Jarman v SA Metropolitan Fire Service - [2006] SADC 6

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE ACT 1936
JARMAN & ORS v SA METROPOLITAN FIRE SERVICE
Judgment of His Honour Judge Clayton, Assessor Schmerl and Assessor Vander-Jeugd
9 February 2006
ADMINISTRATIVE LAW
In 2003 the South Australian Metropolitan Fire Service invited applications from firemen to be promoted to the position of station officer - 107 firemen applied - a process involving Theory, Practical and Interview components was conducted and an order of merit arrived at - 38 applicants were nominated - the unsuccessful applicants appealed - a further 32 applicants were nominated subsequently - the appellants argued that the Court should find that the promotion process was flawed, all nominations should be revoked and the matter remitted to the SAMFS pursuant to s42E of the District Court Act with directions to conduct a fresh promotion process - the SAMFS and successful nominees defended the process and argued that the powers of the Court were confined by s40A of the South Australian Metropolitan Fire Service Act so that there was no power to remit.
HELD:
(1) s40A of the SAMFS Act and s42F of the District Court Act are complimentary and the Court does have power to remit.
(2) The appellants did not establish that there was cogent reason to set aside all nominations - in fact, to do so would not be in accordance with the requirement to act in accordance with equity, good conscience and the substantive merits of the case.
(3) The appellants must now pursue their individual appeals against individual nominees.
South Australian Metropolitan Fire Service Act 1936 s40A, s40B; District Court Act 1991 s42B, s42D, s42E and s42F; Fire and Energy Services Act 2005 s29, referred to.
Associated Minerals Consolidated Ltd v Wyong Shire Council (1975) AC 538; Blackpool Corporation v Starr Estate Co (1922) 1 AC 27; Mayberry v Plowman (1913) 16 CLR 468 at 473-5, discussed.

JARMAN & ORS v SA METROPOLITAN FIRE SERVICE
[2006] SADC 6

The court is asked to determine a preliminary point which is relevant to a number of appeals. The point is whether the process adopted by the South Australian Metropolitan Fire Service in 2003 to nominate a number of firemen for promotion to the position of station officer was so unfair procedurally that the court should refuse to confirm all of the nominations which are subject to appeal and remit those nominations to the South Australian Metropolitan Fire Service with a direction to conduct a fresh promotion process.
There are two fundamental issues. First, does the District Court have power to make the orders which the appellants seek? Secondly, have the appellants established flaws in the promotion process which would justify those orders?
Background
In 2003 the South Australian Metropolitan Fire Service wished to promote a number of senior firefighters to the rank of Station Officer. A promotion process was announced and more than 107 senior firefighters applied for promotion. A process, which comprised three components, was conducted and at the end of 2003 thirty-eight senior firefighters were nominated for promotion. Subsequently, other senior firefighters have been nominated and the total number of senior firefighters who have now been nominated for promotion out of the initial applicants is seventy.
Following the initial thirty-eight nominations, the unsuccessful applicants appealed. A further two candidates were nominated for promotion on 15 March 2004. There was no appeal against those nominations. A further eight nominations were made on 11 August 2004 and there was no appeal from those nominations. However, twelve nominations, which were made on 31 December 2004, precipitated a second batch of appeals. Finally, a further ten nominations were made on 17 November 2005. There were no appeals from those nominations.
All of the nominations for promotion were made in accordance with an order of merit arrived at by the 2003 Station Officer Promotion Process.
The consideration of the appeals has been a dynamic process in that events which have occurred since the first appeals were lodged and since the court first heard argument on another preliminary point have resulted in some appeals being discontinued and there has been a change in the issues raised by the appeals.
In order to put the matter into perspective it is necessary to have regard to its history. The court is now required to determine the appeals by applicants who were ranked 71 and below in the order of merit. The first group of appeals challenges each of the first thirty-eight nominations. The second group of appeals, by some of the same appellants, challenges the nomination of each of the candidates ranked 49 to 60 inclusive in the order of merit.
As a consequence of the fact that no appeals were lodged within fourteen days against the nominations of candidates ranked 39 to 48 inclusive and 61 to 70 inclusive in the order or merit, those nominations can be confirmed. The initial notices of appeal attached a schedule of names which included all of the applicants for promotion including the appellants themselves, but those notices of appeal were lodged before the nominations of number 39 and 40 on the order of merit on 15 March 2004. Counsel for the appellants did not argue that there was a valid appeal against the nominations of the persons ranked 39 and 40 on 15 March 2004, the persons ranked 41 to 48 on 11 August 2004 and the persons ranked 61 to 70 on 17 November 2005. If that had become an issue we would have ruled that any appeal lodged before the nomination of an applicant for promotion to the rank of station officer had been made was procedurally defective.
In August and September 2005 the court heard submissions on behalf of fourteen appellants who were known as Group 1. They argued as a preliminary point that the promotion process was unfair and that the first thirty-eight nominations should be set aside. Group 1 were all persons who had received a pass in the theory component of the examination. Not all of the first thirty-eight in the order of merit had passed the theory exam.
The present hearing was concerned with another preliminary point said to be relevant to all of the remaining appeals. It was argued that if the court accepts the argument of the appellants on the merits, the court should refuse to confirm the nominations which are subject to appeal and remit those nominations to the Corporation pursuant to the provisions of section 42F of the District Court Act 1991. The submission raises the question of whether the court has power to make such an order and raises the merit of the preliminary points argued by the appellants. It also raises the question of whether the order which is sought would be appropriate in the circumstances.
The preliminary point argued by the fourteen Group 1 appellants in August 2005 has ceased to be of consequence. Those applicants who were initially unsuccessful, but have been subsequently nominated for promotion (persons ranked 39 to 70 in the order of merit), have now withdrawn their appeals.
Following the hearing in August 2005 the court reserved judgment. After considering the arguments which were put it became obvious that the persons whose nominations are challenged had not been heard. The Act makes no provision for that and it is left to the Corporation to represent their interests. Accordingly, the court reconvened for the purpose of providing the persons whose nominations had been appealed against an opportunity to be heard. Before that hearing took place the appeals by candidates ranked 39 to 70 in the order of merit were discontinued. The court must now determine appeals by persons ranked 71 and below in the order of merit.
The legislation
The appointment of officers and employees of the South Australian Metropolitan Fire Service is provided for by Part 5 of the South Australian Metropolitan Fire Service Act 1936. The procedures in relation to appointments are set out in section 40A which provides that where the Corporation wishes to appoint a person to a position in the fire service it shall first nominate that person for appointment. The Corporation is then required to give notice of the nomination to all officers and firefighters who are of the same rank as, or of a lower rank than, that of the position to which the Corporation wishes to make the appointment. An officer or firefighter who is entitled to notice of the nomination may, within fourteen days after notice is given to him, appeal to the District Court against the nomination. Section 40A provides that the Corporation can only confirm a nomination if no appeal against the nomination has been instituted. Subsections (5), (6) and (7) of section 40A provide:
(5)The District Court may, on hearing an appeal under this section, confirm the appointment of the person nominated by the Corporation or may direct the Corporation to revoke the nomination and appoint the appellant to that position.
(6)When making a decision under subsection (5), the District Court shall have regard to the criteria (if any) relating to the appointment and promotion of employees that is, contained in an award or industrial agreement that applies in relation to the position to which the appointment is to be made but, if no such criteria exists, the Court shall have regard to the qualifications, aptitude and conduct of the person nominated for the position and of the appellant or appellants.
(7)The Corporation shall comply with a direction given by the District Court under this section.
Other provisions deal with representation of parties, costs and the participation of assessors.
The appeal, pursuant to section 40A of the South Australian Metropolitan Fire Service Act 1936, lies to the Administrative and Disciplinary Division of the District Court. Subdivision 2 of Part 6 of the District Court Act 1991 deals with such appeals. Section 42B of the District Court Act 1991 states that the Subdivision applies in relation to the appellate jurisdiction conferred on the District Court by another Act (“the special Act”) “subject to the provisions of the special Act”. In this case the “special Act” is the South Australian Metropolitan Fire Service Act 1936.
Subsection 42D(1) of the District Court Act provides that the making of an appeal against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. However, as we have mentioned the Corporation is prevented from confirming a nomination if there is an appeal.
Section 42E(1) of the District Court Act 1991 requires the court to examine the decision of the original decision maker on the evidence or material before the original decision maker, although the court may allow further evidence or material to be presented to it. Subsection (2) directs that the court is not bound by the rules of evidence but may inform itself as it thinks fit and directs that the court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Subsection (3) requires the court on an appeal to give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.
Section 42F of the District Court Act 1991 enables the court to affirm the decision appealed against, rescind the decision and substitute a decision that the court considers appropriate or to remit the matter to the original decision maker for consideration or further consideration in accordance with any directions or recommendations of the court. It is to be noted that the powers of the court pursuant to section 40A of the South Australian Metropolitan Fire Service Act 1936 are different from those in section 42F of the District Court Act 1991 in that section 40A of the South Australian Metropolitan Fire Service Act 1936 does not enable the court to remit the matter to the Corporation for further consideration in accordance with the directions or recommendations of the court. The appellants seek orders pursuant to section 42F of the District Court Act 1991.
It was argued by the Corporation, as a matter of statutory interpretation, that the provisions of section 42F of the District Court Act 1991 do not apply to appeals from the Corporation so that the court can only confirm an appointment or direct the Corporation to revoke a nomination and appoint a nominee to the position pursuant to section 40A of the South Australian Metropolitan Fire Service Act 1936, but the court cannot remit the matter to the decision maker for further consideration in accordance with the directions or recommendations of the court.
A consequence of the legislation is that a nominee who was displaced by a successful appellant would not return to the promotion process, but would be excluded from competing against the other nominees and other appellants. If a successful appellant were to displace one of the nominees, the appointment of the successful appellant would not be subject to an appeal in the way that the initial nominees are, but a nominee who was not confirmed would be removed from the process even though that nominee may have more merit than other nominees or appellants who remained in the process.
The appellants in Group 1 had one common ground of appeal. Their case was that after they had passed the Theory test and had been advised that they only needed a pass in the Practical test and the Interview in order to be nominated, the Corporation introduced different criteria which allowed persons who had failed the Theory test to be reinstated into the promotion process. Their argument was that the Group 1 applicants were prejudiced because the Corporation changed the rules after the selection process had begun.
The facts
There is no contest as to the underlying facts. On 30 June 2003 the Corporation advertised Station Officer positions. It was estimated that there would be 30 vacant positions.
Concurrently the Corporation was negotiating with the United Firefighters Union of South Australia Inc to vary the South Australia Metropolitan Fire Service (Federal) Enterprise Agreement 2002 to introduce the provisions in a Service Administrative Procedure Number 40 (“SAP40”) which was to be read with SAMFS Policy No 50. SAP40 contains quite detailed promotion procedures. Appendix A of SAP40 sets out the promotion process for Station Officers.
The Chief Officer signed SAMFS No 50 on 30 June 2003. The introduction says that the policy replaces all previous South Australian Metropolitan Fire Service Promotion and Selection Policies and that the policy had been developed in consultation with the union. The policy applies to all promotion processes for full-time uniformed ranks. The policy states in part that all promotion processes for full-time uniformed ranks must be administered according to SAP40, must be adequately resourced by the Chief Officer, must be conducted in a valid, reliable, fair, equitable and transparent manner and that the promotion processes must be merit-based. The principles said to underly the policy include the statement that promotion recommendations and decisions would be based on a proper assessment of merit, that all employees would be treated consistently and equitably, that no unlawful or unjustifiable discrimination would occur, diversity would be managed and fair grievance processes would exist to deal with complaints concerning the application of the promotion processes.
By a Memorandum to All Stations dated 14 July 2003 the Chief Officer advised that the Promotions Committee had met to begin management of the 2003 Station Officer promotion process. He advised that the committee would have a hands-on role during the development and administration of the process and would ensure that the process was conducted in accordance with SAMFS No 50 and SAP40. The Chief Officer advised that the 2003 Station Officer Promotions Process would be based on a revised Station Officer Position Information Document and that the process would consist of three examination stages, namely, a Theory Examination, a Practical Examination, and an Interview.
Union members did not ratify SAP40 and SAMFS No 50 until a meeting on 1 August 2003. On 12 August 2003 application was made to the Australian Industrial Relations Commission to vary the South Australia Metropolitan Fire Service (Federal) Enterprise Agreement 2002 to give effect to SAP40 and SAMFS No 50.
On 5 September 2003 the Promotions Committee decided that there would be no designated pass mark for the 2003 Station Officer Promotion Process Theory examination and that all candidates who sat the Theory examination would be invited to the 2003 Station Officer Promotion Process Practical examination.
Two Theory examinations were conducted on 9 September 2003, one was for firemen on day shift and the other for firemen on nightshift. As the candidates entered the examination room they were advised there would be no pass mark for the Theory examination. Then, by a letter dated 9 September 2003, all candidates were advised of the decision of the Promotions Committee that there was no designated pass mark for the Theory examination and that all candidates who sat the Theory examination would be invited to take the Practical examination which was scheduled to take place between 13 October 2003 and 21 November 2003. The letter also advised that the Promotions Committee had determined in accordance with SAP40 that the weighting for each promotion process stage would be Theory 25%, Practical 45% and Interview 30%.
On 18 September 2003 the candidates were advised of the nature of the Practical test and that it would not have a pass mark, but would be assessed by order of merit.
On 3 October 2003 the South Australia Metropolitan Fire Service distributed a four-page letter to the applicants which provided further information regarding the Practical assessment, Interview and marking process. The letter confirmed that there was no designated pass mark and no critical component for the interviews and that there was no designated pass mark and no critical component for the Practical assessment. The letter explained the method for marking each of the assessments and confirmed that the Theory assessment accounted for 25%, the Practical assessment for 45% and the Interview 30%. The letter explained the way in which the marks were to be collated and that the total mark would be used to place the candidates in the order of merit. The process which was described did not make a pass in any of the three components compulsory, but contemplated a ranking of candidates based upon the overall mark. That approach is the one which was ultimately adopted, but there were other changes along the way before the final approach was adopted.
On 8 October 2003 a meeting was held between the Chief Officer and the union. Mr Harrison, who represented the union at the meeting, told the Chief Officer that unless a pass mark was applied to the theory component as well as the other two stages, the union would not support SAP40 being certified before the Australian Industrial Relations Commission. Following the meeting with Mr Harrison, the Chief Officer and Mr Sedunary met with Mr Stevens and the Chief Officer decided to apply a pass mark in accordance with the union demand (Exhibit R4, statement of Mr Sedunary dated 22 August 2005).

On 10 October 2003 the Corporation distributed two memoranda to the candidates. One from the Chief Officer advised that the Chief Officer had directed the Promotions Committee to ensure the 2003 Station Officer Promotion Process complied with SAP40. The other memorandum from Mr R L Sedunary, the Acting Chairman of the Promotions Committee, was addressed “To All Candidates”. While the document bears the typed date “19 September 2003” the copy introduced into evidence has a handwritten notation “not correct date 10 October”. We have assumed that 10 October 2003 is the correct date. The letter states:
To All Candidates
2003 Station Officer Promotion Process
The Chief Officer has directed the Promotions Committee to ensure the 2003 Station Officer Promotion Process complies with SAP No. 40 “Promotion Procedures” (30/6/03).
The outcome of this direction is as follows.
(a)     The letter to candidates dated 9 September 2003 is rescinded in its entirety.
(b)     The letter to candidates dated 3 October 2003 is rescinded in its entirety.
The interview syllabus...
1.     2003 Station Officer Promotion Theory Assessment
In line with SAP No. 40, section 5.2 - Designated Pass Marks, there will be a pass mark for the 2003 Station Officer Promotion Theory Assessment.
Candidate Elimination will apply in accordance with SAP No. 40, section 5.4.2 - Candidate Elimination.
Candidates will be advised of their theory assessment results as soon as possible.
2.     2003 Station Officer Promotion Practical Assessment
Practical assessment dates… have been deferred…
In line with SAP No. 40, section 5.2 - Designated Pass Marks, there will be a pass mark for the 2003 Station Officer Promotion Practical Assessment.
In line with SAP No. 40, section 5.1.4, a critical component will apply.
In line with SAP No. 40, section 5.1.5, a critical component will apply.
Candidate Elimination will apply in accordance with SAP No. 40, section 5.4 - Candidate Elimination.
..…
5.     2003 Station Officer Promotion Interview Assessment
In line SAP No. 40, section 5.2 - Designated Pass Marks, there will be a pass mark for the 2003 Station Officer Promotion Interview Assessment.
Candidate Elimination will apply in accordance with SAP No. 40, section 5.4 - Candidate Elimination.
Further information regarding a critical component of the 2003 Station Officer Promotion Interview Assessment will be provided in the near future… (Emphasis added)
The document discussed the marking procedure, repeated that the Theory assessment would account for 25% of the process, the Practical assessment for 45% of the process and the Interview assessment for 30% of the process and advised that “Candidates (those not eliminated per SAP No. 40, section 5.4) would carry over all marks from each assessment stage to the next”. Candidates were advised that the total mark would be used to place the candidates in the order of merit.
The provisions of SAP40 to which reference was made by Mr Sedunary provide:
5.1.4A critical component of assessment will be identified to candidates as the critical and will be distinguished from non-critical component of assessment.
5.1.5A critical component of assessment must be answered satisfactorily for a candidate to progress to the next stage of the promotion process.
....
5.2Where a designated pass mark is assigned to an assessment tool, that pass mark will represent the minimum acceptable performance standard as determined by the panel of job experts (and/or other experts) from the position being assessed.
....
5.4.1Candidates will be eliminated from the promotion process if they do not score a mark equal to or higher than that which is deemed a satisfactory mark for each critical component in each promotional assessment stage
5.4.2Candidates will be eliminated from the promotion process if they do not score a mark equal to or higher than the designated pass mark for a particular promotional assessment stage.
A union newsletter dated 10 October 2003 revealed that the Chief Officer had decided to intervene in the Station Officer Promotion Process as a result of non-compliance with sections of SAP40. The document stated:
In essence the Chief Officer has acknowledged that by not abiding by SAP 40 and assigning a pass mark for the 2003 Station Officer Promotion Theory Assessment that such departure has the potential to create dissension amongst candidates and dissatisfaction with the Station Officer Promotion Process.
The newsletter said that the union wanted to analyse any departure from the process set out in SAP40 to form an opinion on merit and “it would seem that any problems that were to present themselves at a later stage in the process have been averted due to the Chief Officer’s decision to rectify any deviation from the process set out in SAP40 at an early stage”.
On 29 October 2003 the Acting Secretary of the union published a further newsletter which stated:
The Station Officer Promotion Process continues to dominate discussions in the workplace and around the Union Office. It is our view that the process was commenced without a clear understanding of how the process would work, and there was insufficient communication with the UFU and how members regarding the conduct of the process.
…
Thanks to some quick thinking, fancy footwork and exhausting negotiations with the SAMFS management by our industrial Officer, Phil Harrison, an agreement with the Corporation has been secured.
The key points of the agreement are:-
·      All candidates are to be invited back into the promotion process.
·      There is no disadvantage to those people who achieved a pass mark in the recent theory examination.
·      The practical and the interview will be subject to a pass/fail and will include a critical component.
Ostensibly, everyone is back into the process and the agreement balances the concerns of all invited and the union has responded to the memberships concerns.
There is no evidence as to what had happened within the union between 10 October 2003 and 29 October 2003.
On 5 November 2003 all candidates received a memorandum from the Corporation which reminded them that in September 2003 the Chief Officer had directed the Promotions Committee to determine a designated pass mark for the 2003 Station Officer Promotion Process Assessment, that the pass mark was determined to be 65.4639% and that those candidates who were deemed successful in the Theory Assessment would progress onto the Practical Assessment and then possibly to the Interview stage. Importantly, the memorandum stated that candidates in that group who successfully completed all three assessments would be the first nominated to Station Officer in order of merit.
The memorandum also advised that a number of candidates were deemed to be unsuccessful in the Theory assessment and had been advised that they would progress no further in the process as specified by SAP40. The memorandum noted that SAMFS was aware that the unsuccessful candidates would be disappointed and advised that SAMFS was acting on advice from Mr Stevens who believed that it was necessary to have a pass mark in the Theory assessment to reflect the true intention of SAP40, section 5.2. The memorandum confirmed:
To address future organisational needs, the Chief Officer has now given direction to the Promotion Committee, in accordance with SAP No. 40, section 3, to conduct a supplementary process by which more successful candidates can be identified.
In order to satisfy the requirements of section 5.4 of SAP No. 40, it has been decided to allow those candidates who were unsuccessful in the Theory Assessment conducted on 9 September 2003 to contest a supplementary process. The details of this process are attached.
At the completion of the supplementary process, those candidates who have successfully completed all the assessments will be placed in a separate order of merit in accordance with section 8.1 of SAP No. 40.
Candidates who successfully complete the supplementary process will only be nominated to Station Officer when the list containing the order of merit of those candidates who successfully completed all the assessments first-time is exhausted.
A memorandum to all candidates from the Chief Officer which bears the date 3 November 2003 (but which appears to have been prepared after the memorandum received by the candidates on 5 November) expressed concern that the number of successful candidates remaining in the process would not be sufficient to meet operational requirements. The memorandum advised that in order to ensure that there would be sufficient candidates to meet the anticipated requirements, SAMFS was developing a supplementary process. The memorandum said “it is the SAMFS intention that no candidates will be disadvantaged by the supplementary process”. Those candidates who had sat for the Theory assessment were advised to continue preparing for the Practical assessment.
The supplementary process which was referred to in the memorandum of 3 November 2003 contemplated a separate batch of promotions. It did not apply to the Group 1 candidates who had passed the Theory examination and were to stand ahead of the candidates who could participate in the supplementary process. The introduction of the supplementary process indicated to Group 1 that they were no longer competing against candidates who had failed the Theory examination, because those candidates would only be nominated when the list of candidates who had successfully completed all the assessments had been exhausted.
On 10 November 2003 Mr Sedunary wrote advising the candidates of the time of their individual interviews. He also advised that there would be a critical component question which would be pass/fail.
On 20 November 2003 there was a special general meeting of the union at which a resolution was carried that pass marks imposed over the three stages of the promotion process be retracted. On the following day the Secretary of the union wrote to the Chief Officer. It could be inferred that the union wished to revisit the criteria for nomination and abolish the requirement for pass marks. The letter stated that mistakes had been made. The request to abolish pass marks was declined by the Chief Officer at a meeting on 26 November 2003 and the issue was then referred to the Australian Industrial Relations Commission as an industrial dispute. It is to be noted that the union had changed its position from that which the Secretary had taken at the meeting on 9 October 2003 and which was described in the newsletter dated 10 October 2003.
On 26 November 2003 Senior Deputy President O'Callaghan in the Australian Industrial Relations Commission ordered that the South Australian Metropolitan Fire Service (Federal) Enterprise Agreement 2002 be varied to adopt Service Administrative Procedure No 40 “Promotion Procedures” and SAMFS Policy No 50 “Promotion Policy”. There is no complaint by the appellants that it was inappropriate to give effect to SAP40 in the promotion process even though it was not formally adopted for some months after the promotion process had begun.
On 3 December 2003 the dispute was listed before Senior Deputy President O'Callaghan of the Australian Industrial Relations Commission and the parties reached an agreement. The Senior Deputy President issued a Statement in which he noted that the South Australian Metropolitan Fire Service (Federal) Enterprise Agreement 2002 had application, that the agreement was varied with respect to promotion procedures on 26 November 2003 and it was that variation which was at the heart of the dispute. The Senior Deputy President recorded “the parties have agreed that there is a problem with the current Station Officer selection process in that the assessment tool was used to establish a pass/fail but was a test constructed so as to establish an order of merit” and recorded:
On this basis the parties have agreed to:
·      cancel the proposed supplementary test;
·      consider any personnel who did not pass the initial theory exam on the basis of merit;
·      exclude any personnel who did not demonstrate critical criteria in the practical or interview stages;
·      base any consideration of the selection process on an expectation of 50 Station Officer vacancies over the next 12 months with the majority of those positions to come into effect in December 2003; and
·      take account of the expectations of the employees who were declared to have passed the initial theory exam and ensure a review process which would involve the Deputy Chief Officer and the Union Secretary and which would consider the position of any such persons who were not placed in Station Officer positions by the end of January 2004;
·      recognise the decisions made today relative to the process in review of the process to be undertaken by the Promotion Committee pursuant to clause 8.3 of the SAP40.
The effect of the conciliated settlement was to reinstate into the promotion process those applicants who had failed the Theory examination in a way which permitted them to be ranked on overall merit. Persons who had failed the Theory examination and would on the supplementary process have been listed after all of the candidates in Group 1 could be ranked together with the Group 1 candidates according to overall merit. Specifically, the settlement meant that candidates who had failed the Theory examination could be awarded a higher overall ranking in the new order of merit than those in Group 1.
A memorandum from the Chief Officer to “All Stations” dated 5 December 2003 noted that on 20 November 2003 a Special General Meeting of the union had resolved to “request the Chief Officer retract his direction that a pass mark be allocated to all three stages (Theory, Practical, Interview) for the current Station Officer Promotion Process”. The memorandum also noted that the request was contrary to a previous submission received from the union in the early stages of the promotion process which had resulted in the allocation of pass marks to the Theory examination, Practical assessments and Interviews, that there were unsuccessful negotiations at the Single Bargaining Centre and that the dispute had proceeded to Conciliation in the Australian Industrial Relations Commission. The Chief Officer wrote:
As the Chief Officer, I was not prepared to agree to the request to remove the pass marks, unless there were provisions that took into account the expectations of those employees who were declared to have passed the initial theory exam. It was my position that these provisions would have to be formalised in a negotiated settlement in the Australian Industrial Relations Commission, in order to be acceptable and to minimise appeals.
In the memorandum the Chief Officer also wrote:
I also offer my apologies to all candidates and their colleagues, partners and families who undoubtedly have experienced some frustration as a result of this process. Whenever you have 117 candidates competing for a limited number of positions there is going to be disappointment, but this has been exacerbated through this process by circumstances beyond the control of the SAMFS Management.
While the Corporation and the union were represented in the negotiations before the Industrial Relations Commission not all applicants for promotion were.
The irony of the situation is that SAP40 was a serious attempt by the Corporation to ensure that promotion processes were “based on merit” and “valid, reliable, equitable and transparent”. Clause 2.2 specifically provided that promotional assessments would be conducted after first selecting appropriate assessment methodologies and tools. The requirements of clause 2.2 were not met.
At the time they sat for the Practical assessment and the Interview, Group 1 candidates were entitled to believe that so long as they achieved a pass for those components they would be nominated for promotion. By reason of the events which occurred that belief became erroneous. The settlement reached on 3 December 2003 did not protect the Group 1 candidates. After the settlement was reached, Group 1 candidates could only be nominated for promotion if they achieved an overall ranking in the new order of merit which placed them in the top 38. Simple passes in the Practical and Interview components were not sufficient to secure promotion for some of the candidates who had passed the Theory examination. After they had been told they only needed a simple pass in the Interview and Practical components, Group 1 candidates ended up competing against a greater number of applicants and a simple pass in the Practical assessment and Interview was no longer sufficient.
So far as the Group 1 appeals were concerned, there may have been cogent reason to depart from the decision of the Corporation. However, now that all Group 1 appellants have been nominated for promotion, their specific grievances have become irrelevant.
Developments since September 2005
On 29 September 2005, the court made some preliminary remarks. We will not repeat everything that was said. We adverted to the need to hear submissions from the nominees whose promotion was under attack and we adverted to the possibility that if the court was able to make an order pursuant to section 42F of the District Court Act 1991 one possibility was that the court might refuse to confirm any of the nominations under appeal and remit all of the nominations to the Corporation with a recommendation that a new selection process be carried out. That is the order which the remaining appellants now seek.
Following the hearing on 29 September 2005, the Corporation nominated the persons ranked 61 to 70 in the order of merit for promotion. Mr Grant advised that the Corporation had done that to heed the intimation given by the court. All those persons who had been nominated for promotion subsequent to the first thirty-eight have now withdrawn their appeals. All persons who passed the Theory examination have now been nominated for promotion.
The court is now left with appeals by the persons ranked 71 to 107 on the order of merit. Those appeals fall into two broad groups. First, there is one batch of appeals lodged during January 2004 against the first thirty-eight nominees. Secondly, there is a batch of appeals lodged in December 2004 against the nomination of persons ranked 49 to 60 in the order of merit.
As we have mentioned, no appeals have been lodged against the nomination of the persons ranked 39 to 48 and 61 to 70 in the order of merit. Presumably that was an oversight on the part of the appellants.
The present appeals
The appeals were listed for hearing on 5 December 2005. The Group 1 appellants continued to be represented by Mr Durkin of counsel, but because their situation had changed their submission was different from the one which had been put on their behalf in August and September 2005. They were no longer appellants and instead of seeking to have the nomination of persons ranked 1 to 38 rescinded and the matter remitted to the Corporation, the Group 1 appellants, who have now all been nominated themselves and were effectively respondents to the appeals by numbers 71 and below on the order or merit, sought to protect the status quo.
Mr Stanley and Mr Fabbro (and later Mr Manuel) appeared for the remaining appellants. Mr Grant continued to represent the Corporation. Mr Bourne represented Mr J A Foody who was number 20 in the order of merit and was therefore one of the first thirty-eight nominations. The arguments put by Mr Bourne on behalf of Mr Foody were relevant to all of the first thirty-eight nominees.
The argument of the appellants was that there were systemic problems in the promotion process. Mr Stanley argued that the court should act pursuant to section 42F of the District Court Act 1991 and remit all the nominations to the Corporation with a direction to commence the promotion process again.

Mr Stanley argued that there was an inherent unfairness in the process by which the seventy nominations have been made. He complained that the process was changed after the Theory examination had taken place and at the conclusion of the process. He argued that those nominations made after the first thirty-eight were made reactively and that in the end result the nominations of persons ranked 39 to 70 in the order of merit became linked to obtaining a pass in the Theory examination. Mr Stanley complained that his clients were not told of the necessity to pass the Theory examination, nor were they told initially that there would be a pass mark although they were subsequently told there would be a pass mark. It was argued that the appellants might have taken a different approach if they had understood that the litmus test for promotion was a pass in the Theory examination.
The appellants’ second argument related to the interview component. They complained there were five interviewers on a panel who sat in groups of three through the interviews so that the candidates had different examiners.
The appellants’ third argument was that during the period leading up to the Practical assessment in late October 2003 those candidates who were stationed at the Adelaide Fire Station had an advantage over candidates at other stations. They complained that firemen at the Adelaide station were given time off to practise the practical exercise while candidates from other stations were transferred to the Adelaide station to cover for them. The statistics were said to demonstrate that all other stations had a 46% success rate whereas the Adelaide station had an 82% success rate.
A fourth argument was that, contrary to SAP40 and expectations that had been created, the Corporation considered ineligible candidates. It was suggested that some candidates had not completed certain prerequisites. Ultimately that ground was not pursued. In any event, it is a ground which might apply against individual nominees, but it is not something which could give rise to a universal preliminary point.
The evidence
Two firefighters gave evidence in support of the appellants’ case. Mr Chance and Mr Mitton both gave evidence that their opportunity to practise the practical examination was limited because they were stationed at the Salisbury and Woodville fire stations respectively. They gave evidence that applicants at the Adelaide station enjoyed an advantage over them.
Mr Chance also gave evidence that if he had known that obtaining a pass in the Theory examination would be one of the ultimate determinators of promotion he would have placed more emphasis upon that subject. He narrowly missed a pass in the Theory examination.
Mr Tagell gave evidence that he was stationed at Adelaide where the applicants for promotion were given drill periods to practise as much as they wanted.
Mr Senior gave evidence on behalf of the nominees who are appealed against. He was ranked 29 in the order of merit and was promoted in the first group. His request to be transferred to the Adelaide station prior to the Practical examination was granted.
Mr Sedunary, the Assistant Chief Officer, gave evidence for the Corporation. He was the Chairman of the Promotions Committee. He gave general evidence about the training of firemen. He said that each person is an individual and that the Corporation does not provide training to firemen for promotion examinations. He acknowledged that candidates at stations which have two appliances did have an advantage over those at stations with a single appliance.
Mr Bourne, counsel for Mr Foody, called Mr K B Fitzgerald. He was ranked 14 in the order of merit. Mr Fitzgerald was stationed at Woodville for the whole of the process. He said there were approximately ten firemen at the Woodville station going for the Practical examination. Mr Fitzgerald gave evidence of private preparation for the Practical examination which he conducted in the backyard of his home with his wife and children.
The powers of the Court and criterion for determining the appeals
We have already set out the provisions of section 40A(6) of the South Australian Metropolitan Fire Service Act 1936 and section 42E of the District Court Act 1991. The question has arisen as to whether these provisions enable the court to remit all nominations which are subject to an appeal, on the basis that the selection process was unfair.
If an appeal succeeded and the court decided that a nomination should be revoked but the power of the court was confined by section 40A of the South Australian Metropolitan Fire Service Act 1936, the court could only appoint one of the appellants in place of the unsuccessful nominee. Deciding which of the appellants should be appointed would be difficult. Also, now that the number of appellants exceeds the number of nominees it would not be necessary to set aside all of the nominations. Some appeals have been discontinued. There are now twenty-eight appellants who are seeking to set aside forty-nine nominations. Choosing which of the nominations should be revoked to make way for a meritorious appellant would be difficult. Also, in addition to the practical considerations, there may be a question as to whether the court has power to set aside more nominations than are necessary to accommodate all of the appellants.
Giving effect to section 40A(5) of the South Australian Metropolitan Fire Service Act 1936 would be very difficult. Similarly, making a decision as to the respective merits of the nominees and the appellants by reference to the criteria in section 40A(6) would be both time consuming and difficult. If the court did no more than to consider the material before the Corporation, the decision of the Corporation would more than likely stand, unless an appellant could show that the criteria set out in the industrial agreement should have produced a different result. Carrying out an assessment of the merits of the appellants and the nominees would require the court to conduct a task which would be the equivalent of a further promotion process in order to give effect to section 40A(6). Because of the requirement to determine which of the appellants should succeed and which nominations should be revoked, all interested parties would need to be involved in the process.
In practical terms, the difference between the two provisions may be that under section 40A of the South Australian Metropolitan Fire Service Act 1936 the new process would be conducted by the court but under section 42E of the District Court Act 1991 the court could direct the Corporation to carry out the process.
For these reasons, the relief contemplated by section 42F of the District Court Act 1991 would enable a more practical solution in the present circumstances than section 40A of the South Australian Metropolitan Fire Service Act 1936.
Initially, the appellants sought orders that all nominations be rescinded and that all 107 candidates be at liberty to compete for the positions. During the course of the hearing it was accepted that any nomination, which had not been appealed against within fourteen days, could be confirmed. The court only has power to deal with those nominations which are subject to an appeal.
If the court does not have power to remit nominations pursuant to section 42F, but can only proceed pursuant to section 40A of the South Australian Metropolitan Fire Service Act 1936, the court would be required to consider each nominee who was subject to an appeal seriatim and to consider the claims of all appellants who have appealed against that nomination. That would mean that each of persons ranked 71 to 107 in the order of merit would effectively be competing both against each nominee who was subject to their appeal and against each other. While section 42F of the District Court Act 1991 may give rise to a more workable solution, that is not the relevant criterion. The question is whether the court can utilise the powers in section 42F.
Does section 42F of the District Court Act 1991 apply to promotion appeals by firemen?
Mr Grant, counsel for the Fire Service, argued that section 42F of the District Court Act 1991 does not apply to these appeals, because when Parliament amended the District Court Act 1991 by introducing Part 6, Division 2 for the purpose of achieving uniformity with Administrative and Disciplinary Appeals generally, it repealed section 52E(3) of the South Australian Metropolitan Fire Service Act 1936, which at that time was concerned with disciplinary matters, but left section 40A(6), which dealt with promotion appeals, untouched. He argued that demonstrated an intention that section 42F of the District Court Act 1991 would not apply to promotion appeals and that the powers of the court are limited to those contained in section 40A(5) of the South Australian Metropolitan Fire Service Act 1936.
Mr Grant argued that section 40A of the South Australian Metropolitan Fire Service Act 1936 deals with a highly specialised and complex procedure. He referred to the maxim “generalia specialibus non derogant” and argued that if the general provision of an Act would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply. He argued that section 40A is a complete code.
At the time when the clients of Mr Durkin were appellants, Mr Durkin submitted that the two sections could be read in a harmonious way. He argued that while section 40A of the South Australian Metropolitan Fire Service Act 1936 enables the court to revoke an appointment or confirm an appointment the two statutes can be read harmoniously so that it remains open for the District Court to remit a matter back to the Corporation. He argued that the intention of Parliament was that the process of the court on hearing the different types of appeals should be uniform and that nothing can be read into the fact that Parliament left section 40A untouched when it amended the Act in 2002. Ironically, that argument is no longer of assistance to the clients of Mr Durkin.
Mr Coppola, who initially appeared for the Group 2 appellants in August and September 2005, supported the argument of Mr Durkin. He said the court should be slow to find an inconsistency between the two statutes. He also referred to the opening words of the subdivision in the District Court Act 1991 which say that the subdivision is to apply “subject to the provision of the special Act” and that the court would need to be satisfied that Parliament intended to exclude the operation of section 42F(3) of the District Court Act 1991. He argued that there is no reason to treat the South Australian Metropolitan Fire Service Act 1936 as a code and that the proposition that a specific Act prevails over a general Act is a guideline only. He relied on Associated Minerals Consolidated Ltd v Wyong Shire Council[1] and Blackpool Corporation v Starr Estate Co[2].
[1] (1975) AC 538
[2] (1922) 1 AC 27
Mr Stanley also argued that the court does possess the powers contained in section 42F of the District Court Act 1991.
Mr Bourne argued that the only option open to the court was to either confirm the appointment or revoke the nomination and appoint the appellant. He argued that the wider powers of the District Court Act 1991 are subject to the provisions of a “special Act” which he said was the South Australian Metropolitan Fire Service Act 1936 or section 29 of the Fire and Energy Services Act 2005.
This question was previously referred to the Supreme Court in connection with these appeals by a differently constituted court, but the Supreme Court decided that the application was premature because no facts had been heard and the court had not reached the position of deciding whether it was to make any orders. The Chief Justice said that “if upon a hearing of the facts, the court is of the opinion it wants to be guided, that would be the appropriate time for the matter to go back before the Full Court”.
The question of whether the court is confined to the criteria set out in section 40A(6) was not fully explored.
Up until 1996 officers or firefighters were entitled to appeal to the tribunal against a nomination for promotion pursuant to section 40A(3). The tribunal was required to have regard to the criteria in section 40A(6). Officers or firefighters who were aggrieved by a disciplinary decision could appeal to the tribunal which was required to have regard to section 52E(3). In 1996 the Statutes Amendment (Administrative and Disciplinary Division of District Court) Act 1996 amended subsections 40A(3), (5), (6) and (7) by striking out the reference to the “Tribunal” and substituting a reference to the “District Court”. For present purposes it is significant that subsections (3), (5) and (7) were amended in the ways that we have mentioned, but otherwise left intact. In particular, the amendments resulted in the court being given the same powers that the tribunal had under subsection (5) and the court was required to have regard to the same criteria to which the tribunal had been required to consider under subsection (6).
By amending those subsections to substitute the court for the tribunal, but otherwise leaving them intact, did Parliament intend to exclude the general provisions in section 42E and 42F of the District Court Act 1991 which deal with the topics of the criteria to be taken into account and the relief which is available in slightly different ways? That question must be resolved by reference to the 1991 amending Act.
Section 42B provides that subsection (2) of Division 2, applies in relation to the appellate jurisdiction conferred on the court by another Act (the special Act) subject to the provisions of the special Act. Do the provisions of section 40A of the South Australian Metropolitan Fire Service Act 1936 exclude or modify the provisions of section 42F of the District Court Act 1991 in the case of appeals against a nomination for promotion?
The principle generalia specialibus non derogant does not apply where provisions in separate Acts are capable of independent existence or supplement each other. Mayberry v Plowman[3]. General provisions such as section 42F can add to specific provisions such as section 40A(5) without contradicting them. However, was that the intention of Parliament? By preserving and amending the subsections of section 40A in the way that it did, did Parliament make the provisions of sections 42E and 42F subject to the provisions of the South Australian Metropolitan Fire Service Act 1936? Was it intended that the court could have regard to the wider criteria in section 42E(2)(b) and the more extensive relief allowed by section 42F, or were the merits of promotion appeals by firemen to be confined by the more specific criteria in section 40A(6) and the relief confined to choosing between the nominee and an appellant or appellants.
[3] (1913) 16 CLR 468 at 473-5
The situation contended for by the Corporation, namely, that the court is limited to confirming a nomination or revoking a nomination and appointing another appellant in place of the unsuccessful nominee, would be appropriate where a single appellant is challenging a single nominee, but there are practical difficulties where multiple appellants challenge multiple nominations. In the case of a simple appeal by one person against a single nominee, the procedure established by section 40A of the South Australian Metropolitan Fire Service Act 1936 would normally accommodate the situation and be appropriate. Section 40A presupposes a choice between one nominee and one or a small number of appellants. In that case, the court would only be required to determine which of the nominee or the appellant should be appointed. However, in a case such as the present where there are multiple appellants all challenging a large number of nominations, an examination of the merits of each nominee vis-à-vis each appellant and the merits of each appellant vis-à-vis each of the other appellants would be a cumbersome and extensive process. Also, in the present case, the appeals raise the appropriateness of the selection process itself, which is something more fundamental than a determination of the merits of competing applicants. Section 40A of the South Australian Metropolitan Fire Service Act 1936 does not accommodate a challenge to the process itself as opposed to a challenge to a particular nomination.
In our opinion the two provisions are not mutually exclusive and can coexist. We find that the two provisions can exist harmoniously. We find that Parliament did intend to give the court the specific powers in section 40A of the South Australian Metropolitan Fire Service Act 1936 and it also intended to confer a uniform set of powers on the District Court which can be invoked in all appeals under Division 2 of the District Court Act 1991. That is, we find that by amending and retaining section 40A(5) of the South Australian Metropolitan Fire Service Act 1936 Parliament did not exclude section 42F of the District Court Act 1991 in the case of promotion appeals by firemen. The separate provisions are capable of independent existence and supplement each other. There is no reason why the general powers in the District Court Act 1991 should not apply to promotion appeals in an appropriate case. The present case is one where it would be appropriate to remit the decision to the Corporation.
Accordingly, we find that the court would in an appropriate case have the power to revoke a nomination, which is subject to an appeal, and to remit the nomination to the Corporation. That is, the court would have power to remit the nominations of the persons ranked 1 to 38 and the persons ranked 49 to 60 in the order of merit and direct that a fresh process be conducted for those positions.
The court does not have power to revoke the nominations of the persons ranked 39 to 48 inclusive and 61 to 70 in the order of merit because no appeals have been lodged those nominations.
The merits of the appeals
The first question is whether “systemic” or process problems can by themselves give rise to an entitlement to relief. If the criteria for relief were confined to section 40A(6) the court would be concerned only with considerations personal to the nominees who are subject to an appeal and the appellants. On the other hand, subject to the requirement for cogent reasons, section 42E invites a wider enquiry and enables the court to “act according to equity, good conscience and the merits of the case”.
As we have indicated, if the court was still required to consider the appeals by the Group 1 nominees, that is the persons who had passed the Theory examination, there is a possibility that the process would be found to be unfair to them so that all of the nominations which are subject to an appeal by Group 1 would need to be remitted. However, the complaints of the Group 1 appellants have now been satisfied by the promotion of all the applicants ranked 39 to 70 inclusive and their appeals have been withdrawn.
The Corporation did not comply with the requirements of clause 2.2 of SAP40 in that it did not select the appropriate methodologies and tools first. The selection criteria were changed during the process and the ultimate methodology was not arrived at until after the candidates had completed each of the three stages. The Acting Secretary of the Union accurately described the position on 29 October 2003 when he said “that the process was commenced without a clear understanding of how the process would work”. It is difficult to be critical of the Corporation, because when one takes an overview of the process one can see how the changes to the process were either an attempt to comply with SAP40 or were responsive to pressure which was being placed on the Corporation and were made in an attempt to achieve industrial harmony.

However, the fact that so many changes were made to the process as it continued must result in the whole process being subject to criticism. Ironically the criteria which were eventually taken into account in arriving at the order of merit may have been those which would have applied if no changes had been made after the process commenced.
While the Group 1 appellants may have been prejudiced by the changes, the present appellants actually benefited from the decision that a pass in theory was not required because the decision brought them back into the process, made a pass in theory inconsequential and provided them with the opportunity for promotion based on their overall mark.
Although the process can be criticised because of the changes that were made while the process was underway, the present appellants have not demonstrated that they have suffered prejudice by reason of the changes. In fact, they have benefited from the changes. The criteria which were ultimately adopted were no less favourable to the present appellants than the criteria which they might have assumed either when the process was first announced or at any time thereafter.
If the nominations were set aside by reason of the unfairness which applied to the Group 1 appellants, it may be that all of the appellants would fortuitously have enjoyed the benefit of that decision. That is, the Group 2 appellants, who had not passed the Theory examination, would, if there was to be a fresh set of examinations, be included in a new promotion process. However, the appeals by Group 1 have been withdrawn and the present appellants have lost the opportunity to ride on the coat tails of Group 1.
The court is now required to consider arguments put on behalf of the remaining appellants. Mr Stanley said there were two fundamental propositions. First, he argued that the appellants were entitled to have their applications determined on the basis of a level playing field. Secondly, he argued that the principles of fairness and transparency required that the process should be fixed in advance. He argued that the process which was carried out did not satisfy either of those two requirements. He said that the three specific failings, which are referred to above, give rise to “systemic” problems. He complained that the criteria changed after the process had commenced in that a pass mark was introduced for the Theory examination. It was argued that introduced an element of unfairness.
The appellants complain that the persons who have now been promoted, namely those ranked 1 to 70 in the order of merit, extend the list of nominees so that it includes all persons who had passed the Theory examination. It was argued that a pass in the Theory examination has thereby become an important criterion.
We find the fact that the number of nominees has been increased from thirty-eight to seventy so that it includes everyone who passed the Theory examination has not prejudiced those who were placed below number 70 in the order of merit. There are persons who did not pass the Theory examination who were nominated both in the first thirty-eight and the subsequent nominations of 39 to 70. The criterion for promotion was the applicants’ position in the overall order of merit which was arrived at without reference to the need for a pass in the Theory examination. The appellants have not established any procedural unfairness in the way that the order of merit was arrived at. We do not accept the appellants’ submission.
It is true that changes were made during the life of the promotion process and there are ways in which the process might be criticised. However, the order of merit was arrived at by applying the same criteria to all of the candidates equally. A pass in the Theory examination was not a prerequisite.
We accept the submission of Mr Grant for the Corporation that the evidence does not establish that persons who sat for the Theory examination but did not pass have suffered any disadvantage. Those who passed and those who failed the Theory examination have been treated in the same way. The fairness of the Theory examination itself has not been challenged.
The Interview process
It is accepted that the Interview panel was not consistent. There was a subjective element in the assessment and there was the possibility that different interviewers would apply subjective considerations. A Review of Promotion and Selection Policy and Procedures by Mr G Stevens (Exhibit A2) contained many recommendations. One recommendation (number 46) was that there should only be one interview panel, although the report recognised that delays would occur where large numbers of applicants are involved. The review recognised that practical considerations must be taken into account.
There were 107 applicants. To convene the same panel of three examiners for each of 107 applicants would have been a difficult task. While a panel of five interviewers was employed there was an element of constancy in the constitution of the interviewing panels.
An exhibit has analysed 100 interview assessments. Why all 107 interview assessments were not analysed was never explained. Assessor A was present at all 100 interviews. Assessor B was present at ninety-six of the 100 interviews. Assessor C was present at eighty-four of the 100 interviews. Assessor D was present at fifteen of the 100 interviews and Assessor E at five of the 100 interviews. That means that the same two members of the interview panel interviewed ninety-six of the 100 candidates.
Mr Bourne submitted that the interview process may not have been perfect, but was not unfair or improper. We accept that submission.
At the moment there is no evidence that any particular candidate has been actually prejudiced by reason of the changes in the personnel of the interviewing panel. If on the hearing of the individual appeals an appellant can show that a change in the constitution of the interview panel caused him to be ranked below a nominee against whom he has appealed, then the position of that appellant may need to be considered separately. We do not consider the fact that there were changes to the composition of the interview panel is a sufficient reason to set aside the whole promotion process. The practical considerations cannot be disregarded.
The Adelaide advantage
The statistics show that candidates stationed at the Adelaide station did achieve a better pass rate than the overall rate. However, there were other fire stations which had a higher or similar pass rate to the Adelaide station. For example, all of the five candidates from the Angle Park station have been nominated, nine out of eleven candidates (81.82%) from the Saint Mary’s station have been nominated and eight out of eleven candidates (72.73%) from the Woodville station were nominated. On the other hand, some candidates stationed at the Adelaide station were not nominated. Of the seventy persons who have now been nominated forty-one were stationed at places other than the Adelaide station.
With any examination there will always be some candidates who prepare themselves better than others and there will be candidates who may benefit from their environment and the persons with whom they associate. Some people, like Mr Senior and Mr Fitzgerald, used their initiative to enhance their preparation for the Practical examination. The examination scenario was made available to all candidates well in advance of the examination on 24 September 2003.
We accept the evidence of Mr Sedunary that the Corporation does not have any obligation to tutor candidates for promotion.
We accept the submission of Mr Bourne that the Corporation played no part in affording any applicant or applicants, at the Adelaide station or otherwise, any advantage in the process. We also accept the submission that candidates like Mr Chance and Mr Mitton, who were at two-appliance stations such as Salisbury, had a greater opportunity for hands-on experience in real life scenarios. Further, we accept the submission that Mr Chance was at times the acting station officer and was able to and did direct the personnel to rehearse the practical test. It is significant that not all of the nominees who are appealed against were stationed at the Adelaide station. Why should candidates who did not enjoy the suggested Adelaide advantage be penalised.
The mark sheet (Exhibit C5) shows that there were officers at other fire stations who performed well in the Practical examination. Overall the mark sheet does not reveal any pattern which establishes a cogent reason to set aside the whole promotion process because of an unfair advantage enjoyed by candidates stationed at the Adelaide station.
Candidates at certain fire stations will always enjoy some advantages over candidates stationed at other fire stations. There may also be disadvantages. That is a fact of life. It was up to the individuals to prepare themselves for the examinations. A candidate who wanted to enhance his prospects by working at the Adelaide station or some other station could have applied for a transfer. Alternatively, he could have devised a personal programme like Mr Fitzgerald or devised a personal study programme.
Most fundamentally, there is no means of curing the sort of advantages which are the subject of the complaint. In practical terms it would be impossible to provide a level playing field. In any occupation some candidates for promotion will benefit fortuitously from their work environment and from the experience they gain during the course of their service.
Importantly, it has not been demonstrated that if the percentage advantage said to emanate from being at the Adelaide station was added to the mark of a particular appellant any appellant would have been elevated in the order of merit so as to take the place of any of the nominees who are subject to an appeal. If it could be demonstrated that a particular nominee suffered prejudice that may be a matter for consideration in the particular case, but it is not a reason to set aside the whole process.
The requirements for a pass in Theory
The fact that a pass in the Theory examination has as a matter of reality now become the threshold does not give rise to any legitimate complaint. An order of merit was established by totalling all the marks of each candidate. The first seventy persons in that order of merit have now been promoted. The fact that the cut-off point was at a level, which happens to include all persons who passed the Theory examination, is coincidental. The nominees for promotion include persons who did not pass the Theory examination. It was an order of merit which was based on the three examinations in which all of the candidates were treated equally. In fact, seventy persons have now been nominated whereas the initial advertisement suggested that the number of positions to be filled was in the order of thirty. The increase in the number of nominations does not give rise to any unfairness to those candidates who were not successful. In fact, their chances of promotion were increased. The fact that a pass in the Theory examination may have become the threshold for determining the cut-off, does not establish that the order of merit was not arrived at fairly or that more than seventy persons should have been nominated. A cut-off line had to be drawn somewhere.
From the outset candidates should have known that the process was going to be highly competitive because of the large number of applicants and the limited number of positions. It should also have been obvious that it would be necessary for the candidates to do their best in each of the three components. The suggestion that candidates may not have put their best foot forward in the Theory examination because the Corporation had not emphasised the importance of that subject is not a valid complaint and is not a reason for setting aside the whole process.
Considerations as to equity, good conscience and the substantial merits of the case
As we have mentioned, there are appeals against the nominees who were ranked 1 to 38 and 49 to 60 in the order of merit, but not the others. If the nominations of the persons ranked 39 to 48 and 61 to 70 were allowed to stand, but all of the nominations ranked 1 to 38 and 49 to 60 were set aside, there would be an obvious unfairness. One can assume that there are no appeals against the persons ranked 39 to 48 inclusive and 61 to 70 because of an oversight on the part of the appellants. The injustice is illustrated by the fact that the nomination of the most meritorious nominee would be set aside, but the last ten nominees, those ranked 61 to 70, would be confirmed.
The court must be satisfied that there is cogent reason to disturb the nominations. In our opinion the theoretical disadvantages, which have been suggested, do not establish cogent reason to set aside all the nominations. There is no evidence of actual disadvantage to any appellant. The matters which are complained of do not justify an order revoking all of the nominations under appeal.
A situation has evolved in which in the first batch of appeals the highest placed appellant (number 71 who achieved a total mark of 67.07%) is appealing to set aside the nominations from the highest placed nominee (who achieved 84.86%) to number 38 (73.5%). In the second batch of appeals the appellants seek to set aside the nomination of persons who scored from 68.85% to 67.08%. While the first of the appellants (number 71) had scored a mark close to the nominee ranked 70, as one would expect, the last fifteen appellants had scored less than 60%. The variation between the top and the bottom scores is so great that it is unlikely to be the result of the procedural problems which the appellants complain of.
While the issue was not fully explored during argument, different considerations should apply to the first batch of appeals (nominees 1 to 38) from the second batch (nominees 50 to 60). Also many nominations, including the last ten, have not been appealed against. It would not accord either with justice or commonsense to set aside the nominations of persons ranked 1 to 38 on the order of merit, but to leave nominations ranked 60 to 70 intact.
We are not satisfied that the present appellants have demonstrated any cogent reason for setting aside all of those nominations which are subject to an appeal on the basis of “equity, good conscience and the merits of the case”. Accordingly, it is unnecessary to consider whether section 42E of the District Court Act 1991 applies to these appeals. Similarly, there is no reason to make orders remitting the matters to the original decision maker with directions to conduct a fresh process pursuant to section 42F of the District Court Act 1991.
Furthermore, we find that to set aside all of the nominations which are subject to an appeal would create a far greater unfairness than anything of which the appellants have complained. If the court set aside nominations 1 to 38 and 50 to 60 it would not be acting according to equity, good conscience and the substantial merits of the case. Twenty-eight nominees are seeking to set aside forty-nine nominations.
Accordingly, we would decline to make the order which has been sought by the appellants.
It will now be necessary to hear particular appeals. As we have mentioned, the scheme of the Act requires that the focus should be on nomination rather than the appellants. The court should have regard to the criteria described in section 40A(6) of the South Australian Metropolitan Fire Service Act 1936 vis-à-vis each nominee and each of the persons appealing against him.
This decision should not preclude individual appellants from raising on the hearing of their individual appeals the arguments put by Mr Stanley on behalf of the group jointly or any other arguments they may wish to raise.
The decision of the court is that the matters which have been raised on behalf of all of the appellants do not provide cogent reason to set aside all of the nominations which are subject to the appeals. It is still open to individual appellants to argue that there is a cogent reason why they should be appointed in place of a particular nominee.
There will be a callover of all appeals to identify the nominees against which each of the appellants wishes to maintain and appeal and fix hearing dates.