Mair, P.J. v Bartholomew, J.E
[1992] FCA 283
•18 MAY 1992
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 them and the Reserve Bank Act 1959 (Cth) (reported (1991) 104 ALR 537). Accordingly, the Court had jurisdiction under the ADJR Act. In the subsequent hearing, a further document being a working draft of "Guidance for Interview Panels" was tendered and received in evidence without objection. I need not discuss whether it is "an instrument" for the purposes of the ADJR Act as it concerns the first instance decision pursuant to which the four officers were provisionally appointed to the offices for which Mr Mair had applied. The document does not relate to the operation of the Promotions Board of Review.
On 11 November 1991, I said, inter alia at p 543:-
"In my view ... the three documents I have mentioned above, the Staff Handbook, circular No. 2790 and the circular of 11 January 1991, are instruments for the purposes of s.3(1) of the ADJR Act. They set down or evidence the terms and conditions under which officers of the Reserve Bank are employed in accordance with s.66 of the Reserve Bank Act. The documents came into being pursuant to the Bank's authority under s.66(2) to determine the terms and conditions of employment. The fact that the Union was consulted before major changes were made to the terms and conditions does not detract from this point. I am satisfied, moreover, that the relevant decisions were made under the instruments I have mentioned. The Staff Handbook specifies that there shall be a Promotions Board of Review and what its composition will be. It also specifies the circumstances under which application may be made to the Promotions Board of Review, what its powers are, what are the principles which will guide it in its deliberative process and what will be the effect of its decisions. I am thus satisfied that the subject decision of the Promotions Board of Review was made under the provisions of the Staff Handbook as affected by circular 2790 and the circular from the Governor."
The criterion for promotion is "relative efficiency". Circular No. 2790 advised that seniority had been abolished as an appeal criterion and said:-
"Seniority has been abolished as a selection criterion. In selecting an officer for promotion, the Bank will have regard only to the relative efficiency of the officers eligible for promotion.
`Efficiency' has been redefined as the suitability of an officer (after an appropriate learning period) to carry out the specific requirements of the position to be filled and, where considered relevant, the general requirements of the classification level, having regard to:
. abilities to do the duties; . relevant experience; . relevant training and qualifications;
. willingness to meet any particular requirement specified. ...
Seniority has been abolished as an appeal criterion."
The process of appointments and appeals is as follows. A vacant office is advertised. Persons seeking appointment to the office make application therefor. An Interview Panel is established. Members of the Interview Panel will usually be senior members of the Reserve Bank Service who have knowledge of the duties to be performed and of the capacities required. The Panel interviews the applicants, their referees and other officers and persons who can advise as to the applicants' abilities. The Panel makes a recommendation. Thereafter a provisional appointment is made.
An applicant who is dissatisfied with the provisional appointment may appeal to the Promotions Board of Review. The Board of Review is an independent board chaired by the first respondent, Mr J.E. Bartholomew, who has had long experience in the Commonwealth Public Service. Another member is nominated by the Reserve Bank and a third member is nominated by the Reserve Bank Union. The respondents, L.M. Anderson and J.G. Smith, are such persons.
The Promotions Board of Review likewise determines the appeal by reference to the criterion of "relative efficiency". The Board of Review receives submissions from and sometimes interviews appellants. The Board of Review makes all necessary inquiries of other persons such as the provisional appointee, referees, officers and other persons with whom the appellant and the provisional appointee have worked and who can comment upon their abilities. The decision of the Board of Review is determinative if the appeal is dismissed but recommendatory if the appeal is allowed. Following upon the decision of the Board of Review, a final appointment is made or the provisional promotion is confirmed.
The circular of 11 January 1991 provides, inter alia:-
"5. The assessment/selection process is to entail the following steps: ...
(v) The Interview Panel will be responsible for examining the applications and selecting the more promising applicants for interviews; conducting the interviews; assessing and ranking the interviewees on the basis of their applications, interviews, skills appraisals, referee reports from current and past supervisors and any other relevant information; and submitting a report and recommendation to the relevant Assistant Governor. Every effort should be made to reach unanimous recommendations although divided recommendations may be unavoidable on occasions. EEO principles are to observed throughout. The Chairperson of the Panel will be primarily responsible for initiating and expediting these processes, including the preparation of the report to the relevant Assistant Governor.
(vi) The Panel Chairperson should provide - or arrange for someone to provide - appropriate feedback to unsuccessful applicants. The Panel should also indicate in its report instances where it believes particular applicants would benefit from some counselling regarding their interview performance, attitude, aspirations and so on. ...
8. Subject to the changes noted below, appeals against provisional promotions are to be handled in much the same manner as in the past, ie officers may have their claims for promotion reviewed by submitting an appeal in writing to the Chairman of the Promotions Board of Review."
The Staff Handbook, which is now somewhat out of date, provides inter alia:-
"15. Officers of the Bank may have their claims for promotion reviewed against those of the officer provisionally promoted by submitting an appeal in writing to the Chairman of the Promotions Board of Review, Reserve Bank of Australia, Box 3947 G.P.O., Sydney, N.S.W. 2001. The Board comprises three persons (a Chairman, A Bank Representative and an elected Staff Representative) whose names will be notified to staff from time to time by Circular.
16. Where such an appeal is lodged, the Promotions Board of Review will make full enquiries into the claims of the appellant and those of the officer provisionally promoted, and forward a recommendation to the Governor. Where this disagrees with the original appointment and the consequent recommendation is approved by the Governor, the provisional promotion will be cancelled and the appellant promoted to the vacant position. ...
...
18. Provisional promotees will be given an opportunity to make a statement to the Board on their behalf. Any such statement must be forwarded to reach the Chairman of the Board within seven days of the date of notification of the names of appellants. The lodging of such statements, however, is entirely at the option of the officers concerned and if they prefer not to make a statement, it will not in any way prejudice their case when the Board is considering the appeal.
19. Where appeals in terms of the foregoing are disallowed, or where no appeals are lodged within the time provided, the provisional promotion will be confirmed."
Mr Mair's problems arose from a decision to reorganise aspects of the Reserve Bank Service. Some offices, including that held by Mr Mair, who was a Level 6 officer, were abolished. A reduced number of other offices was created. Some of these were given a higher classification, Level 7, because of the additional responsibilities involved.
These new offices were advertised. Mr Mair applied for appointment to five of the offices. Mr Mair believed that he had the experience and capacity to qualify him for each of the positions. In particular, he considered himself to be the best officer for the position of Chief Manager (Policy Development and Research) Bank Supervision Department, the duties of which reflected most closely the duties of the office which Mr Mair had held and in which he had performed to the apparent satisfaction of senior officers.
The Interview Panel established to consider the promotions consisted of the five Assistant Governors of the Reserve Bank and its Head of Personnel. One Assistant Governor, Mr G. Thompson, was the head of the section in which Mr Mair worked. Another Assistant Governor, Mr MacFarlane, and the Head of Personnel, Mr P. Ferguson, knew Mr Mair's work and had contact with him on a day-to-day basis.
The Interview Panel preferred other applicants for each of the positions for which Mr Mair had applied. Provisional promotions were made accordingly, Mr B.L. Gray being appointed provisionally to the position I have mentioned. The decisions of the Interview Panel were circulated on 28 February 1991.
On the following day, 1 March, Mr Mair was counselled by Mr Thompson, the Assistant Governor who was in charge of Mr Mair's section, and also by Mr Ferguson. Both informed Mr Mair that the decisions had not resulted from dissatisfaction with his work but that there were aspects of the focus of his work and of his writing which had led to the view that the successful applicants were better qualified for the Level 7 positions.
On 7 March, Mr Mair spoke again with Mr Thompson.
On 12 March, Mr Mair lodged appeals against the four provisional promotions in the Financial Institutions Division of the Reserve Bank including the provisional promotion of Mr Gray. On 19 March, Mr Mair lodged a statement in support of the appeals which included the following:-
"I feel that those involved in making the decisions erred both in not following correct processes and consequently in not discovering all relevant considerations readily available to them. Specifically, on due process the decision makers: . did not give me the opportunity to address reservations discovered about my performance from others after the initial interview; and . did not consult a balanced group of referees - I believe those asked to comment had a closer affinity to Brian Gray (and the other appointees) than to me. On proper regard for matters of fact the panel: . did not have sufficient regard to all relevant considerations readily available; and
. were not reasonably entitled either to discount my capacity to fill an operational job or to take more senior management positions. ...
Against this background of cross currents in assessments of my ability I would have expected the decision makers to give me the opportunity - beyond the initial interview - to put my situation in perspective. At the conclusion of the job interview, the panel asked if I had any questions. I said I would appreciate an opportunity to comment on any reservations about my work which had been put to the panel. I was assured that they were working off a clean slate. Subsequently, I was given no further opportunity to comment nor any advance warning that the decision could go against me. I believe that there was a material lack of due process in making the decision. ...
In summary, I regard it as unsound to override my claim to be appointed, on the score of demonstrated superior efficiency, to one - and one in particular - of the four level seven jobs in the Financial Institutions Division. ...
I believe that, on a reasonable judgement of the evidence, it would be appropriate for me to be judged to have an efficiency edge over each of the four officers whose appointments are appealed - but over Brian Gray in particular. Thank you for your consideration. I would appreciate the opportunity to talk to the Board to address issues raised in the course of the deliberations."
Considering the standing of the members of the Interview Panel, their knowledge of each of the applicants and their understanding of what the duties of the new offices would entail, it must be doubted that the appeals had any prospect of success. It was hardly likely that a Promotions Board of Review, on inquiry, would find that there were more weighty views than those of the five Assistant Governors and the Head of Personnel who constituted the Interview Panel. However, the merits of the appeal are not in issue. It is the procedure followed by the Promotions Board of Review with which we are concerned.
In the proceedings before the Interview Panel, Mr Mair had not sought to ascertain who were the other applicants for each of the positions and had merely in his applications described his own qualifications and his capacities for the positions sought. He had relied upon the Interview Panel to make all proper inquiries as to relative efficiency of the applicants. In fact, the Interview Panel did not make inquiries of two of the referees nominated by Mr Mair, Mr Michael Bush and Mr John Colditz, who had earlier been Mr Mair's superior officers. The Panel considered that their views would not assist. Accordingly, Mr Mair was faced with provisional promotions which he could not understand, for he thought his claims for at least one of the positions and probably more were better than those of the provisional promotees and with the circumstance that no inquiry had been made of referees he had nominated.
Mr Mair did not ask for a copy of the report of the Interview Panel, as he believed he was not entitled to it, and it was not provided to him. There is a dispute in the evidence as between Mr Bartholomew and Mr Mair. Mr Bartholomew has given evidence that in the course of the interview undertaken by the Promotions Board of Review of Mr Mair, he asked Mr Mair if he wished to see the report of the Interview Panel but that Mr Mair did not respond. Mr Mair's evidence is that he was not offered the report. It seems unnecessary to resolve this conflict. Rather, the conflict illustrates the problems which arise when important documents such as the report of the Interview Panel are not made available in some positive way to an appellant so that the appellant has the opportunity of addressing the matters raised in it.
Subsequently, after the Promotions Board of Review had dismissed his appeal, Mr Mair obtained under Freedom of Information legislation, a copy of the report of the Interview Panel, a sanitised version with the confidential information such as the names of other applicants other than the provisional appointees deleted. Mr Ferguson has given evidence that such reports were always available though rarely requested and that he has now taken steps to ensure that appellants are aware that they may obtain a copy of the report if they wish to do so. Mr Bartholomew gave evidence that it was his understanding that such a report should always be made available if the appellant wished to see it. However, in Mr Mair's case, he was unaware that he was entitled to the report and, if it was offered to him at all, it was offered to him during the course of his interview in such a way that he did not respond to the offer.
The report of the Interview Panel included the following:-
"For the Chief Manager, Policy, Development and Research position, the Panel was looking in particular to select an applicant who was academically and technically expert, who could think strategically and laterally, understand the larger context of policy, who could write well and deliver well-focussed work (position papers, drafts of speeches, etc) on time and who could lead a research team of specialists. ...
Mair was seen as an active and committed officer, with innovative ideas and a depth of experience in the micro-behaviour of financial intermediaries and perceptive about the `big issues' of supervision policy; and he interviewed quite well. At the same time, the Panel noted views that his work was sometimes not well focussed, that his written communication needed improvement and that his judgment was sometimes precipitate. The views of Mair's current Department Head were sought. The Panel also sought views from Gray's supervisors. It noted that despite lacking direct work experience in bank supervision, he had extensive and relevant background in markets and intermediaries' behaviour during his time in Research and Domestic Markets Departments. The interview confirmed that Gray had an excellent grasp of broad supervision policy and research issues and the Panel judged him technically competent to handle the requirements of the job. The Panel also noted his ability to write well, his presentation skills, his flexibility, and his ability to manage a team of research staff. In considering the relative claims of Mair and Gray, the Panel concluded that Gray would bring to the position an intellectual rigour at least the equivalent of Mair's, and in addition had better writing skills, a better capacity to deliver well-focussed products and sounder overall judgment."
I need not set out the comments made with respect to the other positions considered.
In the absence of the report of the Interview Panel, Mr Mair was not able to focus his attention on such issues. Had he had the written report before him, he would have been able to determine exactly where the Interview Panel had considered him to stand in respect of each of the four positions which was under appeal. He would have been able to appreciate the good points which the Interview Panel had stated with respect to the successful applicants and he would have had a basis from which he could have directed attention to specific issues.
As it was, Mr Mair was unclear as to why he had not been promoted, as his submission to the Promotions Board of Review showed. Mr Mair expected that the Promotions Board of Review in its interview with him would put forward examples of defects in his work which he could refute in the course of his discussions with them. But of course, the matter did not proceed in that way.
On 20 March, Mr Mair was invited to attend the next meeting of the Promotions Board of Review on 27 March. He did so.
The Promotions Board of Review had, before interviewing Mr Mair, made inquiries of the two referees who had not been spoken to by the Interview Panel but it had not completed its inquiries. Mr Bartholomew, who was the only member of the Promotions Board of Review to enter into a discussion with Mr Mair during the course of the interview, which took 15-20 minutes, did not disclose to Mr Mair what had been the result of the inquiries made of the two referees. Nor did Mr Bartholomew enter into a detailed debate with Mr Mair concerning the relative efficiencies of himself and the provisional appointees. Rather, Mr Bartholomew gave to Mr Mair an opportunity to say anything which Mr Mair wished to put. Thus, Mr Bartholomew deposed in his affidavit, inter alia:-
"I said to Mr Mair words to the effect:- `The Board has already interviewed Mr Bush and Mr Colditz. With respect to your second point, the selection committee's report does mirror some of the points you have referred to on page 1 of your appeal statement where you speak of your discussion with Mr Thompson - especially his reference to your work focus and writing skills. It seems that you were found suitable for appointment to these level 7 positions, but the provisional promotees were found more efficient. ...
I said to Mr Mair words to the effect:- `The Board will take into account the documents to which I have referred and any oral statements made to it. It will also speak to various senior managers. Ultimately we will decide, with respect to each of your appeals, whether, on the evidence before us, we consider you or the provisional promotee to be more efficient.
...
At the interview of Mr Mair on 27 March 1991, Mr Mair did not put any further evidence or submissions to the PBR as to the merits of his appeal. He raised only the questions of procedure to which I have referred."
Mr Mair in response spoke in generalities for, not having read the report of the Interview Panel, his attention was not directed to specific issues. Mr Mair left the interview feeling that little or nothing had been achieved.
Inevitably, after the Promotions Board of Review had completed its inquiry, its decision was that the provisional appointments should be confirmed and that occurred. The substance of the reasons of the Promotional Board of Review was as follows:-
"Ability to perform the duties of the advertised positions
This was the `key' element in the Board's consideration of the claims of the respective parties to these appeals and a great deal of evidence, in form of comments from relevant senior level Managers, was obtained by the Board. The conclusions reached by the Board, in this respect, after considering the total evidence were:
(i) In respect of each position under review, both you and the respective provisional promotees were capable of performing the subject duties efficiently.
(ii) Having regard to the skills profile of each position, the weight of the evidence from senior level Managers was conclusive in supporting the view that each of the provisional promotees would perform the subject duties more efficiently than you."
It is accepted by counsel that the Promotions Board of Review was bound to provide natural justice to the persons interested in the appeals which Mr Mair had lodged and thereby to afford procedural fairness. See Kioa v. West (1985) 159 CLR 550; Ainsworth v. Criminal Justice Commission (High Court of Australia, 9 April 1992). The dispute is as to the content of the rules of natural justice in the context of the functions of the Promotions Board of Review.
The content of the rules is variable. As Mason J. said in Kioa v. West at 585:-
"In this respect the expression `procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi (No. 2) (1977) 137 CLR, at p 451, per Jacobs J."
Moreover, the circumstances may be such that the content of the rules may be reduced to nothingness. See Brennan J. in Kioa v. West at 616. However, the nature of the proceedings before the Promotions Board of Review was analogous to that considered by Ellicott J. in Finch v. Goldstein (1981) 36 ALR 287 and by Franki, Davies and Lockhart JJ. in Ansell v. Wells, cited above.
In this context, the content of the rules of natural justice is substantial. The Promotions Board of Review operates in a formal structure to consider appeals lodged against primary decisions. The process is important. The Reserve Bank has an interest in maintaining an efficient Reserve Bank Service. Officers of the Reserve Bank have as a term of their employment the condition that appointments will, in general, be considered at first instance by an Interview Panel and secondly, if an officer is dissatisfied with the primary decision taken after the report of the Interview Panel, then by the Promotions Board of Review.
In Finch v. Goldstein at 299-301, Ellicott J. said:-
"Because the decisions of Promotions Appeal Committees under the Act affect the promotion of individual public servants in the Public Service, I think the proper protection of their rights at least demands that those involved in appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing to the Committee dealing with the matter (cf Dixon v Commonwealth (1981) 3 ALD 289; Hamblin v Duffy (1981) 34 ALR 333; 3 ALD 153; Perkins v Cuthill (1981) 34 ALR 669). ...
On the approach to the Act which I have adopted a Promotions Appeal Committee in a case such as this has two basic duties - to make full inquiries into the claims of the parties and to act fairly to the parties in so doing. It could be said that, in a sense, it has only one duty, namely, to make full inquiries and that its duty to act fairly is implicit in fulfilling that duty because it cannot make full inquiries and that its duty to act fairly is implicit in fulfilling that duty because it cannot make full inquiries into the claims of the parties unless it acts fairly.
In carrying out its duty to act fairly the Committee, as I have already indicated, at least has a duty to ensure that each party knows the case put against him or her and an opportunity to put his or her case to the Committee. ...
The duty of the Committee is to make inquiries into the claims of the parties. In a case such as this, the issue is whether one party (the appellant) is of superior efficiency to the other (the officer promoted) and will inevitably involve weighing one person's efficiency against that of the other. Each is, in my view, entitled to an opportunity to make his or her case on this issue. In order to do so, I think it is fundamental that each be entitled to know in substance what is being put on behalf of the other, for without such knowledge, how could a party adequately put a case that he or she is superior in efficiency to the other. Where as here superior efficiency is the issue the alleged efficiency of one is in a real sense part of what is put against the other."
Likewise, in Ansell v. Wells, Franki J. said at 47:-
"It was not suggested that there was any reason why the whole of the departmental report to the chairman of the Committee should not have been made available to the appellant. In general, unless there is some compelling reason to the contrary, the whole of the departmental report should always be made available to an appellant as long before the hearing as is reasonably practicable. I do not regard the failure to request access to the whole of this report as critical. I agree with the learned judge that the relevant requirements of natural justice were not satisfied in relation to that part of the departmental report which did not deal with the appellant. Merely reading the report to the appellant, instead of providing her with a copy, is not a satisfactory procedure, and, of itself, in this case it may have been a sufficient departure from fair practice to constitute a denial of natural justice. Where the question of comparative efficiency is involved I consider that the substance of matters put forward about or by the `other party' must be known in order to enable each party to put her case. I consider that at least the substance of the written statement by Mr Mungoven and the substance of any relevant oral submissions and answers to questions at the hearing before the Committee should have been available to the appellant. By this I do not mean that a copy of the written statement, or the words of the oral submissions and answers should have been provided to the appellant, but that the substance of anything relevant ought to have been available to her."
At 53, Davies J. said:-
"In the present case, the failure to disclose to Miss Ansell prior to the interview the contents of the report dated 19 August 1977 given by the secretary of the relevant Department to the chairman of the Promotions Appeal Committee led to the very problem which the rules of natural justice seek to avoid. The report summarized the relevant facts and the Department's view of the contending parties. It provided significant material for the Committee to take into account and it expressed a view which strongly favoured Mr Mungoven. There appears to be nothing in the report which could not have been disclosed to Miss Ansell. As to the provisional promotee, Mr Mungoven, the report said: `He was rated a very suitable candidate for promotion to the position in question.'
There was nothing in the report concerning Mr Mungoven which could not have been disclosed. Moreover, there was no reason why there should not have been disclosed to Miss Ansell the fact that, of the original applicants for the position, Mr Mungoven had been placed at the head of the field while Miss Ansell had been placed sixth. Nor does it seem to me that there was any reason why the criticisms or limitations that were stated in the report with respect to Miss Ansell's work should not have been disclosed to her, or to the other party. If Miss Ansell had known of those matters before she had gone to her interview, she would have been fully prepared."
Lockhart J. expressed like views at 62-3. At 64, his Honour said:-
"This confirms to my mind the necessity for Promotions Appeal Committees to ensure that the parties to the appeals before them are informed in advance of the hearing of matters adverse to them. They should not rely on statements by the relevant Department or its officers that parties are aware of relevant criticisms or have been `counselled'. The present case provides a good example. The departmental report of 19 August 1977 states `departmental applicants were counselled on any matters which may have militated against their selection'. This was wrong. Although the appellant may have grasped the essentials of the criticisms when confronted with them during her interview by the Committee, she was nevertheless shocked and surprised by them. In my opinion the failure of the Committee to disclose to the appellant, prior to her interview, the substance of the material before the Committee constituted a breach of the rules of natural justice."
Counsel for the respondents submitted that these cases described only procedures to be adopted in special circumstances. But that is not so. In Finch v. Goldstein and Ansell v. Wells, the Judges described what should be the standard procedure adopted in promotions appeals. Not all the views expressed by Ellicott J. were accepted by the Full Court in Ansell v. Wells. But all the Judges were of the view that, as a matter of standard procedure, the report on the provisional appointment at first instance should, subject to questions of confidentiality, be made available to parties interested in the appeal as soon as practicable and certainly before any hearing or interview occurs during the appellant process.
The reason for this is clear. Unless an appellant and the provisional appointee are informed of the contents of the first instance report, neither will understand fully the factors to which they should address their attention.
It is not sufficient to rely upon whatever might have been said during counselling. Counselling is not part of the appeal process and it is not a function of a counselling session to tutor an appellant or a possible appellant for the purposes of the appeal. See the remarks of Lockhart J. in Ansell v. Wells set out above.
It was said in Finch v. Goldstein and Ansell v. Wells that any other submission put in by an interested party other than the appellant should also be made available to the appellant and likewise the appellants' submissions should be made available to the provisional appointees. This of course is subject to any question of confidentiality. But frequently confidentiality will not be an issue. In the present case, save for the omission of certain material such as the names of the persons who had applied for appointment but had been unsuccessful, no element of confidentiality arose. Yet, the submission which one of the provisional appointees put in to the Promotions Board of Review was not made available to Mr Mair.
The procedure described in Ansell v. Wells should be standard procedure for it overcomes the type of problem and dissatisfaction which otherwise tends to arise. It was notable that the number of applications in this type of matter reduced dramatically once the procedures enunciated in Ansell v. Wells became general practice in the Commonwealth Public Service.
The matter therefore comes down to the issue whether, having regard to what occurred, Mr Mair's application was dealt with fairly from a procedural point of view. Mr Bartholomew thought that it had been for, in his view, Mr Mair seemed to know what the issues were. However, Mr Mair had difficulty grasping intellectually what the issues were for, as he considered himself to be the better candidate, he could not really understand why other applicants had been successful. Disclosure to him of the report of the Interview Panel would have clarified his mind. Mr Bartholomew in his comments did not do so for he did not disclose what had been the substance of the comments of the two referees to whom the Interview Panel had not spoken or go through the points made in the report of the Interview Panel so as to direct Mr Mair's attention to each of the salient issues.
In these circumstances, it seems to me that procedural fairness was not afforded to Mr Mair.
I shall therefore declare that procedural fairness was not afforded to Mr Mair in his appeal and I shall order that the fourth respondent pay the costs of the application.
I shall also reserve liberty to the parties to apply within 7 days for any further order as may seem meet. The order declaring a lack of procedural fairness will not of itself invalidate the promotions which were made. The promotions appeals' system operates as a matter of policy and agreement, not as a statutory scheme. I would not consider making any order invalidating such a promotion without giving an opportunity to the persons who may be affected to be heard. Apart from the issue of authority to do so, there are many circumstances, including the lapse of time and the fact that the persons promoted were those who were considered to be the most efficient officers, tending to show that those promotions should stand. However, liberty will be reserved to the parties to apply for any further order should the making of such an order seem appropriate.
0
9
0