Hamblin v Duffy (No 2)

[1981] FCA 122

Re: RITA HAMBLIN
And: PETER DUFFY, WILLIAM WHITE, MARK AARONS, PROMOTIONS APPEAL BOARD and
AUSTRALIAN BROADCASTING COMMISSION (1981) 55 FLR 228
No. G5 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - officer of A.B.C. provisionally promoted to vacant position - more senior officer applied for same position - appeal by more senior officer to Promotions Appeal Board alleging equal efficiency and seniority disallowed - whether there is a decision of the Promotions Appeal Board in the absence of any member - whether the rules of natural justice apply to the proceedings of the Promotions Appeal Board - construction of Australian Broadcasting Commission (Staff) Regulations r. 11 (2).

Administrative Decisions (Judicial Review) Act, 1977 (Cth.) s. 16

Australian Broadcasting Commission (Staff) Regulations r. 11 (1),(2)

Broadcasting and Television Act, 1942 (Cth.) Div. 2 Pt. III; ss. 43 (3), 45, 46, 47, 48, 48(A), 49 (1), (2), (4), (5), (6), 50 (1), (2), (4), (5), 51, 52, 54, 55, 56, 57, and 58.

Administrative Law - A.B.C. officer applied for appointment as senior reporter - Officer junior to applicant provisionally promoted to position - Appeal by applicant to Promotions Appeal Board - Application of rules of natural justice to proceedings of Board - Evidence taken by Board not fully disclosed to applicant - Failure to hear witnesses recommended by applicant to meet criticisms of her by Board - Termination of Board's hearing by chairman pursuant to Australian Broadcasting Commission (Staff) Regulations, reg. 11 (2) - Construction of reg. 11 (2) - Dismissal of appeal - Constitution of Board by three members - Walkout by member prior to determination - Whether determination was decision of Board - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 16 - Broadcasting and Television Act 1942 (Cth), Pt III, Divn 2 - Australian Broadcasting Commission (Staff) Regulations, reg. 11 (1), (2).

HEADNOTE

The applicant was employed by the fifth respondent, the Australian Broadcasting Commission (the A.B.C.). During her employment with the A.B.C. a vacancy arose in the position of senior reporter and the applicant applied for the position. However, an officer junior to the applicant was provisionally promoted to the position. The applicant appealed against the other officer's promotion pursuant to s. 49 (2) of the Broadcasting and Television Act 1942 to the fourth respondent, the Promotions Appeal Board, which comprised the first, second and third respondents. On 28th November, 1980, the hearing began before the Board with the applicant giving evidence on that day. The Board convened on three subsequent occasions with the final hearing date being 22nd December, 1980, at which time the applicant also gave evidence. The applicant was not present during the Board's hearing otherwise than during her own interviews. The applicant was informed of evidence critical of her and in her second interview she nominated certain officers who could give evidence about the matters raised.

After the applicant's second interview discussions took place between the members of the Board at which the third respondent urged that the various persons named by the applicant be interviewed. After some discussion the chairman decided to bring the proceedings of the appeal to an end pursuant to reg. 11 (2) of the Australian Broadcasting Commission (Staff) Regulations. The second respondent then said that there was no point in interviewing further witnesses as "he had already made up his mind". The third respondent then stated that he would take no further part in the proceedings and would not "sign the papers concluding the appeal". He then departed.

The applicant then received a letter from the Board's chairman informing her that her appeal had been disallowed. The applicant then applied for an order of review to the court under the Administrative Decisions (Judicial Review) Act 1977. A preliminary application was made to the court to determine whether a decision of the Promotions Appeal Board was "a decision of an administrative character" under the Administrative Decisions (Judicial Review) Act.

Held: (1) In order for the Board to determine an appeal to it under s. 49 of the Broadcasting and Television Act 1942 all three members must be present. As the Board had not made any decision determining the appeal before the departure of the third respondent, the absence of the third respondent inevitably led to the conclusion that there was no such decision and any purported decision of the remaining two members was a nullity.

(2) Although the court has a discretion to quash or set aside decisions or make other orders under the Administrative Decisions (Judicial Review) Act, having reached the conclusion that the decision was a nullity, there was no reason to conclude otherwise than that the decision should be quashed or set aside.

(3) Although sharp distinctions have been drawn between decisions of judicial, quasi-judicial and administrative tribunals, courts today tend to pay less regard to the niceties of those distinctions and approach the question on the broader footing that persons or bodies empowered by statute to make decisions are prima facie bound to observe the rules of natural justice.

Twist v. Randwick Municipal Council (1976), 136 CLR 106; Salemi v. MacKellar (No. 2) (1977), 137 CLR 396; Heatley v. Tasmanian Racing and Gaming Commission (1977), 137 CLR 487; R. v. Australian Broadcasting Tribunal; Ex parte Hardiman (1980), 144 CLR 13; Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963), 113 CLR 475, referred to.

(4) It is impermissible to approach the question of the application of the rules of natural justice as if they required the observance of absolute standards. The application of particular rules depends on the circumstances of each case, with much depending on the character of the particular tribunal, the task it performs and the extent to which its decisions affect others.

(5) The rules of natural justice apply to the proceedings and the decision of the Board and the provisions of reg. 11 (2) of the Australian Broadcasting Commission (Staff) Regulations do not oust the application of the rules.

Breen v. Amalgamated Engineering Union, (1971) 2 QB 175; R. v. Teachers Tribunal; Ex parte Colvin, (1974) VR 905, referred to.

(6) An officer of the A.B.C. who appeals to the Board is entitled to know the case against him, to answer it and to put his own case.

Board of Education v. Rice. (1911) AC 179; Crofton Investment Trust Ltd. v. Greater London Rent Assessment Committee, (1967) 2 QB 955; Kanda v. Government of Malaya, (1962) AC 322; Re Pergamon Press Ltd., (1971) Ch 388, referred to.

(7) As the comparative efficiency of the applicant and the officer provisionally promoted to the senior position was a critical question to be determined by the Board the failure to call the people suggested by the applicant who might have been able to give material evidence on something so fundamental was a denial by the Board of the right of the applicant to have her appeal determined in accordance with the requirements of natural justice.

(8) The language of s. 49 (4) of the Broadcasting and Television Act 1942 and in particular the reference to the Board making "full inquiry" connotes that the Board must observe the substantial elements of natural justice.

General Medical Council v. Spackman, (1943) AC 627; Kruger v. Pharmacy Board of South Australia (1979), 22 SASR 339, referred to.

(9) In bringing the appeal to an end pursuant to reg. 11 (2) of the Australian Broadcasting Commission (Staff) Regulations the chairman acted on the assumption that he could terminate the appeal whenever he wished and that it was for him alone to determine the application of the rules of fair play and in doing so acted beyond power and in a respect so material as to vitiate the proceedings.

(10) Nothing in the Broadcasting and Television Act evinces an intention to exclude the established common law standards of fairness either by "express words or by necessary implication".

Twist v. Randwick Municipal Council (1976), 136 CLR 106, referred to.

(11) It is appropriate to order that the Board exercise its jurisdiction by hearing and determining the applicant's appeal and in doing so it makes no difference that the Board is not a body corporate or that two of its members are appointed on an ad hoc basis.

Kerr v. Commissioner of Police, (1977) 2 NSWLR 721, referred to.

HEARING

Sydney, 1981, July 2-3, 31. #DATE 31:7:1981

APPLICATION FOR AN ORDER OF REVIEW.

J. W. Shaw, for the applicant.

M. Pembroke (solicitor), for the first and second respondents.

A. J. Katzmann, for the third respondent.

M. B. Smith, for the fifth respondent.

Cur. adv. vult.

Solicitors for the applicant: Turner Freeman.

Solicitors for the first and second respondents: Freehill Hollingdale & Page.

Solicitors for the third respondent: Bartier Perry & Purcell.

Solicitor for the Australian Broadcasting Commission: J. McD. Harris.

J. J. ISLES

ORDER

1.The decision of the Promotions Appeal Board that the appeal of the applicant to the Promotions Appeal Board pursuant to s.49 (2) of the Broadcasting and Television Act (1942) against the provisional promotion of an officer of the Australian Broadcasting Commission, namely Peter Cave, to the position of Senior Reporter (Radio Public Affairs) position No. 830 be disallowed, be set aside;

2. The Promotions Appeal Board exercise its jurisdiction by hearing and determining the applicant's appeal;

3. The application is adjourned to a date to be fixed to hear evidence and argument, if any, on costs; and

4. Each party be at liberty to apply on two day's notice.

Orders accordingly.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by Rita Emily Hamblin ("the applicant"), an officer of Australian Broadcasting Commission ("the A.B.C."), for an order of review of the decision of the Promotions Appeal Board ("the Board") disallowing an appeal to it by the applicant against the provisional promotion of another officer of the A.B.C. to a more senior position.

The A.B.C. raised a preliminary objection to the jurisdiction of this Court to hear the application on the ground that the decision of the Board was not a decision "of an administrative character" within the meaning of the Judicial Review Act. On 15 April 1981 I held that the Board's decision was one "of an administrative character" and overruled the objection to competency.

The application came on for hearing before me on 2 July 1981. The applicant asserts that, in hearing her application, the Board was bound by the rules of natural justice and that it failed to observe them in two principal respects namely:
(a) that evidence was taken by the Board, but not disclosed, or not fully disclosed, to the applicant; and

(b) that the Board failed to take evidence from persons specified by the applicant, or known to the Board, as being capable of giving evidence in support of her appeal, upon material questions relating to the applicant's efficiency when the Board had already heard evidence from other witnesses critical of her efficiency.

The applicant relies upon the same matters to found an alternative claim namely, that the Board failed to make "full inquiry" into the claims of the applicant as required by s. 49 (4) of the Broadcasting and Television Act 1942 ("the Broadcasting and Television Act").

The facts are not in dispute. The applicant is a reporter grade 3, working in the "Radio Public Affairs" branch of the A.B.C. In late June 1980 a vacancy arose for a position more senior to hers namely, Senior Reporter (Radio Public Affairs) Position No. 830. On 11 July 1980 the applicant applied for appointment to the vacant position. Three other people, including Mr. Peter Cave, also applied.

On 4 October 1980 Mr. Mackrell, a delegate of the A.B.C.'s powers under s. 47 of the Broadcasting and Television Act, approved a recommendation of the Interviewing Committee that Mr. Cave be provisionally promoted to the position. On 16 October 1980 this decision was notified in the Official Bulletin of the A.B.C. and the applicants for the vacancy, including the applicant, were informed of the recommendation.

At all material times the applicant was a more senior officer than Mr. Cave.

On 3 November 1980 the applicant lodged an appeal, pursuant to s. 49 (2) of the Broadcasting and Television Act, against the provisional promotion of Mr. Cave to the vacancy, alleging seniority and equal efficiency to that of Mr. Cave.

The Board, constituted by s. 50 of the Broadcasting and Television Act, began the hearing of the applicant's appeal on 28 November 1980. The Board consisted of the first respondent (Mr. Peter Duffy) as Chairman of the Board, the second respondent (Mr. William White) being an officer appointed by the A.B.C. to the Board, and the third respondent (Mr. Mark Aarons) being an officer nominated by the organisation of which the applicant was a member namely, the A.B.C. Staff Association.

The Board met on four occasions: 28 November 1980; 1, 4, and 22 December 1980. Witnesses were interviewed by the Board on each occasion. The applicant was interviewed on 28 November and 22 December.

The evidence as to the procedures adopted by the Board, the number of persons interviewed by it, what was said by them and the reasons for the Board's ultimate decision disallowing the applicant's appeal are not very clear. If the Board kept minutes, and I do not know whether it did or not, they are not in evidence. Mr. Aarons kept extensive notes of what was said by every witness; but they were not tendered. The evidence as to what occurred during the meetings of the Board was given by Mr. Aarons and the applicant; but she can speak only as to the occasions on which she herself was present.

Some of the people interviewed by the Board gave evidence to the effect that Mr. Cave was more efficient than the applicant in a number of respects including the training of junior staff, general supervision and work on "night shifts"; whilst others gave evidence that the applicant was at least as efficient as Mr. Cave, and superior in some respects.

The applicant was not invited by the Board to be present, nor did she ask to be present, nor was she present otherwise than during her own interviews on 28 November and 22 December. She did not ask for, nor was she given, any opportunity to ask questions of Mr. Cave or of any other persons who gave evidence before the Board; any opportunity to be represented at any time during the course of the Board's hearing; or any record of the Board's proceedings.

On 4 December 1980 Mr. David Ford, the Executive Producer of the programme "A.M.", gave evidence before the Board critical of the applicant's capacity to supervise and carry out the duties of the "night shift", which is a major factor in the preparation of "A.M.". Mr. Ford told the Board of complaints said to have been made by Mr. Tony Chilton, Technical Producer of "A.M.", about the applicant's performance on the "night shifts".

The applicant was asked to appear before the Board, for the second time, on 22 December 1980. Mr. Aarons put to her a number of criticisms of her work which had apparently been expressed to the Board by various witnesses during earlier interviews. The applicant denied the criticisms. She denied the allegation that she did not take sufficient interest in the training of junior members of staff, and suggested that the Board should speak to some of the people whom she had trained and seek their views. She specifically mentioned two persons - Mr. Andrew McKinnon and Mr. Mark Bannerman, each of whom, she said, had received "substantial training" under her supervision.

The applicant denied that she had caused problems by her performance on the "night shift" and she denied, in particular, that she had not left "proper notes" for the "morning producer and for the technical people in the morning" and failed to sufficiently telephone the Executive Producer during the "night shift" to discuss the compilation of the programme "A.M.". The applicant nominated officers of the A.B.C. who could give evidence about these matters. The officers whom she named, and whom she said had worked on the "night shift" with her were Mr. Bannerman, Mr. McKinnon, Mr. "Johnny" Bwin and Kerry Weil (the evidence does not disclose whether Kerry Weil is a man or a woman; hence my reference in these terms).

The applicant gave evidence before me that the first occasion on which she knew that criticisms had been made to the Board of her capacity and efficiency was when the Board informed her of these matters during her second interview on 22 December. Doing the best she could, she dealt with those criticisms, denied them and gave the names of the people to whom I have referred. She swore that she did not know, when mentioning the names of those people, whether their evidence would be in her favour or not; all she knew was that they were people who could give first hand evidence of the matters in question. Hence she suggested that they be called by the Board.

None of the persons named by the applicant on 22 December were interviewed by the Board nor was any evidence otherwise taken from them.

Mr. Aarons gave evidence before me both by affidavit and viva voce. He said that, in discussions between members of the Board after the second interview (22 December) with the applicant, he "urged" that the various persons named by the applicant be interviewed by the Board. After some discussion the Chairman of the Board read a statement to the Board which included words to the following effect:
"I will now bring the proceedings of this appeal to an end. I believe that this is legal in terms of the Regulations as I am empowered to direct the procedures of the Board under Regulation 11 (2) which states that, 'the procedures at meetings of the Board shall be as directed by the Chairman of the Board.'"

Mr. Aarons swore that, after the Chairman had made this statement, the other member of the Board, Mr. White, said that he "saw no purpose would be served in interviewing any further witnesses" as "he had already made up his mind".

Mr. Aarons told his fellow Board members that he would take no further part in the proceedings of the Board, and would "not sign the papers concluding the appeal". He then left the Board room.

On 22 December 1980 the applicant received a letter from the Board's Chairman informing her that her appeal had been disallowed.

On 15 January 1981 the A.B.C. purported to confirm the provisional promotion of Mr. Cave. On 19 January 1981 Mr. Cave, who was previously employed in Brisbane, took up duties in the position which is based in Sydney. He has performed the duties of that position from that time and continues to perform them.

Appearances were filed on behalf of the first, second and third respondents, being the three members of the Board - the first and second respondents (the Chairman, Mr. Duffy and Mr. White respectively) being represented by the same solicitor and Mr. Aarons by a separate solicitor. During a directions hearing on 12 May 1981 I was informed by the solicitor for the first and second respondents that they wished to take no further part in the matter. It was on that occasion that I specially fixed the hearing for 1 July 1981. Mr. Aarons was represented during the hearing by Counsel and he supported the applicant's application. Neither the first nor second respondents offered any evidence. Certain evidence relating to the practices and procedures of the Board was given by a Mr. W. M. Kenna, the head of Personnel Services of the A.B.C., but this referred to other matters which I shall mention later.

The applicant furnished particulars to the respondents of the matters on which she proposed to rely in support of her case before this Court which I summarise as follows:-
1. That the applicant was not given the opportunity to be present, nor to be represented, during the taking of evidence;

2. The applicant was not given the opportunity to cross examine witnesses hostile to her, nor to cross examine the provisional appointee, Mr. Cave;

3. No record was taken of the proceedings;

4. No record of the proceedings was made available to the applicant; and

5. The Board failed to give any reasons for its decision.

I pause here to observe that counsel for the applicant informed me, during the course of the hearing, that the applicant did not press any of these grounds but relied upon the remaining grounds:-
6. That evidence was taken by the Board but not disclosed, or not fully disclosed, to the applicant;

7. That the Board failed to take evidence from persons specified by the applicant, and/or known to the Board, as being capable of giving evidence in support of her appeal upon material considerations raised by witnesses hostile to her. In particular, it failed to take evidence from Messrs McKinnon, Bannerman, Chilton and Kerry Weil;

8. That the Chairman of the Board ruled against taking the further evidence mentioned in 7 above, expressly relying on Regulation 11 (2) of the Australian Broadcasting Commission (Staff) Regulations; but that ruling was erroneous because:

(a) it was not a ruling on procedure, but on a substantive issue; or

(b) further, or in the alternative, regulation 11 (2) is ultra vires the Broadcasting and Television Act and is invalid; and

9. That, by reason of the foregoing, the Board failed to make "full inquiry" into the claims of the applicant as it was required to do by s.49 (4) of the Broadcasting and Television Act.

At the conclusion of the evidence before me, I raised with counsel the question whether any decision had been made by the Board determining the applicant's appeal to it, in view of the evidence of Mr. Aarons that, there being only three members of the Board of whom he was one, he left the Board before it made any decision as to the outcome of the appeal.

Counsel for the applicant then informed me that he sought to rely upon this matter as an additional ground to quash or set aside the purported decision of the Board. Counsel for Mr. Aarons raised no objection to this course. Counsel for the A.B.C. neither consented to nor opposed this course; did not seek any adjournment; and in due course the question was argued before me. I did not think it necessary to adjourn the proceedings so that notice of this question could be given to the first two respondents in view of the course they had previously adopted namely, to take no further part in the proceedings. I propose to deal with this question first.

It is necessary to refer to some of the provisions of the Broadcasting and Television Act. Division 2 of Part III is headed "The Service of the Commission". Section 43 (3) provides that the officers of the A.B.C. shall constitute "the service of the Commission". Division 2 contains detailed provisions relating to the creation, abolition and reclassification of positions in the service of the A.B.C. (ss. 45 and 46) and the transfer, promotion, retirement and reduction in status or dismissal of officers (ss. 47, 48, 48A, 51, 52, 54, 55 and 56). The Board (ss. 49 and 50) and the Disciplinary Appeal Board (ss. 57 and 58) are established.

The Board consists of a chairman, appointed by the Governor-General; and, in respect of each provisional promotion against which an appeal has been made to the Board, an officer appointed by the A.B.C., and an officer nominated by "the organisation of which it is appropriate for a person occupying the vacant position concerned to be a member": s. 50 (1) and (2). "Organisation" means an organisation registered under the Conciliation and Arbitration Act 1904: s. 50 (5).

Section 50 (4) provides:-
"Where, at any meeting of the Promotions Appeal Board, the members are divided in opinion on any question, that question shall be decided according to the decision of the majority."

Neither the Broadcasting and Television Act, nor the Regulations thereunder, (the Australian Broadcasting Commission (Staff) Regulations), provide for a quorum or for the effect of death, retirement or resignation of members of the Board.

In my opinion, for the Board to determine the outcome of an appeal to it under s. 49, all three members must be present.

Shortly before Mr. Aarons left the meeting of the Board of 22 December 1980 the Chairman stated, reading from a prepared document, that he proposed to bring the proceedings to an end. Mr. White said that he had already made up his mind. Mr. Aarons then left the meeting. Presumably some decision was taken by the two remaining members, because the A.B.C. and all applicants for the vacant position were informed that the applicant's appeal had been disallowed. In my opinion, the Board had not made any decision determining the appeal before Mr. Aarons left the meeting. The absence of Mr. Aarons before any decision was made inevitably leads to the conclusion that there was no such decision. Hence any purported decision of the remaining two members is a nullity. That alone is sufficient to result in the quashing of the decision. I should add that, although the Court has a discretion as to whether it should quash or set aside decisions or make other orders under the Judicial Review Act, having reached the conclusion that the decision of the Board was a nullity, I see no reason to conclude otherwise than that the decision should be quashed or set aside.

I turn to the submission of counsel for the applicant that the Board should have disclosed to the applicant, or disclosed more fully, the evidence adduced against her so that she could understand the case she had to meet and be in a position to rebut it.

In the evolution of the law relating to the rules of natural justice, distinctions have been drawn, sometimes sharply, between decisions of judicial, quasi-judicial ("a convenient though inexact expression": Kitto J. in Mobil Oil Australia Pty. Limited v. C. of T. (1963) 113 C.L.R. 475 at p. 501) and administrative tribunals. Courts today tend to pay less regard to the niceties of those distinctions and to approach the question on the broader footing that persons or bodies empowered by statute to make decisions affecting people in their property or person are bound, prima facie, to observe certain standards of fair play or, as they are customarily called, the rules of natural justice: Twist v. The Council of the Municipality of Randwick (1976) 136 C.L.R. 106; Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487; and R. v. Australian Broadcasting Tribunal, Ex parte Hardiman (1980) 29 A.L.R. 289.

It is impermissible to approach the question of the application of the rules of natural justice as if they required the observance of absolute standards. Whether any particular rules apply, with or without qualification, depends on the circumstances of each case. It is impossible to prescribe definitive standards of conduct for all tribunals to observe in order to meet the requisite standards of fairness. Much depends on the character of the particular Tribunal, the task it performs and the extent to which its decisions affect others.

Counsel for the A.B.C. submitted that the Board was not bound by the rules of natural justice as its decision could not adversely affect the rights, property or legitimate expectations of the applicant. He referred to a passage at p. 177 of S.A. de Smith, Judicial Review of Administrative Action, 4th ed. (1980):
"Some forms of interest have not yet been afforded any procedural protection at all in the Courts - e.g. . . . a civil servant's or soldier's interest in not being subjected to a disciplinary transfer or past over for promotion.";
and to Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175 where Lord Denning said at pp. 190 and 191:
"Then comes the problem: ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given: see the cases cited in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149, 170-171. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. The giving of reasons is one of the fundamentals of good administration."

The A.B.C. is empowered to transfer or promote officers to fill vacant positions in its service: s. 47 of the Broadcasting and Television Act. In the selection of an officer for promotion to a vacant position, consideration must be given first to the relative efficiency of the officers available for promotion and, in the event of equality of efficiency of two or more officers, then to the relative seniority of those officers: s. 48.

The promotion of an officer to a vacant position is provisional and without increased salary pending confirmation of the promotion and is subject to appeal to the Board: s. 49 (1). Any officer who considers that he should have been promoted to a vacant position in preference to the officer provisionally promoted, may appeal to the Board on the ground of superior efficiency or equal efficiency and seniority: s. 49 (2). Upon any such appeal being made the Board is bound to make
"full inquiry into the claims of the appellant and those of the officer provisionally promoted and shall determine the appeal.":
s. 49 (4). Where the appeal is upheld, the appellant shall be promoted to the vacant position and the provisional promotion shall be cancelled: s. 49 (5). Where the appeal is disallowed, or where no appeal is lodged within the prescribed time, the provisional promotion shall be confirmed: s. 49 (6).

Plainly a decision of the Board to uphold or disallow an appeal is a decision which may adversely affect the rights, person and legitimate expectations of the appellant or the officer provisionally promoted. It affects their salary, position in the A.B.C. and prospects of promotion. The rules of natural justice therefore apply to the proceedings and the decision of the Board. As to the application of the rules of natural justice to a teacher's promotion, see R. v. Teachers Tribunal; Ex parte Colvin (1974) V.R. 905 (Lush J.).

Counsel for the A.B.C. submitted, alternatively, that Regulation 11 (2) of the Australian Broadcasting Commission (Staff) Regulations operates to exclude the application of the rules of natural justice, assuming they would be otherwise applicable.

Regulation 11 provides:

"11 (1) The Chairman of the Board shall fix the time and place for meetings of the Board and shall cause notice thereof to be given to the members of the Board, to the person provisionally promoted and to the appellant or appellants.

(2) The procedure at meetings of the Board shall be as directed by the Chairman of the Board."

In my opinion, Regulation 11 is merely a machinery provision designed to ensure the orderly conduct of meetings of the Board empowering the Chairman to determine matters of procedure such as, the order of witnesses, the method of recording evidence, and the length of hearings. It says nothing as to the application or ousting of the rules of natural justice.

An officer of the A.B.C. who appeals to the Board from a decision of the A.B.C. provisionally promoting another officer to a vacant position is entitled to know the case against him, to answer it and to put his own case: Board of Education v. Rice (1911) A.C. 179 per Lord Loreburn L.C. at p. 182; Crofton Investment Trust Limited v. Greater London Rent Assessment Committee (1967) 2 Q.B. 955 especially per Lord Parker C.J. at p. 968; S. A. de Smith's Judicial Review of Administrative Action 4th Fd. p. 203; and Halsbury's Laws of England 4th Ed. Vol. I para. 76. The following passage from the opinion of the Privy Council given by Lord Denning in Kanda v. Government of the Federation of Malaya (1962) A.C. 322 at p. 337, although with reference to a different Tribunal to the Board, is nevertheless apposite:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

It does not follow that an appellant in proceedings before the Board is entitled to know the name of each person who has spoken adversely of him before the Board. Some boards of inquiry would be bound to disclose to those whose rights may be adversely affected the names of their accusers; but with a body such as the Promotions Appeal Board there are good reasons why it should not be obliged, as a matter of course, to provide an appellant with the names of people who have given evidence. Witnesses must be encouraged to be frank. Sometimes this can only be done by preserving their anonymity.

Mr. Kenna gave evidence that the A.B.C. has about four thousand permanent officers. In 1980 about 380 vacancies in permanent positions were filled and 78 appeals against promotion were determined by the Board. I readily understand that for the Board to reveal to each appellant the names of all persons who gave evidence before it, on matters touching on the comparative efficiency of its officers, could cause disharmony between officers of the A.B.C. and an absence of frankness by witnesses. But an appellant should be told by the Board as fully as possible, without necessarily revealing the identity of the persons concerned, what allegations have been made against him sufficient to enable him to know the case he has to meet. That is not to say that in some cases the names of witnesses should not be revealed to an appellant. This must depend on the circumstances of the particular case. See In re Pergamon Press Ltd. (1971) Ch. 388 per Lord Denning M.R. at p. 400.

The Board was bound to tell the applicant what allegations had been made against her, namely her alleged lack of interest and of efficiency in training junior staff, inadequate general supervision and work on the "night shift" in relation to the programme "A.M.", and the fact that she was said not to be a "general" reporter but a "specialist" reporter. It appears that a "general" reporter is one who is prepared to undertake stories "across the range of those which are applicable to those produced by public affairs radio"; and a "specialist" reporter is one who likes to "pick and choose the stories" to be undertaken.

I am not satisfied that the Board failed to bring to the applicant's attention the case she had to meet sufficiently to enable her to decide what to do about it by way of rebuttal or otherwise. Ideally the Board would have informed the applicant, in writing and before her second interview, of the allegations made against her in sufficient detail to enable her to deal with them; so that she could quietly consider them before deciding what she wanted to do. But I am not satisfied, on the evidence before me, that the applicant was unjustly treated in this regard, notwithstanding that it was only during her second interview that she was informed by the Board of the allegations made against her.

The real complaint of the applicant is that the Board should have called as witnesses before it the people named by her as being able to give evidence on disputed questions of fact going to the very heart of the issues to be determined by the Board namely, the comparative efficiency of herself and Mr. Cave. The applicant gave the names of Messrs. McKinnon, Bannerman, Bwin and Chilton and of Kerry Weil, and these people were not called by the Board.

The applicant expressed her complaint in evidence before me in these words: -

"I was not given a full chance of rebuttal because in order to have a full opportunity of rebuttal it would have been necessary to have called several people whom I had mentioned at that second interview and they would have been able to help in clearing up this area of conflict of fact . . . not a difference of opinion . . . It was on a question of fact and I was suggesting that if these people were called the Board could assess for themselves with the full opportunity to do so what were the facts . . . I have no idea of what they would say but they would be able to state what they saw of the situation . . . (in particular) whether I had left notes on the night shift for the morning producer and for the technical people in the morning . . . I gave the names of Andrew McKinnon, Mark Bannerman, Kerry Weil, Johnny Bwin and Tony Chilton. They were involved with the production of programmes, "A.M." in particular . . . ".

It seems that only Mr. Aarons put to the applicant the relevant criticisms that had been made of her, and he said in cross-examination:

"I sought to put to Mrs. Hamblin certain criticisms which I believe were material in the final process of deciding the appeal . . . "

Although the applicant does not contend that she was entitled herself to call witnesses before the Board and examine them, she contends that the Board should have called the people nominated by her to give evidence on the important questions on which the fate of the appeal depended.

In my opinion the applicant's contention is well founded. The comparative efficiency of the applicant and Mr. Cave was a critical question to be determined by the Board; indeed, the very matter which constitutes the grounds of appeal to the Board under s. 49 (2). The failure to call the very people who might have been able to give material evidence on something so fundamental was, in my opinion, a denial by the Board of the right of the applicant to have her appeal determined in accordance with the requisite standards of fairness. Not only did the applicant ask that they be called; but there was every indication that their evidence could have had a material bearing on the question of her efficiency and the outcome of the appeal. One of the members of the Board, Mr. Aarons, thought it sufficiently important to request, after the completion of the second interview with the applicant, that these people be called; but the Chairman declined to accede to this request.

Counsel for the A.B.C. submitted that there is no evidence, one way or the other, whether the Board was in fact influenced by the evidence of witnesses who had spoken adversely of the applicant and by the Chairman's ruling not to call any other witnesses. I do not regard that question as relevant. It is sufficient that the material before the Board might work to the applicant's prejudice. The Court does not enquire into the likelihood of prejudice. The risk of it is sufficient: see Dixon v. The Commonwealth of Australia a decision of the Full Bench of this Court (unreported 18 June 1981) and Kanda v. Government of Malaya (supra).

In any event, it would be unreal to conclude, even if it were relevant, that the Board was not influenced in the present case by the evidence of witnesses adverse to the applicant. Their evidence went to the critical issue of the comparative efficiency of the applicant and Mr. Cave. At least one member of the Board thought it sufficiently important to draw these matters to the attention of the applicant in her second interview. When she nominated people who could give evidence about the matters in controversy, Mr. Aarons urged the Board to call these people to give evidence; but the Chairman declined to do so, and the other member said he had already made up his mind on the matter. Soon thereafter, the Board announced its decision adverse to the applicant. Although it is theoretically possible that the Board may have made its decision uninfluenced by the evidence of witnesses adverse to the applicant I find such a conclusion unreal and contrary to commonsense.

Counsel for the applicant argued, alternatively, that it was necessary for the Board to "make full inquiry into the claims of the appellant and those of the officer provisionally promoted" (s. 49 (4)) and then determine the appeal; and that this statutory obligation imported the necessity to observe the requirements of natural justice.

The Board is charged with the statutory duty of hearing and determining an appeal by an officer of the A.B.C. who considers that he (or she) should have been promoted to a vacant position in preference to the officer provisionally promoted. If the appeal is upheld the appellant is promoted to the vacant position and the provisional promotion is cancelled. If the appeal is disallowed the provisional promotion is confirmed. Plainly the rights and legitimate expectations of an appellant may be affected by the decision of the Board.

The language of s. 49 (4), in particular the reference to the Board making "full inquiry", connotes that the Board must observe the substantial elements of natural justice: see General Medical Council v. Spackman (1943) A.C. 627 especially per Lord Wright at pp. 643 and 644; Kruger v. Pharmacy Board of South Australia (1979) 22 S.A.S.R. 339. In my opinion this contention of the applicant is well founded.

It was submitted by counsel for the applicant, again alternatively, that the decision of the Board should be set aside because its Chairman ruled against the taking of the further evidence, suggested by both the applicant and Mr. Aarons, on the ground that Regulation 11 (2) of the Australian Broadcasting Commission (Staff) Regulations empowered him to do so.

I am satisfied that, when the Chairman read out the prepared statement that he was entitled to bring the appeal to an end pursuant to Regulation 11 (2), he did so on the assumption that he could terminate the appeal whenever he wished and that it was for him, and him alone, to determine the application, if at all, of the rules of fair play. He was wrong, and by purporting to invoke his powers pursuant to Regulation 11 (2) at a critical time, when both the applicant and Mr. Aarons had sought to have the Board call further witnesses on material issues fundamental to the appeal, the Chairman acted beyond power and in a respect so material as to vitiate the proceedings. For this reason also the decision of the Board is void.

Before turning to the appropriate orders, I should say in conclusion that I see nothing in the Broadcasting and Television Act evincing an intent to exclude the established common law standards of fairness either by "express words or by necessary implication": Twist v. Randwick Municipal Council (supra) per Mason J. at p. 114.

I propose to order therefore that the decision of the Board disallowing the applicant's appeal be set aside (the Judicial Review Act, s. 16).

In my opinion, it is also appropriate to order that the Board exercise its jurisdiction by hearing and determining the applicant's appeal. It makes no difference that the Board is not a body corporate or that two of its members are appointed ad hoc to sit on a particular appeal: see Kerr v. Commissioner of Police and Crown Employees Appeal Board (1977) 2 N.S.W.L.R. 721.

The Court makes the following orders: -

1. That the decision of the Promotions Appeal Board that the appeal of the applicant to the Promotions Appeal Board pursuant to s. 49 (2) of the Broadcasting and Television Act (1942) against the provisional promotion of an officer of the Australian Broadcasting Commission, namely Peter Cave, to the position of Senior Reporter (Radio Public Affairs) position No. 830 be disallowed, be set aside;

2. That the Promotions Appeal Board exercise its jurisdiction by hearing and determining the applicant's appeal;

3. That the application is adjourned to a date to be fixed to hear evidence and argument, if any, on costs; and

4. Each party is to be at liberty to apply on two day's notice.