Inglis, W.S. v Cameron, G.A

[1990] FCA 754

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JUDGMENT NO. ... ........ .. ........ ,,	'16+/%	i
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IN THE FEDERAL COURT OF AUSTRALIA ) i .

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AUSTRALIAN CAPITAL TERRITORY	i
1 No. ACT G 56 of 1990
DISTRICT REGISTRY	1 I

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GENERAL DIVISION i I::

BETWEEN: WILLIAM STUART INGLIS

Applicant

AND: G.A. CAMERON

First Respondent

PETER FORSTER

Second Respondent

W.S. MAGEE

Third Respondent

MARK BUTZ

Fourth Respondent

CLAIRE BARAM

Fifth Respondent

MINUTE OF ORDER

costs of the motion.

RECEIVED

JUDGE MAKING ORDER :  Neaves J.

FEDERAL CdURT OF

DATE OF ORDER	21 December 1990	AUSTRALIA
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.   The motion on behalf of the first and second respondents for leave to appeal from the judgment given herein on 6 December 1990 be dismissed.

2.    The first and second respondents pay the applicant's

3.   The application herein dated 26 September 1990 be dismissed.

4.   The first and second respondents, in addition to the costs ordered to be paid by them by the order of 6 December 1990, pay the applicant's costs of and incidental to the preparation, filing and serving of the application dated 26 September 1990 and of the affidavit of Warren Leslie Donald sworn 26 September 1990 and the costs of the application for interlocutory relief heard on 28 September 1990.

5.    Otherwise, each party bear that party's own costs of the application.

Note:  Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
I
AUSTRALIAN CAPITAL TERRITORY	1
1 No. ACT G 56 of 1990
DISTRICT REGISTRY	1
GENERAL DIVISION	j

BETWEEN: WILLIAM STUART INGLIS

Applicant

AND: G.A. CAMERON

First Respondent

PETER FORSTER

Second Respondent

W.S. MAGEE

Third Respondent

MARK BUT2

Fourth Respondent

CLAIRE BARAM

Fifth Respondent

CORAM: Neaves J.

U: 21 December 1990

REASONS FOR JUDGMENT

On 6 December 1990 I delivered judgment dismissing, with appropriate orders for costs, a motion in each of two proceedings pending in this Court and numbered respectively ACT G 49 of 1990 and ACT G 56 of 1990. The motions sought orders that the substantive proceedings be dismissed pursuant to sub-s.l0(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act").

In the first of the substantive proceedings (No. ACT

G 49 of 1990), William Stuart Inglis ("the applicant") sought

an order of review under the Judicial Review Act in respect of the decision made by Norman Charles Bateson, the respondent to that proceeding, on 6 August 1990 that, pursuant to s.76W of

the Public Service Act 1922 (Cth) ( "the Public Service Act" ) ,

the applicant be retired from the Australian Public Service.

In the second of the substantive proceedings (No. ACT G 56 of 1990), the applicant sought orders of review in respect of decisions made on or about 20 September 1990 by the Assistant Director (Mr G.A. Cameron) and the Senior Assistant Director (Mr Peter Forster) of the Merit Protection and Review Agency established by the Merit Protection (Australian Government Emplovees) Act 1984 (Cth) ("the Merit Protection Act"). The respondents named in that proceeding were Mr Cameron, Mr Forster, Mr W.S. Magee, Mr Mark Butz and MS Claire Baram. The three last-named respondents were the members of a Redeployment and Retirement Appeal Committee established in

purpose of hearing and determining an appeal lodged- by the	accordance with s.23 of the Merit Protection Act for the
applicant under Division 8C of Part I11 of the Public Service Act against the giving of the notice under s.76W of that Act retiring him from the Australian Public Service. The decisions sought to be reviewed in this proceeding were:

(a) A decision made by Mr Cameron on 20 September 1990 not to investigate, or permit to be investigated by the Merit Protection and Review Agency, a grievance lodged by the applicant relating, inter alia, to a

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claim of bias in a member of an Assessment Committee set up under the inefficiency provisions of the Public Service Act, which Committee later recommended that the applicant be retired from the Australian Public Service on inefficiency grounds;

(b) A decision made by Mr Forster conveyed to the applicant on 20 September 1990 not to defer the hearing by the members of the Redeployment and Retirement Appeal Committee of the applicant's appeal against the decision to retire him from the Australian Public Service until after the determination by the Merit Protection and Review Agency of the applicant's grievance referred to in (a) above.

An interlocutory injunction was granted on 28

September 1990 restraining the members of the Redeployment and Retirement Appeal Committee from proceeding to hear and determine the applicant's appeal until the hearing and determination by the Court of the two substantive proceedings to which reference has been made.

The motions that were dismissed on 6 December 1990
sought dismissal of the substantive proceedings on the ground

that, within the meaning of sub-s.l0(2)(b)(ii) of the Judicial

Review Act, adequate provision was made by s.762 of the Public	Service Act under which the applicant was entitled to seek a
review by a Redeployment and Retirement Appeal Committee of the decision of Mr Bateson made on 6 August 1990 and the decision of Mr Cameron made on 20 September 1990.
In the course of considering whether the Court should decline to entertain the challenge to the efficacy in law of Mr Bateson's decision of 6 August 1990 that the applicant be retired from the Australian Public Service, I had occasion to consider and express some views upon the role under s.76W of the primary decision-maker, called in that section "the relevant Secretary", and, more importantly for present purposes, upon the proper role of a Redeployment and Retirement Appeal Committee in a case where an appeal is lodged under s.762 of the Public Service Act against the giving of a notice under s.76W of that Act. In the course of my reasons for judgment, I expressed the view that the legislature, by expressly providing that an appeal to a Redeployment and Retirement Appeal Committee may be taken only on the ground that the reduction in the officer's classification, or the retirement of the officer, as the case may be, "would be unreasonable", had marked out the limit of the Committee's function. I went on:

"The legislation, however, does not confer on a Redeployment and Retirement Appeal Committee a general power to consider whether or not, in all the circumstances, the officer should be reduced in classification or retired. It is not sufficient to warrant the Committee revoking a notice given under

from that reached by the Secretary. It may revoke

s.76W that it has reached a different conclusion

such a notice if, and only if, it reaches the conclusion, on the material before it, that the reduction in classification or retirement, as the case may be, "would be unreasonable". Further, the Committee's power is limited to confirming or revoking the notice given by the Secretary. The Committee may not, for example, in a case where the appeal is from the giving of a notice that the officer be retired from the Australian Public Service, direct that, in lieu of such retirement, the officer be reduced in classification. There may be other limitations upon the role of a Redeployment and Retirement Appeal Committee but that aspect of the matter need not now be considered."

I concluded that the appeal for which s.762 of the Public Service Act provides could not be said to be a full and comprehensive appeal. I further concluded that, having regard to the grounds upon which the applicant sought to challenge the legal effectiveness of the notice given to him by Mr Bateson, it could not properly be said that, in the circumstances of the applicant's case, s.762 made adequate provision, within the meaning of sub-s.l0(2)(b)(ii) of the Judicial Review Act, for the review of the decision embodied in that notice.

Later in my reasons for judgment, I said:

"For the reasons set out above, I am of opinion that the fact that the applicant has exercised the right conferred upon him by s.762 of the Public Service Act to appeal to a Redeployment and Retirement Appeal Committee against the notice given to him by Mr Bateson does not operate to preclude him from challenging the efficacy in law of Mr Bateson's

decision and is not a matter which should lead this Court to decline to exercise its jurisdiction under the Judicial Review Act, in proceeding No. ACT G 49 of 1990, to review that decision. Having reached the conclusion that the Court should entertain that	proceeding, I can see no merit in declining to	entertain the related proceeding No. ACT G 56 of
1990. "

Before the Court is a motion on notice by Mr Cameron and Mr Forster for an order that they be granted leave to appeal to a Full Court of this Court from the order made on 6 December 1990 dismissing the motion that sought an order that the proceeding No. ACT G 56 of 1990 be dismissed pursuant to sub-s.l0(2)(b)(ii) of the Judicial Review Act. Leave is required under s.24(1A) of the Federal Court of Australia Act 1976 (Cth) as the order is an interlocutory order.

Immediately prior to that motion coming on for hearing, the proceeding No. ACT G 49 of 1990 was mentioned. The Court was informed that the parties to that proceeding, by consent and without admissions, sought an order quashing the decision made by Mr Bateson on 6 August 1990 that the applicant be retired from the Australian Public Service and an order that the applicant's costs of that proceeding be paid by

MI Bateson. The Court made those orders.

Those orders having been made, there was no extant decision that the applicant be dismissed from the Australian Public Service which could be reviewed by the Redeployment and Retirement Appeal Committee constituted by Messrs Magee and Butz and MS Baram. In consequence, the applicant, through his counsel, informed the Court that he wished to withdraw the application in proceeding No. ACT G 56 of 1990 and asked that

an order be made dismissing that application. Counsel further	informed the Court that, if that order were to be made, he
would seek an appropriate order in respect of the costs of that proceeding.
Counsel for Messrs Cameron and Forster, however, informed the Court that they wished to proceed with the motion for leave to appeal from the order made on 6 December 1990. In support of the motion, counsel relied upon the two several affidavits of Thomas Michael Howe sworn respectively on 13 and 14 December 1990. The issues intended to be raised on the appeal, if leave were to be granted, are set out in paragraph 3 of the affidavit sworn on 13 December 1990 in the following terms :

"(a) whether an appeal instituted pursuant to section 762 Public Service Act 1922, being an appeal to a Redeployment and Retirement Assessment [sic] Committee established under section 22 Merit

Protection (Australian Government E ~ D ~ o v ~ ~ s ) Act

1984, confers a general power upon the Committee to consider whether or not, in all the circumstances, the officer should be retired.

(b)	whether such appeal ought to be upheld if the Committee reaches a different view as to whether, in all the circumstances, the officer should be retired.
(c)	whether a right of such appeal, provides adequate provision under which the officer is entitled to seek a review of the decision to issue him with a notice under section 76W Public Service Act 1922;
(d)	whether such appeal to a Redeployment and Retirement Assessment [sic] Committee will cure defects in the original decision-making process;
(e)	whether such appeal renders superfluous an investigation by the Merit Protection and Review Agency of a grievance (being a grievance lodged with
regulation 84 Public Service Reaulations) arising the Merit Protection and Review Agency pursuant to

out of the original decision-making process."

Paragraph 4 of M r Howe's earlier affidavit, as amended by par.2 of his later affidavit, reads:

"Questions 3(a) (b)(c) and (d) above are of critical and lasting importance to the conduct of all future appeals to Redeployment and Retirement Assessment [sic] Committees against any decision to retire or demote an officer of the Australian Public Service. Question 3(e) above is also of importance to the circumstances in which the Merit Protection and Review Agency may decline to investigate a grievance lodged with it pursuant to regulation 84 Public Service Reaulations on the ground that there is a right of appeal against the decision to which the grievance relates."

In his later affidavit, Mr Howe states, on information and belief, that 26 appeals were determined by Redeployment and Retirement Appeal Committees in the period 1 July 1988 to 30 June 1990, 15 in the first of those financial years and 11 in the second; and that each of those appeals "was conducted on the basis that the said Committee had a general power to consider whether or not the officer concerned should be reduced in classification or retired, as the case may have been, and that the Committee did not confine itself to a consideration of whether the retirement or reduction in classification of the officer would be unreasonable." In par.4 of that affidavit, W Howe expresses the following opinions :

"I am of the opinion that the judgment and the	'
will effect a fundamental change to the future	reasons therefor of the learned Mr Justice Neaves
conduct of all appeals before a Redeployment and Retirement Assessment [sic] Committee that are instituted pursuant to section 762 Public Service Act 1922. I am further of the opinion that, if the learned judge's judgment and reasoning be upheld, future applicants to a Redeployment and Retirement Assessment [sic] Committee will be afforded a significantly narrower right of appeal against a notice under section 76W Public Service Act 1922 than that which to date has been afforded to such applicants."

Two difficulties, at least, stand in the way of granting leave to Meesrs Cameron and Forster to appeal from the order made on 6 December 1990 in proceeding No. ACT G 56 of 1990.

In the first place, as the quashing, in proceeding No. ACT G 49 of 1990, of the relevant notice under s.76W of the Public Service Act has the consequence that the applicant's appeal to the Redeployment and Retirement Appeal Committee cannot proceed to a hearing and determination on the merits, any views which might be expressed by a Full Court of this Court upon the proper role of such a committee when considering an appeal under s.76Z of the Public Service Act against the giving of a notice under s.76W of that Act could only have effect in relation to appeals other than that lodged by the applicant. Such expressions of views could not affect the applicant's present situation and would thus be in the nature of an advisory opinion.

Secondly, if the Court were to make the order sought by the applicant consequent upon his indication to the Court that he does not wish to proceed further with the application in proceeding No. ACT G 56 of 1990, namely an order that that application be dismissed, there would be no basis upon which leave to appeal could be granted in respect of an interlocutory order made in the course of that application prior to its dismissal. No justification for declining to make the order sought by the applicant can be suggested other than that the Court should decline to do so for the sole purpose of preserving a right in Messrs Cameron and Forster to seek leave to appeal from the interlocutory order. In my opinion, that cannot provide an appropriate justification.

It should also be noted that, consistently with pressing their application for leave to appeal from the order made on 6 December 1990, Messrs Cameron and Forster had necessarily to oppose the making of the order proposed by the applicant, namely that the application in proceeding No. ACT G

56 of 1990 be dismissed. This, however, placed them in the

curious position of opposing the making of an order in the very terms of the order which they were seeking to obtain upon the hearing of the proposed appeal.

In my opinion, the motion seeking leave to appeal should be dismissed as should the application in proceeding No. ACT G 56 of 1990. The first and second respondents must pay the applicant's costs of the motion. I so order.

It remains to consider whether any and, if so, what

order for costs should be made in proceeding No. ACT G 56 of
1990.

Counsel for the applicant submitted that it would be appropriate for the Court to order the first and second respondents, Messrs Cameron and Forster, to pay, in addition to the costs ordered to be paid by them by the order of 6 December 1990, the applicant's costs of, and incidental to the preparation, filing and serving of the application dated 26 September 1990 and of the affidavit of Warren Leslie Donald sworn 26 September 1990 and filed in support of the application and the costs of the application for interlocutory relief heard on 28 September 1990; but that otherwise each party should bear that party's own costs. Counsel for the first and second respondents opposed the making of any order for costs in the applicant's favour in addition to the order made on 6 December 1990 on the ground that the costs had been unnecessarily incurred by the applicant. It was submitted that it would have been unnecessary for the applicant to have instituted the proceeding No. ACT G 56 of 1990 had he informed the Merit Protection and Review Agency at the time of lodging on 13 August 1990 his appeal to the Redeployment and Retirement Appeal Committee that the appeal was protective only and that he wished to have a decision made upon the grievances referred to in his solicitors' letter dated 6 July 1990 before arrangements were put in hand for the hearing of

the appeal.

The sequence of relevant events appears to have been as follows. On 6 July 1990, that is to say after the Assessment Committee had furnished its report to M r Bateson but before he had made the decision that the applicant be retired from the Australian Public Service, the solicitors for the applicant, pursuant to reg.84(1) of the Public Service Regulations, applied to the Merit Protection and Review Agency for the investigation by the Agency of the dismissal by the Secretary, A.C.T. Department of Urban Services of a number of grievances put forward by the applicant. On 6 August 1990 Mr Bateson signed the notice under s.76W of the Public Service Act. The notice was received by the applicant's solicitors on 9 August 1990. By letter dated 7 August 1990, the solicitors for the appellant had requested Mr Bateson to stay all further action pending a decision by the Merit Protection and Review Agency upon the grievances. That letter was received by Mr Bateson prior to the dispatch of the notice under s.76W of the Public Service Act to the applicant's solicitors. The applicant's appeal to the Redeployment and Retirement Appeal Committee was lodged on 13 August 1990, within the 14 days prescribed as the appeal period.

On a date not later than 24 August 1990, the solicitors for the applicant were informed that the appeal to the Redeployment and Retirement Appeal Committee would be heard on 2 October 1990. By letter dated 24 August 1990

addressed to the Merit Protection and Review Agency, the
applicant's solicitors submitted that the hearing of the

appeal should not proceed until the grievance matter had been decided. Further correspondence ensued but there was no response to the submission contained in the letter dated 24 August 1990 until 21 September 1990 when the applicant's solicitors received a letter from Mr Cameron bearing the date of the previous day conveying his decision not to investigate, or permit to be investigated by the Merit Protection and Review Agency, the grievance lodged by the applicant relating, inter alia, to a claim of bias in a member of the Assessment Committee that recommended that the applicant be retired from

the Australian Public Service. Notwithstanding further correspondence between the applicant's solicitors and the Merit Protection and Review Agency, the proposed date for hearing the applicant's appeal was not changed. The Agency confirmed that that was the position by letter dated 26 September 1990 and on the same day the proceeding No. ACT G 56 of 1990 was instituted. The application for an interlocutory injunction restraining the Redeployment and Retirement Appeal Committee from proceeding to hear and determine the applicant's appeal was made and granted on 28 September 1990. The affidavit of M r Donald sworn on 26 September 1990 was read on the hearing of the interlocutory application.

In the light of that chronology of relevant events,
it cannot properly be said that the costs incurred in

instituting the proceeding were unnecessarily incurred by the

appropriate to make the order for costs sought by counsel for	applicant. In all the circumstances, I think it is
the applicant.
I, therefore, order that the first and second respondents, in addition to the costs ordered to be paid by them by the order of 6 December 1990, pay the applicant's costs of and incidental to the preparation, filing and serving of the application dated 26 September 1990 and of the affidavit of Warren Leslie Donald sworn 26 September 1990 and the costs of the application for interlocutory relief heard on 28 September 1990. Otherwise, each party is to bear that party's own costs.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the

Honourable Justice

"

Associate

Dated: 21 December 1990

Counsel for the applicant : M r I.W. Nash

Solicitors for the applicant : Snedden Hall & Gallop

Counsel for the respondents : Mr P.A. Coppel

Solicitors for the respondents: Australian Government

Solicitor

Date of hearing	: 17 December 1990
Date of judgment	: 21 December 1990