Higgins, Agnes Sheila v D. Craig

Re: SHEILA AGNES HIGGINS
And: D. CRAIG; B.W. BANKS; and J. ORR and DEREK VOLKER and
WILLIAM COLE; J.C. TAYLOR and R.J. YOUNG
No. G 229 of 1983
Administrative Law
7 IR 86

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative law - judicial review - Public Service Promotion - appeal on the ground of equal efficiency and seniority - selection of Promotion Appeals Committee - whether applicant or member of public might reasonably suspect member of Committee to be unprejudiced or impartial - whether apprehension of bias reasonable - relevance of membership to professional body

Administrative Decisions (Judicial Review) Act 1977

Public Service Act 1922 s.50

Public Service Regulations 109D(1)

HEARING

SYDNEY

#DATE 5:4:1984

ORDER

1. The application is dismissed.

2. The applicant is to pay the costs of the respondents.

JUDGE1

In these proceedings the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of certain decisions made in connection with her application to be appointed to a position in the Department of Veterans' Affairs ("the Department"). The position is that of Engineer Class III in the Biomedical Engineering Section of the Concord Repatriation General Hospital. Her application was unsuccessful and she has exercised the right of appeal given to her by s.50 of the Public Service Act 1922, as amended ("the Act"), to a Promotions Appeal Committee ("the Committee").
2. The first respondents are the members of the Committee. The applicant claims to be aggrieved by a decision to appoint Mr Craig as a member of the Committee. She claims that she entertains a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question that will arise on the hearing of her appeal. The second respondent is the Permanent Head of the Department whose delegate appointed Mr Craig to the Committee. The third respondents are the members of the Public Service Board.
3. The application is based upon para. (a) of sub-s.5(1) of the Judicial Review Act which provides that an order of review of a decision may be made if a breach of the rules of natural justice occurred in connection with the making of the decision. The respondents conceded that if it were shown that there was a reasonable apprehension that Mr Craig was or might be biased, it would be a breach of the rules of natural justice to appoint him to the Committee. It was further conceded that the rules of natural justice apply to the Committee: see Finch v Goldstein (1981) 36 A.L.R. 287. The application identifies a number of decisions by which the applicant claims to be aggrieved, but it is unnecessary to refer to them all in detail. It is plain that the applicant's real complaint is the decision to include Mr Craig on the Committee.
4. The applicant is employed as a physicist at the Repatriation General Hospital at Concord. She has been so employed since 1970. From the time of her initial appointment until 1977 she was in sole charge of the Physics Department (later called the Biomedical Engineering Department) at the hospital. In July 1977 the position as head of that department was reclassified and advertised as being vacant. The applicant applied for the position but was unsuccessful. Mr Stanley Scahill was appointed to the position from outside the Public Service.
5. It is plain that the applicant does not get on with Mr Scahill. In 1978 she lodged a formal complaint with the Chief Officer of the Department that she was being victimized by him. This complaint has not as yet been determined.
6. In September 1981 the Department called for applications for the relevant position at the hospital by inserting a notification in the Commonwealth of Australia Gazette. The notification gave details of the duties attached to the position and included the following statement:

"Qualifications: Educational qualifications admitting to Grad.I.E.Aust. or other qualific ations recognised by the Board as appropriate to the efficient discharge of the duties. Substantial experience in biomedical engineering in a hospital environment and qualifications admitting to Membership of the Institute of Biomedical Engineering (Australia) are desirable."

The applicant applied for membership of the Institute of Biomedical Engineering (Australia) ("the Institute") in 1976 but her application was declined. In its letter of 11 November 1976 rejecting her application the Institute informed the applicant that after considering a recommendation from its Membership Committee, together with all relevant information, it had been decided that her experience had not been of a type which could be recognised as related to the practice of biomedical engineering. At the request of the applicant the Institute reconsidered her application but in June 1978 it informed her that her application had again been unsuccessful.
The applicant applied for the position as advertised
in the Gazette. Because she was concerned to ensure that her application would be fairly determined she instructed her solicitors to write to the Head of the Department seeking to be notified of the personnel who would form the Interviewing Committee established to interview applicants for the position. The Department initially proposed that Mr Scahill and Mr Knuckey should be members of the Interviewing Committee. The applicant objected to the inclusion of these gentlemen on the Committee. She alleged that Mr Scahill was prejudiced and biased against her and that Mr Knuckey was sympathetic to Mr Scahill's views about her. Upon being informed that these gentlemen were to sit on the Interviewing Committee the applicant applied under the Judicial Review Act for an order of review of the decision to appoint them to that Committee. This application was withdrawn pursuant to an arrangement that a fresh Interviewing Committee would be constituted, and that none of its members would be members of the Institute.
In due course the applicant appeared before an Interviewing Committee comprised of three persons, none of whom was a member of the Institute. The applicant was unsuccessful in her application and Mr. B.G.R. Williams was provisionally promoted to the position which had been advertised.
In June 1982 the applicant appealed pursuant to s.50 of the Public Service Act against the provisional promotion of Mr Williams. She also wrote to the Promotions Appeal Committee objecting to the inclusion upon it of any person who was, or had been, a member of the Institute. However, she was advised that Mr D. Craig, a Queensland officer of the Department, had been nominated as the Departmental nominee on the committee and that he was a member of the Institute. She was asked to advise the Committee of the nature of her objection to Mr Craig. She thereupon referred the Committee to the history of her objection to any member of the Institute being included on the Interviewing Committee. In due course the chairman of the Promotions Appeal Committee advised the applicant that her objection to Mr Craig had been considered and rejected. He said that the terms upon which the earlier litigation had been settled in no way constrained the class of persons to be appointed to any Promotions Appeal Committee subsequently convened. The applicant was informed that the Committee could see no reason why a reasonable person could fear that justice might not be done by Mr Craig sitting on the Committee.
In further correspondence it was alleged by the applicant's solicitors that she complained that Messrs Scahill and Knuckey had conspired to prevent her from obtaining the advertised position, that those gentlemen were members of the Institute, that the applicant had been denied membership of the Institute, and that Mr Craig was a member of the Institute and an associate of Messrs Scahill and Knuckey. However the Department declined to withdraw Mr Craig's nomination and thereupon these proceedings were commenced.
The nomination of Mr Craig as a member of the Committee was made by Mr Brian Partridge, the delegate of the Permanent Head of the Department. Regulation 109D(1) of the Public Service Regulations provides that a Committee shall be constituted by a Chairman appointed by the Public Service Board, an officer nominated by the Permanent Head of the Department in which the provisional promotion has been made, and an officer nominated by the appropriate industrial organization. Mr Partridge said that he approved the appointment of Mr Craig because he believed that he possessed the necessary experience and expertise to act as the Departmental nominee. He was aware of the earlier proceedings commenced by the applicant with respect to the composition of the Interviewing Committee and of her objection to Messrs Scahill and Knuckey sitting on that committee. Mr Partridge said that, because of Mrs Higgins' specific objection to those two gentlemen, he preferred not to appoint either of them as the Departmental nominee on the Promotions Appeal Committee. He also said that there was no biomedical engineer in the Department, other than Mr Craig, whom he regarded as having sufficient experience or expertise in the duties of the subject position to perform the role of Departmental nominee. It was not possible to appoint a nominee from outside the Public Service, as had been done with the Interviewing Committee, as the Public Service Regulations required the Department's nominee upon the Committee to be an "officer" - vide Regulation 109D(1)(b).
Mr Partridge did not regard membership of the Institute as a matter disqualifying a person from acting as the Department's nominee on the Committee. He believed that membership of the Institute was usual amongst biomedical engineers. He was aware at all relevant times that Mr Craig was a member of the Institute and that the applicant had been refused membership of it, and that she had objected to any person who was a member of the Institute being involved in the selection process. He did not know Mr Craig personally, his name having been suggested to him by the Director of Personnel. Before nominating Mr Craig he satisfied himself that he was the best available officer and that he had had no prior involvement in the original selection process. He said that it was his understanding at the time he nominated Mr Craig that all officers of the Department who were biomedical engineers were either members of the Institute or seeking membership of it. I accept Mr Partridge as a frank and honest witness.
Mr Craig is employed as an engineer in the Biomedical Engineering Section of the Department in Brisbane. He said that before being appointed to the Promotions Appeal Committee he had been informed that objection had been taken to the composition of the Interviewing Committee. In particular, he was told that objection had been taken to Messrs Scahill and Knuckey and that proceedings in the Federal Court had been settled upon the basis that no member of the Institute would be a member of the Interviewing Committee. He said that Messrs Scahill and Knuckey were known to him as engineers, senior to him, employed by the Department in Sydney and Melbourne respectively. He did not regard either of them as friends. His contact with them was generally only to exchange information about technical matters. He said he also had contact with Mr Knuckey at meetings of the Council of the Institute of which they were both members. He said he accepted nomination to the Committee because he had no doubt that he could approach Mrs Higgins' appeal without bias.
Mr Craig said that he could remember only one occasion on which he had heard Mrs Higgins' name mentioned. He did not remember exactly what was said, but he did recall a conversation in which Mr Scahill had said that he had been having staff problems and that - "I seem to have difficulty working with my physicist Mrs Higgins. I doubt that she is very competent." Mr Craig did not recall the substance or detail of the conversation, which he thought had occurred a year or two prior to 1982. He said that he did not place any importance upon Mr Scahill's comment and that he did not form any opinion whether Mr Scahill's remark about Mrs Higgins' competence was justified. He said that, at the time, Mr Scahill's statement was "irrelevant to me" and that he drew no conclusions from it. I accept Mr Craig as a reliable witness in this and other matters on which he gave evidence.
Mr Craig was not a member of the Institute at the time Mrs Higgins' application for membership of it was rejected. He became a member in 1979. He said he believed that membership of the Institute was looked upon favourably in the biomedical branch of the engineering profession. He had joined the Institute because it was a body that provided a forum for exchange of technical information amongst biomedical engineers, organized conferences and provided opportunity for discussion of technical matters with other people in his profession. He was aware that the reason given by the Institute for the rejection of the applicant's membership application was as stated in the letter of 11 November 1976 to which I have already referred.
Mr Craig joined the Institute in 1979 and was a councillor in 1982/1983. He was appointed Secretary in August 1983. Mr Knuckey is also a councillor of the Institute. Mr Craig said that he spoke to Mr Scahill about once a month on matters relating to Departmental duties, about once a year on matters relating to Institute affairs, and never on social occasions. As to Mr Knuckey, he spoke with him about once a month on Departmental duties, about four times a year on Institute affairs and never on social matters.
Mr Craig said that he had spoken twice with Mr Williams. The first occasion was at a meeting of the Committee for the purpose of hearing the applicant's appeal. The second occasion was in October 1983 at the Concord Repatriation Hospital. Mr Craig said: "The conversation consisted of saying hello to one another as we passed in the corridor." Mr Williams is not a member of the Institute.
It was put to Mr Craig that he had not been open with the other members of the Committee when he was asked about his membership of the Institute. It was said that he had disclosed only that he was a member of it, and that he had not mentioned his role as a councillor. I reject this criticism of Mr Craig's evidence. He said that he believed he had disclosed to the chairman of the Committee the fact that he was a councillor and vice-president of the Institute. It is true that in correspondence between the applicant and the Committee only the fact of Mr Craig's membership of the Institute was mentioned. However, I do not see anything sinister in this.
For the applicant to succeed in these proceedings it is necessary for her to show that in all the circumstances she or a member of the public might reasonably suspect that Mr Craig would not be unprejudiced or impartial in discharging his duties as a member of the Committee. See The Queen v Watson: ex parte Armstrong (1976) 136 C.L.R. 248 at pp.262-263, and Livesey v The N.S.W. Bar Association (1983) 47 A.L.R. 45 at p.48. Counsel for the respondents accepted that if the applicant did satisfy the court that such a suspicion might reasonably be entertained she was entitled to the relief sought. Thus the only substantial question that arises for consideration is whether the applicant has established that she or a member of the public might reasonably suspect that Mr Craig might not be an unprejudiced or impartial member of the Committee.
In considering this question it is important to bear in mind the nature of the issue that will fall to be determined by the Committee when it hears the applicant's appeal. The procedures applicable to the appeal are laid down in s.50 of the Public Service Act. In the selection of an officer for promotion under the provisions of the section consideration is to be given first to the relative efficiency, and, in the event of equality of efficiency of two or more officers, then to the relative seniority, of officers - sub-s.50(3). "Efficiency" means "special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct" - sub-s.50(4). Any promotion is provisional pending confirmation of the promotion and is subject to the right of appeal - sub-s.50(5). Provision is made for the constitution of a Promotions Appeal Committee - sub-s.50(5A), and for the purposes of the determination of an appeal a decision of a majority of the members of the Committee shall be deemed to be the determination of the Committee - sub-s.50(5AA). Any officer who considers that he is more entitled to promotion to the vacant office than the officer provisionally promoted, on the ground of superior efficiency, or equal efficiency and seniority, may appeal under the section - sub-s.50(6). I was informed from the Bar table that the applicant's appeal is based upon her contention that she has equal efficiency with Mr Williams and is senior to him. Where (as in the present case) all the parties to the appeal perform their duties in the one State, the Committee is obliged to make full enquiries into the claims of those parties and to determine the appeal - para. (a) of sub-s.50(8A).
There is no doubt that the applicant is more senior in the Public Service than Mr Williams. Hence the question for the Committee will be whether the applicant and Mr Williams are of equal efficiency.
A number of matters were relied upon to establish that the applicant had a reasonable apprehension that Mr Craig might not bring an impartial mind to the discharge of his duties as a member of the Committee. It was argued that whilst some of these matters, if looked at individually, might not be sufficient to give rise to an apprehension of bias, that was not the case when they were looked at collectively. Reliance was placed upon Mr Craig's association with Mr Scahill, who obviously thought poorly of the applicant's competence. But in my opinion the evidence establishes that the association between Messrs Scahill and Craig has at all times been of a professional kind. The mere fact that Mr Scahill made a passing reference of a disparaging kind about the applicant's competence in a conversation with Mr Craig some year or so before he was nominated as a member of the Committee could not lead any reasonable person to believe that Mr Craig would not carry out his responsibilities with complete impartiality.
It was argued that in determining whether the applicant entertained a reasonable apprehension that Mr Craig might not be impartial it was proper to look at the matter as it would appear to the applicant. It was said that she believed that Mr Scahill thought poorly of her, that because of the delay in dealing with her complaint against Mr Scahill the Department was reluctant to investigate it, and that in nominating Craig to the Committee the Department had done an "about face" in the light of the settlement of the earlier proceedings in this court. But I fail to see how the applicant or any reasonable person could regard those matters as giving rise to an apprehension that Mr Craig might not be impartial. There is no basis for identifying Mr Craig with Mr Scahill or the Department.
Counsel for the applicant argued that, since the Department knew of the applicant's opposition to any member of the Institute being involved in the selection process, and of her opposition to Mr Craig in particular, it must have appreciated that she would regard its persistence in appointing Mr Craig as manifesting its intention of ensuring that its nominee on the Committee would not be favourably disposed towards her. But the question to be decided is whether the applicant has a reasonable apprehension that Mr Craig might not act impartially as a member of the Committee. It is not to the point that the applicant may feel that the Department ought to have nominated some other person. What she must establish is that she has a reasonable apprehension that Mr Craig is or might be biased against her.

Reliance was also placed upon the fact that Mr Partridge was not given a short list of possible nominees, and that only Mr Craig's name was suggested to him. It was argued that this circumstance could reasonably lead the applicant to suspect that Mr Craig may not have been nominated on his merits, but at the instigation of Mr Scahill and because he was believed to be sympathetic to Mr Scahill's views. There is no substance in this argument.
Particular reliance was placed upon the fact that Mr Craig was a member of the Institute. The applicant argued that the rejection of her application in 1976 and 1978 for membership of the Institute placed Mr Craig in an invidious position as he was now not only a member but also the Secretary of it. It was submitted that the rejection of her membership application meant that the Institute did not regard her experience as being the type required of a biomedical engineer. It was further submitted that it was likely that Mr Scahill would be called as a witness before the Committee, that he was a member of the Institute, and that therefore Mr Craig might be seen as likely to favour views expressed by another Institute member. It was also said that Mr Craig might be called upon to consider what weight should be attached to the fact that the applicant had not been accepted as a member of the Institute.
When considering these arguments it is necessary to keep in mind that the question for the Committee will be whether the applicant is equally as efficient as Mr Williams. In deciding that question the Committee will not have to make a choice between one person who is a member of the Institute and another who is not. Neither Mr Williams nor the applicant is a member. In these circumstances I do not think that the fact that Mr Craig is the Secretary of the Institute would lead a reasonable person to fear that he might not bring an impartial and unprejudiced mind to the Committee's deliberations.
Further, I do not think that the rejection of Mrs Higgins' application for membership some years before Mr Craig himself became a member of the Institute could give rise to a reasonable apprehension of bias on his part. It is plain that the applicant resents the rejection of her application for membership. But it would not be correct to treat her feeling of resentment as giving rise to a reasonable apprehension that Mr Craig might be biased against her. Neither Mr Craig nor the Institute has, at any time, passed any opinion upon the applicant's suitability for the position which she seeks or upon the question whether she is as efficient as Mr Williams.
As to the contention that Mr Craig might regard the rejection of her membership application as reflecting adversely on the applicant it is relevant to refer to the following passage in his evidence:

"Do you think that the fact that Mrs Higgins had applied for membership of the institute and been rejected demonstrated that in a competition with Mr Williams for the relevant job, she ought not for that reason alone to be preferred to him?---I do not believe the fact that she was rejected is particularly relevant. It was in 1976, I believe, which is eight years ago, when she first applied. She was rejected, as I understand it, from the documentation that I have seen, on the grounds of inadequate experience of the right type. I do not know whether she has since obtained adequate experience of the right type or whether she would be admitted if she reapplied. Also at that time there was only one grade of membership of the institution, which was full member, which required educational qualifications plus relevant experience. Since that time there has been a grade of associate member established, whereby people with the correct educational qualifications but without adequate experience can be admitted as associate members and then progress to full membership when they obtain adequate relevant experience, so that I do not know the circumstances of her rejection in detail, and the situation in the institution has changed somewhat since then. If she applied now, she may well be admitted. Mr Williams has never applied, and therefore, never been tested in that way, but it is unlikely that Mr Williams would be admitted as a full member at the moment either."

(Transcript pp.42-43)

Counsel for the applicant submitted that she was not privy to Mr Craig's private opinions and that what the court must do is to, as he put it, "aggregate all that is in her mind and determine whether she would entertain a reasonable suspicion." I accept that this is the correct approach. She is not required to assume, as I think would be the case, that Mr Craig would approach her case with complete impartiality. Neither the applicant nor a member of the public can be presumed to know the character or ability of Mr Craig or the other members of the Committee - see Hannam v Bradford Corporation (1970) 1 W.L.R. 937 at p. 949 per Widgery C.J. and R v Liverpool City Justices (1983) 1 All E.R. 490 at p. 494 per Ackner L.J. But what the applicant has in her mind and her subjective opinions about Mr Craig cannot found a reasonable suspicion unless they are in turn based upon a reasonable assessment of all the information available to her. I do not think that a reasonable person would believe that Mr Craig's association with a professional body which, before he joined it, had declined to admit the applicant gave rise to a reasonable apprehension that he might not be an unprejudiced member of a committee whose duty it is to assess the relative efficiency of the applicant and Mr Williams, neither of whom is a member of that professional body. The mere fact that Mr Craig knew of the reason given by the Institute for refusing to admit the applicant to membership does not mean his mind was prejudiced against her or could reasonably be thought to be prejudiced against her. As the High Court said in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at p 554, an unprejudiced mind "is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it." Of course the subject matter of the appeal under the Public Service Act is the applicant's comparative efficiency with Mr Williams. The rejection of her application for membership of the Institute, if relevant at all to the appeal, will be very much on the periphery of the Committee's considerations. In these circumstances the dictum of the High Court in the Angliss Case (supra) applies a fortiori to the present case.
In my opinion it is not to the point that the Department agreed, as a term of settlement of the earlier Federal Court proceedings, not to nominate a member of the Institute to the Interviewing Committee. There were some six applicants for the position at the hospital and, for all the evidence discloses, some of the applicants may have been members of the Institute. Moreover, there was no statutory necessity for an officer of the Department to be on the Interviewing Committee whereas the contrary is the case in respect of the Promotions Appeal Committee. Apparently the Department was prepared to bow to the applicant's request not to nominate a member of the Institute to the Interviewing Committee so as to avoid the necessity of contesting the earlier Federal Court proceedings. However, the Department's attitude cannot be taken as an admission that membership of the Institute would of itself create a reasonable apprehension of bias on the part of a member who might subsequently be appointed to a Promotions Appeal Committee.
I do not think that a reasonable person would cavil at Mr Partridge's nomination of Mr Craig or the reasons which actuated him in making the nomination.
The matters relied upon by the applicant, whether regarded individually or collectively, do not persuade me that a reasonable person would suspect that Mr Craig might not be an unprejudiced member of the Committee. In my opinion it would not be a breach of the rules of natural justice for him to sit as a member of the Committee hearing the applicant's appeal. As was said by the High Court in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 547 at pp 553-554, the requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before a tribunal or in the minds of the public that the tribunal or a member of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. The evidence in this case does not establish any such suspicion.
For these reasons the application must be dismissed with costs.

[1984] FCA 81

05 APRIL 1984