Hercules v Jacobs

[1982] FCA 136

Re: GARRY ROBERT HERCULES
And: ALLAN JACOBS, CALVIN JAMES WHITE and SYDNEY RAYMENT (1982) 60 FLR 82
Qld G1 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Administrative Law - Judicial review of administrative decisions - review of decision of Telecom Disciplinary Appeal Board in relation to disciplinary charges - breach of natural justice - taking into account of irrelevant considerations - tribunal members provided with copy of Telecom file prior to hearing - file containing allegations of previous convictions and disciplinary breaches and of gambling habits - whether a fair-minded person might reasonably suspect that the applicant did not receive a fair hearing.

Administrative Decisions (Judicial Review) Act 1977, s.5

Telecommunications Act 1975, ss. 58, 63

Telecommunications Regulations, Reg. 27

Administrative Law - Natural justice - Irrelevant considerations - Disciplinary proceedings - Dismissal of employee - Provision of employer's file to Disciplinary Appeal Board members prior to appeal hearing - Allegations of previous convictions of applicant in file - Telecommunications Act 1975 (Cth), ss.58, 63 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 - Telecommunications Regulations, reg. 27.

HEADNOTE

The applicant had been dismissed from his employment with the Australian Telecommunications Commission after three charges against him had been proved to the satisfaction of the Commission. He appealed to the Disciplinary Appeal Board which confirmed his dismissal on two charges and imposed a fine on the third. Prior to the hearing before that Board, the Australian Telecommunications Commission furnished to the applicant and to each of the members of the Board a copy of its file relating to the charges against the applicant. The file contained some material which it was admitted ought not to have been brought to the Board's attention, including allegations of previous convictions of the applicant. The applicant sought an order of review of the Board's decision.

Held: (1) The applicant or a fairminded member of the public could quite reasonably suspect, however inaccurate the suspicion might be, that the applicant did not get a fair hearing before the Board.

R. v. Watson; Ex parte Armstrong (1976), 136 CLR 248, applied.

(2) Accordingly, the application should succeed and the decision of the Board should be quashed.

HEARING

Brisbane, 1982, May 5; July 21. #DATE 21:7:1982

APPLICATION.

The applicant sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 to quash a decision of a Disciplinary Appeal Board dismissing him from his employment with the Australian Telecommunications Commission and imposing a fine upon him.

W. D. P. Campbell, for the applicant.

R. G. Bain, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Porter Lehn & Co.

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

T. J. GINNANE

ORDER

1. The decisions of a Disciplinary Appeal Board under the Telecommunications Act, 1975 in respect of the charges (a), (b) and (c) against the applicant as set out in the amended application be and are quashed;

2. the Australian Telecommunications Commission arrange pursuant to s.63(1) of the Telecommunications Act, 1975 for the establishment of a Disciplinary Appeal Board constituted by a different Chairman and different members to hear and determine the applicant's appeal;

3. the Australian Telecommunications Commission pay the applicant's taxed costs of and incidental to these proceedings including reserved costs, if any;

4. liberty to apply. Orders accordingly.

JUDGE1

Garry Robert Hercules has applied to this Court pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of the decision of a Disciplinary Appeal Board constituted under the Telecommunications Act, 1975. He had appealed to the Disciplinary Appeal Board against his dismissal from the employment of the Australian Telecommunications Commission after three charges against him under s.58 of the Telecommunications Act had been found proven. It is convenient to adopt the following description of the improper conduct alleged, which is taken from the applicant's amended application to this Court for an order of review:

"(a) That the Applicant between the first day of December 1980 and the twelfth day of February 1981 was guilty of improper conduct as an officer in that he endeavoured to solicit the sum of $50.00 from RUSSELL KRAUTZ of Flat 1, 16 Bay Street, Pallarenda, Townsville, the subscriber to Telephone Service Townsville 74.1468 as payment for reducing by $120.00 the amount due on his telephone account.

(b) That the Applicant between the first day of December, 1980 and the twelfth day of February, 1981 was guilty of improper conduct as an officer in that he improperly reduced by $120.00 the telephone account of RUSSELL KRAUTZ of Flat 1, 16 Bay Street, Pallarenda, Townsville, the subscriber to Telephone Service Townsville 74.1468.

(c) That the Applicant between the twentysecond day of December, 1980 and the twelfth day of February, 1981 was guilty of improper conduct as an officer in that he sold the economy airline ticket issued to him under Staff By-Law 92 for the journey from Townsville to Brisbane and return to GARTH COOPER.

Particulars of the Charge:-

(i) That the airline ticket was sold contrary to Finance Accounting Instructions which appear on the Main Commission file at Folio 60.

(ii) That the airline ticket was sold contrary to verbal instruction given to the Applicant by an immediate superior officer, RICHARD STEPHEN ZEITHSCH.

(iii) That the airline ticket was sold contrary to a verbal instruction given to the Applicant by PHYLLIS ENTRIKEN."

The decision of the Disciplinary Appeal Board, and the reasons it gave, were in the following terms:
"DECISION OF THE BOARD
AS TO THE GUILT OR INNOCENCE OF THE APPELLANT

Unanimous Decision of the Board - Charges A, B and C.

Having observed the witnesses and on the whole of the evidence using the standard of proof - evidence accepted by the Board which satisfies the Board to its reasonable satisfaction - the Board accepts the evidence of the witnesses for the Australian Telecommunications Commission. That evidence establishes every element of the offences, the subject of the three charges. The Board finds the appellant guilty of the offence, the subject of each and every one of the three charges. There is an overwhelming body of evidence by those witnesses which establishes the guilt of the appellant. This must be apparent to any ordinary reasonable person who peruses the transcript with sufficient care.

Where there is a conflict of evidence between that given by the witnesses for the Australian Telecommunications Commission and that given by the appellant, the Board accepts the evidence of the witnesses for the Australian Telecommunications Commission.

DECISION OF THE BOARD AS TO PUNISHMENT

Unanimous Decision - Charges A and B.

The Board's Decision is that the appellant be dismissed from the employment of the Australian Telecommunications Commission.

The offences are of a very serious nature. In the opinion of the Board any other punishment which could lawfully be imposed would in all the circumstances be inadequate.

Unanimous Decision - Charge C

The Board's Decision is that the appellant be fined an amount of $40.00 for this offence.

The offence is of a serious nature but the Board is of the opinion that to inflict a heavier punishment than the maximum allowable fine would be excessive having regard to all the circumstances.

The decision of the authorised officer, i.e. dismissal of the appellant, having regard to Charges A and B is confirmed by this Board.

The decision of the authorised officer, i.e. dismissal of the appellant, having regard to Charge C is varied to a fine of $40.00 by the Board.

Application by the appellant for costs is refused.

No application for costs by the Australian Telecommunications Commission."

The final form of the grounds upon which the order to review is sought are as follows:
"1. Breach of the rules of natural justice:

(a) The Applicant did not receive a fair hearing before the Board because the following evidence was before it:-
(i) That the Applicant was convicted in March, 1977 in the Melbourne Magistrates Court for breach of the Lotteries and Gaming Act (Victoria);
(ii) That the Applicant had in July, 1980 repaid $209.00 being for air fares, Brisbane/Townsville availed of by a person not being an employee of Telecom;
(iii) That the Applicant had informed Mr Heywood, the investigating officer, that he gambled on horses;

(b) The Applicant did not receive a fair hearing before the Board because the Board permitted the Commission to re-open its case in order to lead rebuttal evidence of GREG MUIR, which evidence was merely confirmatory of the original case and which ought to have been produced first;

(c) The reasons given by the Board for its decisions were inadequate in that they did not disclose any findings or conclusions on material issues of fact.

2. Failure to observe procedures required by law: The Board was in breach of its common law duty or alternatively, statutory duty pursuant to sub-section 62(8) of the Telecommunications Act 1975 in failing to provide adequate reasons for its decisions.

3. Improper exercise of power:
The Board improperly exercised its power in that it took into account the following irrelevant considerations:-

(a) That the Applicant was convicted in March, 1977 in the Melbourne Magistrates Court for breach of the Lotteries and Gaming Act (Victoria);

(b) That the Applicant had in July, 1980 repaid $209.00 being for air fares, Brisbane/ Townsville availed of by a person not being an employee of Telecom;

(c) That the Applicant had informed Mr Heywood, the investigating officer, that he gambled on horses.

4. No evidence or other material to justify the making of the decision:

The Board was required by law to reach that decision only if the particulars relating to that charge were established. There was no evidence or other material (including facts of which the Board was required to take notice) from which the Board could reasonably be satisfied that the said particulars were established."

It is conceded that the applicant is a person aggrieved, that the decision of the Disciplinary Appeals Board is a decision to which the Administrative Decisions (Judicial Review) Act applies, and that natural justice was required to be observed in respect of the proceedings of the Board.

Prior to the hearing before the Disciplinary Appeals Board, the Australian Telecommunications Commission furnished a copy of its file relating to the charges against the applicant to him and to each of the members of the Board. The file contained some material which it was admitted ought not have been brought to the Board's attention. It was common ground before the Board that parts of the file were to be excluded from its consideration. Material in the file was the subject of debate both before the Board and in this Court. The proceedings before the Board, as recorded, were not entirely free from confusion. It seems that in the argument before the Board it was not consistently asserted that all of the matters referred to in the grounds upon which the order for review is sought were improperly before it. Conversely, it was sought to say here that certain matters, which it was acknowledged before the Board had to be excluded, were admissible against the applicant. Other questionable matters attracted little, if any, reference.

The principal submission made for the applicant concerning the file was that the Board, constituted as it was by members who had seen the file, should not have continued with the hearing. It was requested not to do so by Counsel who was then appearing for the applicant and the Solicitor who represented the Commission before the Board suggested that one or more of the members might feel that he should not sit. However, each member of the Board stated that he had an entirely open mind and the hearing went on over the applicant's objection. No other attempt was made by the applicant at that point to prevent the continuation of the proceedings.

No doubt there may be practical advantages in the circulation of appropriate papers prior to the commencement of a hearing. However, it is plain to the point of demonstration that generally no evidence should be placed before a tribunal by one party to a dispute in the absence and without the knowledge of all others concerned who must have an opportunity to oppose what is intended.

The gravamen of the present complaint concerns not only when the Disciplinary Appeals Board was told of the applicant's conviction but that it was told at all. The applicant's objection would exist, even if slightly diminished in force, although the offending material had been produced or referred to for the first time at the hearing. Counsel for the applicant sought to find an analogy in a reference before a jury to a matter which ought not be mentioned. I doubt whether any analogy could be found which would be really useful but note that there are some matters which may be inappropriate for mention even before a judge sitting without a jury, e.g. that a payment into court has been made.

As is apparent from the charges, the proceedings before the Board involved two quite separate matters. Charges (a) and (b) relate to activities alleged against the applicant in respect of a telephone account, and charge (c) to an alleged improper sale of an airline ticket issued to him in connection with his employment. The different matters were dealt with at the one time, apparently without objection. The one matter made clear by the brief reasons given by the Board for its decision is that the applicant's credibility was of vital importance and that the evidence of other witnesses was preferred. My mind has fluctuated considerably as to the proper outcome of this application and my decision has been much influenced by the importance of the applicant's credit-worthiness to the Board's proceedings.

The significance of the Board's expressed attitude to the applicant's evidence is not lessened by criticisms otherwise made of the reasons it gave for its decision. No doubt, tribunals such as the Board cannot be expected always to provide reasons as full and elaborate as those appropriate in a superior court. On the other hand, the Board's statement that evidence which it accepted established all elements of the offences charged, and that any reasonable person who read the transcript with sufficient care would see why, seems to fall short of an acceptable minimum standard. The absence of appropriate express findings is emphasised by the third charge. It was conceded that the Board's conclusion that every element of each charge was established cannot be sustained in respect of that charge as particularized; indeed, there is nothing whatever to support any of the particulars given. If the applicant did sell the ticket as alleged, whether or not his doing so was improper conduct depended solely on the construction of the By-law referred to in that charge.

Other matters relied on by the applicant in this Court may be touched on briefly.

A curious and perhaps unintended feature of the Board's decision was that in seeking to reduce the penalty on the third charge the Board, in practical terms, added to the penalty imposed on the applicant; whereas previously he had been dismissed, the Board not only affirmed that penalty but added a fine. The applicant also complained of the permission given by the Board to the Commission to call a further witness after the close of its case and the conclusion of the case for the applicant; it was submitted that no sufficient reason existed since the witness could have been called at the proper time in the initial case for the Commission.

Whilst any difficulties involved in the reasons for decision of the Board and the procedures adopted are not decisive, they are background to a consideration of the Board's possession of the Commission's file and its rejection of the applicant's evidence in critical respects.

Not every procedure appropriate in a superior court is applicable to a tribunal such as the Board, and by no means every deviation from the proper course, whether in respect of the erroneous rejection or admission of evidence or otherwise, will automatically lead to an order of review. Each case must be judged in the context of the particular legislation by reference to which a tribunal is constituted. However, a broad question which will often be sufficient, as in the present case, is whether the applicant or a fair-minded person might reasonably suspect that the applicant did not receive a fair hearing because the Board did not resolve the questions before it with a fair and unprejudiced mind: cf R. v. Watson; ex parte Armstrong (1976) 136 C.L.R. 248, 264. An affirmative answer to that question by no means indicates that the Board was influenced by allegations that the applicant had a conviction or gambling habits, or had previously misconducted himself concerning an air-ticket, that it did not strive to act with exemplary fairness to the applicant, or that he was in fact prejudiced.

There are various factors to be considered, none of which ought properly be singled out from the others. Regard must be had, inter alia, to the nature of the proceedings before the Board, its composition, its functions, and the course which it adopted to meet the problem which arose. Even if proof of all or any of the matters in question was legally admissible evidence, it ought not have been led because it was weightless. Although the matters were individually and collectively trivial, their potential prejudicial effect considerably exceeded any possible assistance they might afford to a determination of the appellant's guilt or innocence of the present charges. That, in my opinion, is the crux of the matter for present purposes, when seen in conjunction with the vital importance of the applicant's credibility.

Even though the proceedings before a tribunal may be characterised by informality or an absence of rules of evidence, there will frequently be more cause for concern if possibly prejudicial matters of little or no probative value are raised there than if they are raised before a superior court. But, however that may be, it is not possible to feel comfortable in the circumstances about the proceedings before the Board in the present case. The applicant or a fair-minded member of the public could quite reasonably suspect, however inaccurate the suspicion might be, that the applicant did not get a fair hearing. Accordingly, I am of the view that the application should succeed and the decision of the Board should be quashed.

The result of such an order will be that there has been no effective determination of the applicant's appeal to a Disciplinary Appeal Board constituted under the Telecommunications Act against his dismissal from the employment of the Australian Telecommunications Commission. Section 58(15) provides that such a decision does not take effect in the event of an appeal unless the appeal lapses or is withdrawn or a Disciplinary Appeals Board confirms it. The further result is that a new Disciplinary Appeal Board must be constituted, a task which is the responsibility of the Australian Telecommunications Commission by virtue of s.63(1) of the Act. Obviously, the Chairman and members of the Board whose decision has been called in question in the present proceeding are disqualified from any further involvement with the applicant's appeal.

It is not appropriate for me to make any order concerning the costs of the proceedings to date before the Disciplinary Appeal Board. The applicant's moral claim to recover the expenses which he incurred in consequence of the Board continuing with the appeal, when, as I have held, it ought have stayed its hand, is lessened by his failure to act immediately to seek an order preventing it from doing so. However that may be, there must be a further Disciplinary Appeal Board constituted, and it will be appropriate for it to deal with the question of costs of the original proceedings which led to the decision to which this application relates. There seems to be no possible basis upon which the Australian Telecommunications Commission could recover its costs of those proceedings, but Regulation 27 of the Telecommunications Regulations seems to me plainly wide enough to permit the reconstituted Disciplinary Appeal Board to recommend to the Commission that it pay the applicant's costs of the original proceedings, which are doubtless "expenses . . . incurred by the appellant in relation to the appeal".

The order of the Court is:

1. That the decisions of a Disciplinary Appeal Board under the Telecommunications Act, 1975 in respect of the charges (a), (b) and (c) against the applicant as set out in the amended application be and are quashed;

2. that the Australian Telecommunications Commission arrange pursuant to s.63(1) of the Telecommunications Act, 1975 for the establishment of a Disciplinary Appeal Board constituted by a different Chairman and different members to hear and determine the applicant's appeal;

3. That the Australian Telecommunications Commission pay the applicant's taxed costs of and incidental to these proceedings including reserved costs, if any.