Gibbons v Deegan & Ors No. Scgrg-99-1112

[2000] SASC 144

GIBBONS v DEEGAN & ORS
[2000] SASC 144

Civil - Application for Judicial Review

1. DEBELLE J.     In this application for judicial review the plaintiff seeks to set aside a decision of the South Australian Police Department Promotion Appeal Board.

2. The first three defendants are the members of the Promotion Appeal Board and I will refer to them as the Board.  The fourth defendant is Detective Senior Constable Butvila who was successful in his appeal to the Board.  The Board stated through its counsel that it will abide the order of the court.  The Attorney-General appeared as amicus curiae.  I will discuss later issues arising out of the Attorney-General’s appearance.  Detective Butvila had earlier informed the court that he did not wish to appear or make submissions.

3. The affidavits admitted as evidence were:

1. the plaintiff’s affidavit sworn 16 September 1999;

2. the plaintiff’s affidavit sworn 7 January 2000;

3. the affidavit of Meredith Huxley sworn 14 December 1999;

4. the affidavit of Brian Smith sworn 6 January 2000.

All of the exhibits to these affidavits were also admitted.  Mr Smith was cross-examined on his affidavit.

1. The plaintiff is a member of the South Australian Police Force holding the rank of Detective Senior Constable.  By notice published in the Police Gazette on 29 July 1998, the Commissioner of Police invited applicants for appointment as a Senior Investigator in a number of divisions of the Criminal Investigation Branch in the metropolitan area.  Four different positions were available in three divisions of the Criminal Investigation Branch.  They were No. 1 and No. 2 Senior Investigator at Port Adelaide division, and Senior Investigator at the Elizabeth and Holden Hill divisions.  The plaintiff applied for the position as No. 2 Port Adelaide Criminal Investigation Branch Senior Investigator.  He did not apply for any other position.  There were at least 12 other applicants for the same position.  They included Detective Senior Constable Butvila, who had applied for all four positions.

2. The procedure regulating the appointment and appeals against appointment in force at this time were the Police Act 1952 and the Police Regulations 1998.  The position of Senior Investigator attracts the rank of Sergeant.

3. Regulation 46 authorises the Commissioner to appoint an advisory committee consisting of not less than three persons to assist him to determine the suitable applicant for a position.  Pursuant to reg 46, the Commissioner appointed a Selection Advisory Committee (“the SAC”) comprising three Inspectors of the Police.  The SAC is required by reg 46(2) to examine the claims of all eligible applicants and to recommend the applicant it considers most suitable on merit, having regard to the following matters:

(a)     efficiency in the performance of police duties;

(b)experience, both in the Force generally and of any special conditions applicable to the position;

(c)knowledge, skills, and aptitudes relevant to the position in respect of which the vacancy exists;

(d)nature of any studies or training undertaken, examinations passed and results obtained;

(e)good conduct;

(f)ability to command the respect of and to work harmoniously with others;

(g)results of any oral, written, medical or psychological tests or interviews or other assessment procedures conducted by or at the request of the committee.

Guidelines have been prepared to assist the SAC in conducting the selection process.  They repeat the requirements of reg 46(2).  Those guidelines require the SAC to assess each candidate against the listed criteria.  If consideration of the written applications does not clearly identify the most suitable candidate, the SAC may prepare a short list for interview.

1. One of the documents to be completed by the SAC in respect of each candidate is called a Factor Comparison Chart.  The front page of the chart states whether the applicant is qualified for the position and then makes provision for details to be recorded in respect of that applicant under four headings.  The headings are:

   Experience
   Knowledge, Skills and Aptitudes
   Ability to command respect and work harmoniously with others

   Efficiency.

2. The chart is to be completed by the SAC from details provided by each applicant in his application and other documents provided to the SAC.  It must include a detailed justification of the merits or demerits of each applicant as assessed against each of the criteria specified in reg 46(2).  The assessment is then marked according to the following ratings:

   Very suitable
   Suitable
   Marginally suitable
   Poor

   Unsuitable.

The members of the SAC must prepare a summary of the Factor Comparison Chart which is the consensus of the members.  It is called the “Consensus Summary”. 

1. The SAC identified a short list of applicants for interview.  The list did not include Detective Butvila as the SAC had decided not to recommend him for appointment.  The Consensus Summary concerning Butvila was expressed in these terms:

   “Despite favourable comments by Det Inspector Paynter and D/S/Sgt Griffiths this applicant has failed to provide evidence of recent significant investigational achievements.  Other comments and his own application file indicates a strong administrative approach to his duties, some of which is not particularly relevant to his core function.  The majority of his supervisory relieving experience was at the OCTF which did not involve leading teams containing large numbers.”

The SAC interviewed the remaining candidates on the short list.  On 16 December 1998 it recommended four applicants for the position.  In the order recommended, they were Detective Batley, the plaintiff, Detective Weeding and Detective Heath.

1. On 30 December 1998 the plaintiff was appointed to the position of No. 2 Port Adelaide Criminal Investigation Branch Senior Investigator.  Batley was appointed to the position as the No. 1 Senior Investigator.  Other officers were appointed to Elizabeth and Holden Hill.

2. Section 41(2)(a) of the Police Act provides an eligible but unsuccessful applicant with a right of appeal to the Promotion Appeal Board.  On 13 January 1999 Detective Butvila appealed to the Board against the appointment of each of the successful applicants.  Eight other persons also appealed against the appointment of the plaintiff.  Later, three of those persons withdrew their appeals.  There were, in the result, five persons appealing against the plaintiff’s appointment.  All had sent written submissions to the Board.

3. The Board heard the appeals in the following order.  It first heard the appeal for the Senior Investigator No. 1 at Port Adelaide, then for the positions at Elizabeth and Holden Hill and, finally, for the position of Senior Investigator No. 2 at Port Adelaide.  As a result of the first three appeals, two of the appellants against the plaintiff’s appointment were appointed to other positions.  They withdrew their appeals against the plaintiff’s appointment.  Thus, there remained three appellants against the plaintiff’s appointment.

4. The plaintiff and two of the appellants made submissions to the Board.  Although invited to do so, Detective Butvila declined to make an oral submission.  The plaintiff was last to make an oral submission.  Immediately after he had ended his submission, the Board announced that it had unanimously decided that Detective Butvila should be appointed to the position.  There is a conflict in the affidavit evidence as to whether the Board deliberated before giving its decision.  The plaintiff’s evidence was that it did not.  He said that the presiding member of the Board gave the Board’s decision without consulting the other two members of the Board or communicating with them in any way.  In his affidavit, Mr Smith, the secretary of the Board, gave evidence that the Board deliberated before giving its reasons but did not leave the hearing room.  Mr Smith was cross-examined on other issues but his evidence that the Board had deliberated was not tested in any way.  I find that the Board deliberated before giving its reasons.

5. The reasons of the Board were expressed in these terms:

   “This is an appeal by Messrs Calandro, Weeding and Butvila against the nomination of Mr Gibbons for the position of Senior Investigator, Crime Command; the rank is that of Sergeant.  The Senior Investigator is accountable for the supervision of subordinate team members to ensure satisfactory conclusions of investigations of reported crimes by reporting and arresting offenders or recommending filing of reports after all lines of investigation have been exhausted and for performing relieving duties as directed and also is responsible for the development, health and safety of all subordinate staff under his or her control and maintaining a discrimination and harassment free work and service delivery environment.

   Each of the appellants and the nominee have put forward their argument primarily by way of written documents.  The board has examined all the written documents and the annexures.  Each of the appellants, as is the nominee, are highly suitable for the position and are very highly recommended by other officers within the South Australian Police Department.  This board has however, come to a conclusion which differs from that of the original panel, the Selection Advisory Panel.  This board is unanimous in its decision that the panel did err and that Mr Butvila is in our opinion the person most superior for the position advertised.

   We refer to the factor comparison chart:

   his experience in the Police force is significant,

   he has accumulated a broad cross section of investigation experience as a General Detective and in specialist roles within the task force environment,

   has been a leader on protracted and complex investigations and is capable of handling such assignments without supervision,

   a very high knowledge of law, General Orders and police procedures,

   conduct is exemplary,

   is an approachable honest and open person who relates well with others,

   respected for his dedication ability and all round performance as a Detective.

   I might say on behalf of the board, this decision has been very difficult.  Mr Gibbons obviously is a very highly experienced and he is an exemplary officer [sic].  We have been and we are unanimous in the decision however that on this occasion Mr Butvila is the superior candidate.  Accordingly, we allow the appeal.  We quash the original decision and we order the position filled by Mr Butvila and dismiss the other appeals.”

6. In this application for judicial review, the plaintiff seeks an order in the nature of certiorari quashing the decision made by the Board ordering that the position be filled by Detective Butvila and dismissing the other appeals.  He also applies for an order directing the Board to re-hear the appeals against the nomination of the plaintiff to the position.

7. The plaintiff’s affidavit in support of this application makes a number of complaints about the manner in which the appeal proceeded but does not clearly state the grounds on which he relies.  It is essential that, in the affidavit in support of the application, applicants for judicial review state in unambiguous terms the grounds on which they rely.  Neither the court, nor the opposing party, should be required to search the affidavit in an attempt to glean the nature of the complaint.  The failure to state clearly the grounds of the application could result in an application being dismissed.

8. The nature of appeals to the Promotion Appeal Board was considered by Williams J in Franklin v Promotion Appeal Board (unreported, 19 May 1998, Judgment No. S6680).  His Honour held that the appeal is not a hearing de novo but a review of the selection made by the Commissioner.  In His Honour’s view it was a hybrid appeal: see the analysis of the nature of appeals by Cox J in Wigg v Architects Board of South Australia (1984) 36 SASR 111. His Honour’s analysis was expressed in these terms:

   “In my opinion the hearing before The Police Promotion Appeal Board is not a hearing de novo.  The hearing is a review of the selection made by the Commissioner based upon his opinion formed in the environment of reg43(1) and in the light of the Commissioner’s determination for the purposes of s41(7) and the selection itself mentioned in s41(1).  ‘Selection’ in this context involves the making of a choice as a matter of judgment or opinion with respect to factors which are worthy of consideration.  It would not advance the legislative purpose to allow caprice or other unworthy factors to intrude into this process.  Merit must underlie the selection and review process.  Nevertheless the Commissioner’s choice is given a particular status under s41(5) until the Board is satisfied that the Commissioner’s opinion should be displaced.

   ...

   The Board is required to test the position as at the date of the Commissioner’s decision and with reference to the circumstances then existing.  Evidence subsequently becoming available may be admitted for a limited purpose (and in particular for confirming or throwing light upon a fact existing at the earlier date of the Commissioner’s decision).

   The Board is required to bring to bear an independent judgment upon a matter where the decision may sometimes be essentially subjective.  The question is not whether the Commissioner could properly have made the selection in terms of his notice under s41(1).  The Board must make up its own mind.  If it differs from the conclusion of the Commissioner, that circumstance does not logically lead to the necessary conclusion that there has been a ‘mistake’ on the part of the Commissioner.”

The parties accepted those observations as a correct exposition of the Board’s powers and duties.  As the SAC was acting as the delegate of the Commissioner, it was the SAC’s opinion which was relevant in these appeals.  The Board’s duty was, therefore, to determine whether there was any reason to depart from the SAC’s opinion as to who should be the successful candidates.

1. Mr Heywood-Smith, who appeared for the plaintiff, relied on three grounds in support of this application.  He submitted that the Board had acted in breach of the rules of natural justice in three respects.  The first was that the Board had not addressed the criteria on which the SAC had assessed the plaintiff to be superior and had given no reasons to suggest that it had.  As the argument unfolded it became clear that, in this respect, Mr Heywood-Smith was contending that the Board had improperly exercised its powers in that it had failed to have regard to relevant factors.  There is a view that a failure to have regard to the relevant factors is a breach of the rules of natural justice: see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366. But the views of Deane J on that issue were not followed by other members of the court. I will therefore proceed on the footing that the failure to have regard to relevant considerations constitutes an improper exercise of a power and is reviewable on that ground: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. The constraints upon the court’s power to set aside a decision on this ground are noted by Mason J at pages 39 – 42 and I have regard to them. It is unnecessary to repeat what His Honour said.

2. Some of the relevant considerations which the Board is bound to take into account are set out in reg 46 but there are others which are not.  They are to be implied from the subject matter, scope and purpose of the Act, the selection procedures and the right of appeal.  I acknowledge that a party affected by a decision is not entitled to make an exhaustive list of all matters which the Board might conceivably regard as relevant and then attack the decision on the ground that one was not taken into account.  As Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375:

   “In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground or failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”

Those observations were approved by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39. However, on any view of this matter, the Board was bound to examine the respective qualities of the candidates and to determine whether there was any ground for interfering with the SAC’s opinion.

1. The SAC had assessed the plaintiff as being a superior candidate to Detective Butvila in two respects.  First, it had concluded that Detective Butvila lacked recent relevant investigation experience and recent supervisory experience.  The plaintiff had satisfied both requirements.  The Consensus Summary made by the SAC on the Factor Comparison Chart in relation to the plaintiff reads:

   “Applicant has diverse investigational experience including high level of technical application (LD and TI).  Has provided evidence of excellent results in significant investigations.  His supervisory experience although not as extensive as others is equal in quality to any other applicant.  At interview was most impressive and positive.  Demonstrated a high level of organisational knowledge and easily confirmed the contents of the application.  Provided actual examples of initiatives.”

In addition, the SAC had given the plaintiff a higher grading than Detective Butvila for three of the four categories in the Factor Comparison Chart and the same grading for the fourth.  In no respect did the plaintiff receive a lower grading than Detective Butvila.

1. Given that the hearing by the Board is a review of the candidates selected by the Commissioner on the recommendation of the SAC and that the Board must be satisfied that the Commissioner’s selection should be displaced, it is readily apparent that the Board is bound to have regard at least to the grounds on which the successful candidates had been selected and those on which the unsuccessful candidates had been rejected.  As Ellicott J said in Finch v Goldstein (1981) 55 FLR 257 at 273, the Board had two basic duties – to make full inquiries into the claims of the parties and to act fairly to the parties in so doing. In this case, the Board had to address not only that the plaintiff had received superior gradings from the SAC but also that the SAC had concluded that Detective Butvila lacked recent relevant investigative experience and recent supervisory experience. Thus, in addition to a comparison of the respective merits of the plaintiff and Detective Butvila, two other relevant factors to be considered by the Board were whether Detective Butvila had the required investigative experience and supervisory experience. This conclusion is confirmed by the fact that the Board’s own summary of the duties of Senior Inspector begin with the duty to supervise and to ensure satisfactory conclusion of investigation of reported crimes. Another relevant factor for the Board to consider was why it should depart from the SAC’s opinion that the plaintiff should be preferred to Detective Butvila.

2. The Board’s reasons show that it has not considered Detective Butvila’s lack of the two specified qualities, nor the fact that the plaintiff was assessed as having superior qualities in those two and other respects.  They were issues central to its decision.  In addition, the Board’s reasons show that it did not address the fact that the SAC had assessed the plaintiff as having superior qualities to Detective Butvila.  Although the Board in its reasons said that it referred to the Factor Comparison Chart, it did not do so for the purpose of comparing the plaintiff with Detective Butvila but simply for the purpose of listing certain qualities of Detective Butvila.  An examination of the Factor Comparison Chart for Detective Butvila shows that the list of his qualities set out in the Board’s reasons is no more than a recital of a few extracts from the SAC’s completion of the Factor Comparison Chart.  The Board’s reasons do not in any respect address the question of the comparative skills and qualities of the plaintiff and Detective Butvila except to the extent that it concludes that it prefers Detective Butvila over the plaintiff.  For all of these reasons, the Board has wholly failed to take relevant factors into account when making its decision.

1. This Court will not substitute its decision for that of the Board.  This application is not an appeal.  Instead, it is an examination of whether the Board has properly exercised its powers.  For the reasons above, it has not.

2. The failure of the Board to consider all relevant factors requires that its decision be set aside.  For these reasons, it is unnecessary to address the remaining grounds upon which Mr Heywood-Smith contended there had been a failure to comply with the rules of natural justice.

3. For these reasons, I allow the application.  There will be an order setting aside the decision of the Board.  The appeal must be remitted to the Board for further hearing and determination.