Mair, P.J. v Bartholomew, J.E - [1992] FCA 283

Re: PETER J. MAIR
And: J.E. BARTHOLOMEW; L.M. ANDERSON; J.G. SMITH and B.W. FRASER
No. G278 of 1991
FED No. 283
Administrative Law
(1992) 108 ALR 182
(1992) 27 ALD 699 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - judicial review - promotion decisions within the Reserve Bank - appeal to Promotions Board of Review - whether appellant informed of the contents of the report of the first instance Interview Panel - whether Board of Review bound to afford procedural fairness - content of procedural fairness in this context - whether a denial of procedural fairness.

HEARING

SYDNEY

#DATE 18:5:1992

Counsel for the appellant: Mr W. Haylen QC and Mr J. Pearce

Solicitors for the appellant: Geoffrey Edwards and Co

Counsel for the fourth respondent: Mr A. Whitlam QC and Mr G.T. Johnson

Solicitor for the fourth respondent:Mr T.J. Grady

ORDER

THE COURT DECLARES THAT:

1. Procedural fairness was not accorded to the applicant in his appeal to the Promotions Board of Review.

THE COURT ORDERS THAT:
1. The Fourth Respondent pay the Applicant's costs of the application.

Liberty to the parties to apply within 7 days for any further order as may seem meet is reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Mr Peter J. Mair, who is an officer of the Reserve Bank Service, seeks orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The respondents are three members of the Promotions Board of Review established to consider appeals against promotions in the Reserve Bank Service. The fourth respondent is the Governor of the Reserve Bank. It would have been preferable had the Reserve Bank of Australia been joined as a respondent. Four officers of the Reserve Bank Service, Messrs P.F. Barry, A.S. Cheok, B.L. Gray and K.M. Hall, against whose provisional promotion Mr Mair appealed to the Promotions Board of Review, have been given notice of the proceedings but have not sought to be joined.

The relevant decisions of the Promotions Board of Review were made on 28 March 1991. The application was lodged on 30 May 1991. The matter then proceeded in a somewhat dilatory manner. The decision in Ansell v. Wells (1982) 43 ALR 41 should be sufficient warning to lawyers involved in this type of proceeding that the application should be brought on for hearing at an early stage. However, time was lost when the respondents challenged the jurisdiction of the Court. The respondents alleged that as there was, in respect of the Reserve Bank Service, no scheme prescribed by statute or by regulation, there was no relevant decision "under an enactment". On 11 November 1991, I held that a Staff Handbook, a Circular No. 2790 and a circular of 11 January 1991 were instruments for the purposes of s.3(1) of the ADJR Act and that the decisions were taken pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mair, P.J. v Bartholomew, J.E

Details

AGLC: Mair, P.J. v Bartholomew, J.E. & ors [1992] FCA 283 ((1992) 108 ALR 182; (1992) 27 ALD 699)
Case: [1992] FCA 283
Decision Date: 18 MAY 1992

CaseChat Overview and Summary

In Mair v Bartholomew, the Federal Court addressed a dispute regarding the procedural fairness afforded to the applicant during an appeal to the Promotions Board of Review within the Reserve Bank. The applicant contested the denial of a promotion and sought judicial review, arguing that he was not informed of the contents of the report from the initial Interview Panel, which he claimed was a breach of procedural fairness.

The court was tasked with determining whether the Board of Review was obliged to provide procedural fairness to the applicant in the context of an internal appeal and, if so, what the content of that procedural fairness would be. Specifically, the court needed to decide whether the failure to inform the applicant of the contents of the Interview Panel's report constituted a denial of procedural fairness.

The court found that procedural fairness was indeed required in this context and that the Board of Review was obligated to inform the applicant of the contents of the Interview Panel's report. The court determined that the lack of such information to the applicant resulted in a denial of procedural fairness. Consequently, the court declared that procedural fairness was not accorded to the applicant and ordered that the costs of the application be paid by the fourth respondent. The court also reserved liberty for the parties to apply for any further orders within seven days.

Orders

Orders of the court

THE COURT DECLARES THAT:

1. Procedural fairness was not accorded to the applicant in his appeal to the Promotions Board of Review.

THE COURT ORDERS THAT:

1. The Fourth Respondent pay the Applicant's costs of the application.

Liberty to the parties to apply within 7 days for any further order as may seem meet is reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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