Higgins, Agnes Sheila v D. Craig - [1984] FCA 81

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…

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.

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Details

Case: [1984] FCA 81
Decision Date: 05 APRIL 1984

CaseChat Overview and Summary

Agnes Sheila Higgins sought judicial review of a decision by D. Craig, which was a decision to reject her appeal against the non-promotion of her within the public service. The Federal Court was required to determine whether the applicant, or a member of the public, might reasonably suspect a member of the Promotion Appeals Committee to be unprejudiced or impartial, and whether any apprehension of bias was reasonable. Additionally, the Court was required to determine the relevance of the Committee member's membership to a professional body.

The Court found that there was no reasonable apprehension of bias in the composition of the Promotion Appeals Committee. The Court held that the mere fact that one of the members of the Committee was a member of a professional body with which the applicant was affiliated was not enough to raise a reasonable apprehension of bias. The Court further held that the applicant had not demonstrated that the member's membership was relevant to the issues before the Committee.

The application for judicial review was dismissed. The Court ordered that the applicant pay the costs of the respondents.

Orders

Orders of the court

1. The application is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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