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 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.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Hercules v Jacobs
Sign in free to access the full text
Details
AGLC
Hercules, G.R. v. Jacobs, A. & Ors [1982] FCA 136 ((1982) 60 FLR 82)
Case
[1982] FCA 136
Decision Date
CaseChat Overview and Summary
Hercules was involved in a dispute with Jacobs, which was brought before the court. The crux of the matter involved a decision made by the Telecom Disciplinary Appeal Board, which Hercules sought to challenge. The dispute centred around the fairness and procedural integrity of the board's decision-making process, specifically questioning whether the board had acted in accordance with the principles of natural justice.
The court was tasked with determining whether the Telecom Disciplinary Appeal Board had breached natural justice by considering irrelevant factors during their proceedings. Hercules argued that the board members had reviewed a Telecom file prior to the hearing, which contained allegations about Hercules' previous convictions, disciplinary breaches, and gambling habits. The central issue was whether these factors influenced the board's decision, potentially leading to a fair-minded observer suspecting that Hercules did not receive a fair hearing.
In its reasoning, the court found that the inclusion of the Telecom file, which contained extraneous and prejudicial information, did indeed taint the fairness of the proceedings. The court held that such extraneous considerations could reasonably lead a fair-minded observer to suspect that the board did not conduct a fair hearing. Consequently, the court quashed the board's decisions regarding the charges against Hercules and mandated the establishment of a new Disciplinary Appeal Board with different members to re-evaluate the appeal. Additionally, the Australian Telecommunications Commission was ordered to pay Hercules' costs associated with the proceedings.
The final orders of the court mandated the nullification of the original disciplinary decisions and required the setting up of a new board to re-examine the case. The Australian Telecommunications Commission was also directed to cover Hercules' legal costs. The court granted Hercules leave to apply for further orders if necessary, ensuring that Hercules' appeal would be heard under proper procedural standards.
Orders
Orders of the court
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;