate on the hearing of a disciplinary charge under s. 78B of the Act.
The Act provides for a right of appeal by an operational staff member to the Commission. The Commission is established under s. 79 of the Act. Under s. 79A, its function is to hear and determine any appeal made to it under the Act.
Section 79H of the Act provides for the circumstances in which an operational staff member may appeal to the Commission. Section 79H provides:
“79H. Rights of appeal
A member of the operational staff may appeal to the Commission against—
(a)a decision of the Chief Executive Officer under section 78D in relation to the member;
(b)an order of transfer of the member, other than an order of transfer for a period not exceeding 8 weeks;
(c)the failure of the Board to select the member (not being a member of the senior operational staff) for promotion to a vacant position for which he or she has applied.”
In respect of the appeals referred to in s. 79H(a) and 79H(c), s. 79I provides:
“An appeal to the Commission under s. 79H(a) or (c) is to be by way of re-hearing.” (Emphasis added.)
Accordingly, it can be seen that the Act provides that each of the kinds of specified appeal is to be by way of “re-hearing”. The right of appeal under s. 79H(a) is a right to appeal against a decision of the Chief Executive Officer or a delegate against a finding of guilt and/or penalty imposed in respect of a charge laid under s. 78B. This is the kind of appeal which the applicant made in this case. I will refer to these appeals as “disciplinary appeals”. An appeal under s. 79H(c) is an appeal against the failure of the Board to select an operational staff member for promotion to a vacant position for which he or she has applied. I will refer to these kind of appeals as “promotion appeals”.
Regulation 29(1) of the Regulations provides for the giving of a notice of appeal within 14 days of notification of the matter appealed against. Regulation 29(2) provides that the Commission may extend this time. Regulation 29(3) provides that a notice of appeal may be in the form of an ordinary letter.
Regulation 29(4) is significant. It provides:
“(4) The notice must –
(a)clearly state the grounds of the appeal; and
(b)give full particulars of every ground on which the appellant relies.”
Regulation 29(5) is also significant. It provides:
“(5) Copies of –
(a)correspondence or other documents (if any); and
(b)statements of fact –
relating to the subject matter of the appeal must be attached to the notice of appeal.”
I will return to the significance of regs. 29(4) and 29(5) later in these reasons.
Further to reg. 29, the Act itself contains provisions as to the mode of hearing and procedural requirements, powers and protections applicable to both disciplinary appeals and promotion appeals.
Section 79J of the Act provides that an appeal is to be heard by either the Full Commission or a Commissioner sitting alone.
Pursuant to s. 79K of the Act, the Commission may in each appeal be assisted by a person nominated by the Board or the Chief Executive Officer and a person nominated by the appellant. Each nominee is entitled to be present during the whole of the appeal proceedings and must advise the Commission on any matter which it seeks to be advised. However, the nominees must not adjudicate on the subject matter of the appeal.
Section 79L of the Act provides for the procedure to be adopted on the hearing of an appeal. Section 79L provides:
“79L. Procedure on appeal
(1)A member of the operational staff who has appealed to the Commission or any other party to the appeal may appear at the appeal or may be represented at the appeal by any person including a legal practitioner.
(2)If a member who is the subject of an appeal does not attend in person or by a representative at the time and place fixed for the hearing, the Commission may proceed in his or her absence.
(3)At an appeal—
(a)subject to this Act, the procedure of the appeal is at the discretion of the Commission; and
(b)the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit; and
(c)the Commission is not bound by the rules of evidence but may inform itself in any way it sees fit; and
(d)the Commission is bound by the rules of natural justice.”
Pursuant to s. 79M of the Act, certain provisions of the Evidence Act 1958 (Vic) apply in respect of any appeal to the Commission. Section 79M provides:
“79M. Commission powers on appeal
Sections 14 to 16 and 21A of the Evidence Act 1958 apply in respect of any appeal to the Commission under this Act as if the Commission were a board appointed by the Governor in Council and as if the Senior Commissioner or the Commissioner hearing the appeal had the powers of the chairman of a board appointed by the Governor in Council.”
On behalf of the applicant, substantial reliance was placed upon the granting of these powers contained in the Evidence Act on the Commission. Sections 14 to 16 and 21A of the Evidence Act provide:
“14. Power to send for persons and papers
It shall be lawful for any board appointed or to be appointed by the Governor in Council to summon by writing under the hand of the chairman or sole member thereof (as the case may be) any person whose evidence in the judgment of the said board or of any member thereof is material to the subject-matter of inquiry to be made by such board to attend the said board at such place and at such reasonable time from the date of such summons as is therein specified; and such person may be required by such summons to bring before such board any documents in his custody possession or control material to the subject-matter of inquiry. Such summons may be served either by delivering the same to the person required to attend or by leaving the same at his usual place of abode.
15. Power of member of board to examine upon oath
Any member of the board may administer an oath to and may examine upon oath any person so summoned or who happens to be present before the board and may call upon any such person to give evidence or to produce any specified documents or to give evidence and produce such documents.
16. Penalty for non-attendance or refusing to give evidence etc.
Every person who—
(a)being served as aforesaid with a summons to attend the board fails without reasonable excuse to attend as required or to produce any documents in his custody possession or control which he is required by the summons to produce;
(b)happening to be present before the board and being required so to do refuses to be sworn or without lawful excuse refuses or fails to answer any question touching the subject matter of inquiry or to produce any document—
shall be guilty of an offence against this Act and liable to be dealt with in accordance with section 20.
…
21A. Privileges and immunities in relation to inquiries
(1)Where, either before or after the commencement of this Act, a board has been appointed or a commission has been issued to persons by the Governor in Council to make an inquiry—
(a)the members of the board or the persons to whom the commission has been issued (as the case requires);
(b)legal practitioners and other persons appearing by leave before the board or commission; and
(c)witnesses in the inquiry—
shall have and shall be deemed always to have had the same privileges and immunities in respect of any act matter or thing done in or in relation to or arising in or out of the inquiry or any report of the inquiry as they would have or have had if the act matter or thing was done in or in relation to or arose in or out of an action in the Supreme Court of Victoria or a report of any such action.
(2)This section shall be read as in aid of and not in derogation from any Act law rule or practice that applies to or in relation to any such inquiry.”
Pursuant to s. 79Q of the Act, the Commission must hear and determine an appeal under the Act and may:
“(i) allow the appeal; or
(ii) dismiss the appeal; or
(iii)in the case of an appeal under s. 79H(a) or (c), dismiss the appeal and vary the decision.”
Section 79R of the Act requires the Board and the Chief Executive Officer to give effect to a determination of the Commission.
Facts
The applicant is a qualified fire fighter. Until 17 February 2005, he was employed by the Board. On that day, he was dismissed from his employment, as appears hereafter.
Prior to his dismissal, the applicant had been employed by the Board for approximately 15 years. Since his dismissal, he has been unable to find employment. He is 41 years of age and has five dependent children. The loss of his employment is, quite obviously, an extremely serious matter.
The dismissal of the applicant as an employee of the Board arose out of charges laid against him by the charging officer in December 2004 under s. 78B of the Act (“the charges”).
The charges arose out of an incident which occurred on 6 December 2004. The applicant was verbally ordered by a superior officer to wear an official Brigade uniform shirt in order to travel to attend a training course. It was alleged that the applicant disobeyed this order and then proceeded to verbally abuse and swear at the officer who issued the order. The applicant was charged with breach of the Regulations, and with disgraceful or improper conduct, contrary to s. 78A(a) and 78A(b)(e) of the Act.
Pursuant to s. 30 of the Act, the Chief Executive Officer delegated his duty to hear the charges to the delegate.
On 14, 15 and 17 February 2005, the delegate conducted a hearing into the charges.
On 17 February 2005, the delegate found the applicant guilty of the charges and dismissed him.
On 18 February 2005, the delegate published written reasons for his decision to dismiss the applicant. In those written reasons, the delegate considered evidence about the general character of the applicant.
The applicant then gave notice that he wished to appeal (“the appeal”). On 2 March 2005, a registrar of the Commission sent to the applicant’s solicitors minutes of proposed directions in the appeal. Those directions dealt with preparation of an appeal book and provided the applicant with leave to serve an amended notice of appeal if he desired to do so. Paragraph 3 of the directions proposed was in the following terms:
“3.The appeal be listed for oral argument at 10.00 am on a date to be determined on an estimated duration of 1 day, such argument to be confined to whether any legal error, factual error or error in the exercise of discretion, which has been identified in the Notice of Appeal, is established.”
It would appear that these minutes were prepared by the solicitors for the delegate, who was the respondent to the appeal. The proposed minutes included a note in the following terms:
“NOTE: Orders numbered 1 to 3 above are based on and consistent with the rulings and the directions of Commissioner FitzGerald in the matter of the Branchflower Appeals and the Directions of Commissioner Pimm in the matter of the McGrath Appeal.”
The reference to the Branchflower Appeals in the proposed minutes prepared on behalf of the delegate was a reference to a 2003 decision of Commissioner FitzGerald. In that decision, Commissioner FitzGerald decided that the nature of an appeal under s. 79I of the Act was one which required the establishment of error on the part of the decision-maker appealed from, and was not an appeal by way of re-hearing de novo. In the Branchflower Appeals, the Board argued that the appeals should be way of re-hearing de novo. It was submitted to the Commissioner on behalf of the Board in those appeals that:
“There are 2 recognised types of re-hearing appeals namely:
(a)A re-hearing appeal which requires an error of law or a wrong finding of fact to have been made by the decision maker. If identified, the rehearing is based on the evidence before the original decision maker and any evidence admitted by the Tribunal.
(b)A re-hearing de novo where the matter is retried with no advantage to the successful party.”
In this case, the arguments advanced on behalf of the Board in the Branchflower Appeals form the basis of the submissions made on behalf of the applicant.
In any event, there is no doubt that the issue as to the nature of the appeal was articulated at an early stage of the appeal by the applicant.
On 12 April 2005 there was a directions hearing in the appeal before Commissioner McIntyre. The evidence before me did not include a transcript of this directions hearing. Notes which were taken at the hearing indicate that counsel for the applicant submitted that the appeal should proceed as a re-hearing de novo. Counsel for the delegate, who was respondent to the appeal, submitted that it was not open to the Commissioner to proceed by way of re-hearing de novo because of the decision of Commissioner FitzGerald in the Branchflower Appeals and another ruling of Commissioner Pimm.
On behalf of the Board, it was submitted to me that the submission on behalf of the applicant at the directions hearing, to the effect that the appeal should proceed by way of re-hearing de novo, was based solely upon the fact that there was a deficiency in the record of what had occurred at first instance before the delegate. The limited evidence which is available does not permit me to resolve this issue. However, in my view, it does not matter. The fact is that counsel for the applicant submitted to the Commissioner that the appeal should proceed by way of re-hearing de novo. In response, it was submitted on behalf of the delegate, who was the respondent to the appeal, that the matter was covered by previous rulings of the Commission. Thereafter, the appeal proceeded on the basis that it was a re-hearing appeal in the strict sense, requiring the identification of error on the part of the delegate before the Commission would consider any further evidence.
The appeal was heard by Commissioner McIntyre on 18 April 2005. The appeal was conducted as a re-hearing appeal, not as as a re-hearing de novo.
On 26 April 2005, the Registrar of the Commission published a document containing the decision of the Commissioner to dismiss the appeal.
Nature of an appeal under s. 79I of the Act
Section 79I provides that an appeal to the Commission is to be by way of “re-hearing”. It was common ground that the Courts have recognised two forms of appeal by way of re-hearing:
(1)An appeal where the powers of the appellate body are exercisable only where the appellant can demonstrate that the order which is the subject of the appeal is the result of some legal, factual or discretionary error (“re-hearing appeal”); and
(2)An appeal where the powers of the appellate body may be exercised regardless of identification of error of the decision-maker appealed from, and involve a full re-hearing of the matter giving rise to the appeal (“de novo appeal”).
Whether an appeal is a re-hearing appeal or a de novo appeal is a matter of construction of the statute conferring the right of appeal.[1] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission Kirby J said[2]:
“In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies.”
[1]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-2; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [9]-[18].
[2](2000) 203 CLR 194 at [69].
In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd Mason J said[3]:
“Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. . . . The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-judiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine judiciable issues formulated in advance; to conduct a hearing at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction at the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer with depend upon an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a questions which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”
[3](1976) 135 CLR 616 at 621-2.
In my view, upon a proper construction of the Act, the right of appeal granted by s. 79I of the Act is a right to a de novo appeal.
A comparison between the procedures and powers applicable to a hearing by the Chief Executive Officer or a delegate of charges laid under s. 78B with the procedures and powers applicable to an appeal heard before the Commission indicates a statutory intent that the Commission conduct a de novo appeal. There are a number of factors arising out of this comparison which bring me to this view.
In the first place the Act does not specify the procedures to be adopted by the Chief Executive Officer or delegate in conducting a hearing into disciplinary charges under s. 78B. The Chief Executive Officer, who is not an independent person, is permitted by the Act to conduct such a hearing in any manner he or she thinks fit. Although the delegate in this case was an independent barrister, this was not required by s. 30 of the Act. In contrast, the Act makes specific provision for the procedures that must be adopted by the Commission, which is an independent body established with the sole function of hearing and determining appeals under the Act. For example, the Act specifically provides in s. 79L(3)(d) that the Commission is bound by the rules of natural justice. Although the Chief Executive Officer or delegate is no doubt subject to the rules of natural justice, by reason of the application of the general law, the fact that Parliament has specifically directed that the Commission abide by the rules of natural justice, but has not made a similar provision with respect to the Chief Executive Officer or delegate on the hearing of the disciplinary charges, is an important factor in the interpretation of s. 79I.
Secondly, the Act does not specify the powers exercisable by the Chief Executive Officer or delegate in conducting a hearing into disciplinary charges. For example, the Chief Executive Officer or delegate has no power to compel a witness to attend to give evidence or produce documents. In stark contrast, the Act makes detailed provision in relation to the powers exercisable by the Commission in conducting an appeal. By s. 79M of the Act, which gives the Commission certain powers specified in the Evidence Act, the Commission has been given the specific power to:
(1) compel witnesses to attend to give evidence and/or produce documents;
(2) penalise witnesses who fail to attend and/or produce documents; and
(3)administer oaths to witnesses appearing before the Commission, whether pursuant to subpoena or not, and thus attract the penalty of perjury if false evidence is given.
Further, witnesses attending before the Commission on the hearing of an appeal have the privileges and immunities specified in s. 21A of the Evidence Act. This is an important safeguard for witnesses and may ensure that witnesses are more likely to be forthcoming in their evidence, rather than being concerned about exposing themselves to the possibility of actions against them, such as for defamation.
On behalf of the applicant it was submitted that these express powers, and the privileges attaching to witnesses appearing before the Commission, are not available to the Chief Executive Officer or delegate hearing a charge laid under s. 78B of the Act. Nor does the Board have such powers when considering matters of promotion which may give rise to promotion appeals. It was submitted that these extra powers, and the granting of the privileges under s. 21A of the Evidence Act, are a strong indication that Parliament intended the re-hearing on appeal to be a re-hearing de novo. Otherwise, why give these extra powers to the Commission?
On behalf of the respondent, it was submitted that witnesses who were employees of the Board could be required, by reason of the terms of their employment, to attend and give evidence before the Chief Executive Officer or delegate on the hearing of a disciplinary charge laid under s. 78B and that this reduced the level of disparity between the powers of the Chief Executive Officer or delegate and the Commission. However, it was conceded that there was no power in the Chief Executive Officer or delegate to require relevant witnesses who were not in the employ of the Board to attend.
In my opinion, the fact that there is or may be power for the Chief Executive Officer or delegate to require employees of the Board to attend and give evidence before a disciplinary hearing, and to punish them by bringing disciplinary charges against them if they fail to do so, does not affect the substantial nature of the difference in the powers of the Chief Executive Officer or delegate on the one hand and the Commission on the other.
Further, there are a number of other provisions of the Act which, in my view, indicate that Parliament intended to confer a right to a de novo appeal under s. 79I. In particular, I note the following matters:
(1)The Act contains no provision that requires any record to be kept of the hearing of disciplinary charges laid under s. 78B. This is indicative of a parliamentary intention to grant a right to a de novo appeal[4]. The absence of a requirement to maintain a proper record is inconsistent with a re-hearing appeal, which depends upon demonstration by the appellant of legal, factual or discretionary error by the decision-maker below. The absence of this requirement is consistent with the existence of a right to a de novo appeal, in which the matter is heard afresh and a decision is given on the evidence presented at that hearing.
(2)The Act contains no power for the Commission to remit the matter to the Chief Executive Officer or a delegate for further consideration or for re-exercise of his or her discretion. The powers of the Commission are restricted by s. 79Q of the Act to allowing the appeal, dismissing the appeal or dismissing the appeal and varying the decision below. The power to remit a matter is consistent with a re-hearing appeal and inconsistent with an appeal de novo being intended[5].
(3)The Act contains no provision requiring the Chief Executive Officer or delegate to provide reasons for decisions. This is inconsistent with Parliament intending to confer a right to a re-hearing appeal and is consistent with a parliamentary intention to confer a right to a de novo appeal[6].
[4]Sperway Constructions (1976) 135 CLR 616 at 621.
[5]Sperway Constructions (1976) 135 CLR 616 at 621; Allesch v Maunz (2000) 203 CLR 172 at [44].
[6]Sperway Constructions (1976) 135 CLR 616 at 621.
It was submitted on behalf of the applicant that another factor indicating that Parliament intended to confer a right to a de novo appeal is to be found in the fact that the Act contains no provision requiring an appellant to provide grounds of appeal identifying error in the decision made below. This is indicative of an intention to confer a right to a de novo appeal. In response to this, it was submitted on behalf of the Board and the charging officer that reg. 29(4) does impose a requirement that an appellant must clearly state the grounds of appeal, with full particulars.
Two things may be said about the use of reg. 29(4) as a guide to discerning the intention of Parliament as to the nature of the appeal provided for in s. 78I. First, although the regulation provides for grounds of appeal and particulars, there is no specification that the grounds of appeal must identify error in the decision made below. Viewed in this way, the provisions of reg. 29(4) are equivocal on the question at issue. It is consistent with both forms of appeal that the issues be defined in advance of the hearing.
Secondly, an issue arises as to the extent to which it is appropriate to have regard to regulations made under an Act to interpret the Act in question. It was submitted on behalf of the respondent that regard could be had to the regulations to interpret the Act, especially in circumstances where, as here, the regulations were made contemporaneously with the relevant provisions of the Act which are under consideration.
In Hanlon v The Law Society Lord Lowry said in respect of the use of regulations to interpret the principal Act[7]:
[7][1981] AC 124 at 193-4.
“My Lords, when these regulatory provisions are so clearly relevant, it is pertinent to ask how far they are admissible for the purpose of construing section 9(6).
A study of the cases and of the leading textbooks … appears to me to warrant the formulation of the following propositions:
(1)Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2)Regulations made under the Act provide a Parliamentary or administrative contemporanea exposito of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3)Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4)Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5)The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6)Clear guidance may also be obtained from regulations which are to have effect as if enacted under the parent Act.”
The decision in Hanlon v The Law Society was referred to with approval by Heerey J in Elazac Pty Ltd v Commissioner of Patents[8].
[8](1995) 125 ALR 663 at 666-7.
In the course of argument in Brayson Motors Pty Ltd (In Liquidation) v The Commissioner of Taxation Mason J (as he then was) said of the use which could be made of regulations to interpret the parent Act[9]:
“One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.”
In the same case, in argument, Deane J said[10]:
“It is generally accepted that one looks at regulations only as an indication of what a government department thinks about the construction of an Act.”
[9](1985) 156 CLR 651 at 652.
[10](1985) 156 CLR 651 at 652.
The statement of Mason J in argument in Brayson was referred to with approval by the Full Court of the Federal Court in Flanagan v Commissioner of Australian Federal Police[11].
[11](1995) 60 FCR 149 at 196-7.
In my view, the fact that the relevant regulation was made at the time of inclusion in the Act of s. 79I does mean that the Court can look at the regulation when considering the overall scheme of the appeal rights granted by the Act. However, as I have said, reg. 29(4) is equivocal, in the sense that it is consistent with both forms of appeal under consideration. Further, reg. 29(5) is consistent with both forms of appeal. In my view, the Regulations are, on any view, not decisive of the issue which I must determine as to the nature of the appeal granted under s. 79I of the Act.
In my opinion, it is also relevant to the construction of s. 79I of the Act to consider the nature of the decision which is the subject of appeal. In this regard, it is relevant that s. 79I provides for both disciplinary appeals and promotion appeals. Each of these may involve very serious consequences for the appellant. The most serious of these is demonstrated by this case. The applicant’s employment is at risk. A decision to dismiss an employee constitutes “a deprivation of a valuable privilege” such that Parliament may be taken to have intended to confer a right to a de novo appeal[12].
[12]Sperway Constructions (1976) 135 CLR 616 at 624-5.
A final matter which I think is highly relevant to the interpretation of s. 79I is the fact that it provides for both disciplinary appeals and promotion appeals. Promotion appeals are from decisions made by the Board under s. 25B(1)(e) of the Act. Apart from the Regulations, which specify notification requirements for applications for promotion and of promotions, there is no procedure specified in the Act. The standard to be applied in dealing with promotions of operational staff is also contained in the Regulations[13].
[13]Reg. 24(1).
Under s. 9 of the Act, the Board is comprised of up to seven members appointed by the Governor-in-Council. The functions of the Board are stated in s. 7 of the Act. Having regard to the broad ranging nature of these functions, promotion matters are likely to occupy a very small amount of the time of the Board. It is in my view extremely unlikely that a body such as the Board was intended to conduct a hearing in relation to promotion matters. There is no requirement in the Act for the Board to conduct such a hearing. Nor is there any requirement in the Act for the Board to keep a record of its deliberations on a promotion application or to provide reasons for its decision. Accordingly, it is likely that a promotion appeal under s. 79I will be the first and only opportunity which an aggrieved employee may have to test the factual basis on which his or her application for promotion was determined. In these circumstances, I am of the opinion that Parliament intended to grant a de novo appeal to a person aggrieved by a decision to refuse his or her application for a promotion.
In this regard, I note that it was argued on behalf of the defendant that an appeal under s. 79I may be of a different nature depending on whether it was a disciplinary appeal or a promotional appeal. I reject this submission. In my view it is inconsistent with the decision in Coal and Allied[14].
[14](2000) 203 CLR 194 at [18] per Gleeson CJ, Gaudron and Hayne JJ.
For the above reasons, I am of the view that Parliament intended to grant an appellant under s. 79I a right to a de novo appeal. That was not done in this case. What is the consequence of this? In my opinion, by hearing and determining the appeal as a re-hearing appeal, the Commission fell into jurisdictional error by misapprehending the nature of its function under s. 79I.
In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ said[15]:
“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.”
Their Honours proceeded to consider a number of ways in which a court may fall into jurisdictional error. These included[16]:
“Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the exercise of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.” (Emphasis added.)
[15](1994) 184 CLR 163 at 177; see also Coal & Allied (2000) 203 CLR 194 at [31].
[16](1994) 184 CLR 163 at 177.
Relief
There remains to be considered the question of whether, in the exercise of my discretion, I should grant the applicant the relief which he seeks. On behalf of the respondent, it was submitted that I should deny the applicant relief because the applicant and his lawyers did not “take the point” about the nature of the appeal required by the Act before the Commission. As I have said, I do not accept that this was so. Although it may be that counsel for the applicant sought a de novo appeal on the ground that there were deficiencies in the record of the proceedings before the delegate, he nevertheless sought that the appeal proceed as a de novo appeal. This was denied to him, on the basis that there were previous decisions of other Commissioners to the effect that the nature of an appeal under s. 79I was a re-hearing appeal. These previous decisions were, in my view, wrong and provided no basis to refuse the applicant’s request for a re-hearing de novo.
Although I have a discretion, I am of the firm view that I should make an order in the nature of certiorari quashing the decision to dismiss the appeal, and remit the matter to the Commission for re-hearing of the appeal according to law in accordance with these reasons. The applicant’s employment should not remain terminated as the result of a flawed appeal process which does not comply with the Act.
Having regard to my decision on the nature of the appeal, it is unnecessary for me to consider the second ground on which the order for review was made by the Master.
I will hear the parties as to the form of orders and as to costs.
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