Matthews, T.R. v Oaten, R.D

[1986] FCA 373

Re: TIMOTHY ROBERT MATTHEWS
And: ROBERT DAVID OATEN, ROBIN MICHAEL RUSSELL, GERALDINE RUTH AVENT as
persons constituting a Promotions Appeals Board of the Australian
Telecommunications Commission and AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G63 of 1985
Administrative Law
17 IR 187

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Administrative Law - judicial review - decision of Promotions Appeal Board of Telecom - decision wrong in law and in breach of rules of natural justice because Board did not conduct full enquiry and did not contact applicant's referees - decision made in haste because of pressure of administrative arrangements and convenience - that pressure should not influence decisions.

Telecommunications Act

Administrative Decisions (Judicial Review) Act 1977 Cases

Excell v. Harris (1983) 51 ALR 137

HEARING

ADELAIDE

#DATE 29:8:1986

ORDER

1. The decision of the Board be quashed.

2. The matter of the appeal be remitted to the Promotions Appeals Board differently constituted for resolution.

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

JUDGE1

The applicant was provisionally promoted to a position of Manager Class 8 (Business Sales) - Adelaide Central D.T.B., Customer Services Section of the Australian Telecommunications Commission. One Percy appealed against this provisional promotion to a Promotions Appeal Board ("the Board") of which the first respondent was the chairman and the second and third respondents were the members. Because he was senior to the applicant it is conceded that in order to succeed in his appeal Percy had simply to establish that he was of equal efficiency to the applicant. Percy's appeal to the Board was successful and the applicant now seeks a review under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") of the decision of the Board to allow Percy's appeal. It is not disputed that the applicant is a "person aggrieved" by the decision and that it is a decision to which the Act applies. The applicant thus has status to bring his application (see s.5(1) of the Act).

1. The grounds upon which the application is brought are -
   
   

1. That the decision was wrong in law (s.5(1)(f) of the Act).

2. That a breach of the rules of natural justice occurred in connection with the making of the decision (s.5(1)(a) of the Act).

3. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in all the circumstances (s.5(1)(e) of the Act).

1. Other grounds were stated in the application but later abandoned. Particulars were sought and given prior to the hearing of grounds 1 and 2 and further particulars could be gleaned from the opening of counsel for the applicant which further particulars would support grounds 1 or 2 or 3 or, in some cases, overlap the grounds.

2. Particulars alleged of ground 1 were as follows -
   
   

(i) The refusal of the Board to take into account the statements of one, Scholz, a referee nominated by the applicant.

(ii) The Board adjudicated instead of enquiring and failed to make due enquiries.

1. Particulars of ground 2 were as follows -
   
   

(i) The Board took no evidence from the referees nominated by the applicant.

(ii) The Board took no evidence from one, Delaney, who was a co-signatory with Scholz, of the written statement of reasons of Telecom Australia for selecting the applicant for provisional promotion.

(iii) The Board did not inform the applicant that it had been unable to contact the referees nominated by him.

(iv) The Board did not give the applicant sufficient opportunity to put more evidence before it.

(v) The Board denied the applicant's request for a further hearing.

(vi) The respondent Oaten failed to inform the members of the Board of the applicant's request for a further oral hearing.

(vii) The Board did not permit the applicant to state his experience.

1. The only particulars given properly referable to ground 3 are that the Board took into account irrelevant matters in that it demonstrated an excessive concern with procedural matters and that it failed to take into account a relevant matter in that it did not take into account the statements of Scholz, a referee nominated by the applicant.

2. I deal with the grounds as particularised in order -
   
   1(i). In his response to Percy's appeal the applicant nominated Scholz and one, Taylor, as referees pursuant to the Board's invitation to do so. Scholz had signed an internal minute to the Chief Manager of the Human Resources Department of Telecom Australia setting out the views of the selection panel which chose the applicant for provisional promotion. The minute sets out the views of the selection panel on the applicant and Percy and assesses each against various selection criteria which are conceded to be the correct ones. Scholz signed this minute "for Chief Manager, Operations". It was also signed by one, Delaney, and under his signature are typed the words, "Customer Services Adelaide Central". Oaten was of the opinion that Scholz was not a proper referee for the applicant because he had signed this minute. In this I consider that Oaten was mistaken. The minute plainly sets out the views of the selection panel and not those of Scholz and Delaney, although as it happens, Scholz appears to be in substantial agreement with the views expressed. However this may be and even if the minute were Scholz's minute in the sense that he was its author and the views were put forward as his views, I am unable to see that he would, as a consequence, be disqualified from acting as a referee.

3. Oaten did decide that the Board should speak to Scholz, not as a referee, but as a signatory to the minute, in order that Scholz might be asked to provide some evidence to support the conclusions of the minute favouring the applicant over Percy. Oaten held a telephone conversation with Scholz by means of a conference telephone which enabled the two other members of the Board to hear and contribute to the conversation. In the course of this conversation Scholz gave his opinion of the applicant and gave a very laudatory account of him against the five selection criteria. He and Oaten both lost their tempers to some extent and voices were raised. Although Scholz was not approached as a referee he did in fact give the sort of account of the applicant which a favourable referee might have been expected to give. It is argued by the applicant that to approach Scholz in a somewhat critical way and as a signatory to the minute, rather than as a referee, may have altered the way in which he responded to questions about the applicant and that the fact that Scholz lost his temper may have affected the weight given to his favourable account of the applicant. The short answer to these two arguments is that there is no evidence that either of these things happened. Mistaken Oaten may have been, but the evidence is that the Board heard and considered Scholz's views about the applicant. Whether or not the Board came to a conclusion which is objectively correct is not my concern.

1(ii). Section 51(4) of the Telecommunications Act 1975 is as follows -

"(4) Upon an appeal or appeals being made against a provisional promotion, a Promotions Appeal Board shall make a full inquiry into the claims of the appellant or appellants and the claims of the officer provisionally promoted and determine the appeal or appeals."

1. It is argued that the Board did not make a "full" or indeed any enquiry in the proper sense, but merely adjudicated between the claims of Percy and the applicant. There is force in this argument. Apart from the conversation with Scholz and the interview of the applicant, the Board made no enquiries at all into the claims of the applicant, the officer provisionally promoted. No efforts were made to discover the identity of the applicant's recent supervisors and question them. No effort was made to get the selection panel to justify, or amplify, its reasons for selecting the applicant. No proper efforts were made to speak to the applicant's nominated referees, a topic I deal with later.

2. In the course of the evidence of the respondent Russell, it emerged that the Board made some unspecified enquiries into critical remarks made about the appellant Percy. I presume that these critical remarks were some of those made in the minute to which I have referred but this is not clear. Whatever the source of this criticism the Board apparently took steps to make enquiries into it and satisifed itself that some at least of the criticisms, if not all, were invalid. So far as the applicant is concerned, the favourable minute concerning him was rejected by the Board as being biased because it seemed unduly favourable to him and because he was referred to by his Christian name and Percy was not. The minute was discounted by the Board without making any further enquiries which, quite apart from any considerations of fairness, it was obliged by statute to make.

3. The question of lack of procedural fairness and an error of law overlap to some extent. In Excell v. Harris (1983) 51 ALR at 165.1 Neaves J. says -
   
   

"As it was, in effect, the selection panel's views which the Promotions Appeal Board was charged with reviewing, I would have expected the Board to have made its own inquiries on such personal characteristics particularly when one appreciates how difficult it can be to gain a correct assessment of a person at an interview of some half hour's duration."

I respectfully agree with what his Honour there says. In the present case the Board not only made no enquiry of the selection panel but discounted its minute without enquiry. In this I consider that the Board was guilty of an error in law and of a failure to accord procedural fairness.

2(i). The referees. As I have said, the applicant nominated Scholz and Taylor as his referees. On the day after his interview, that is on the morning of Friday 16 August 1985, the applicant spoke to the office manager of the Board, Mrs Walker, and nominated a further referee, one Wicks. I have mentioned the Board's contact with Scholz. Taylor was away in Queensland on duty from 15 August 1985 and then took a holiday in Queensland and returned to Adelaide on 26 August 1985. There was no evidence of any serious attempt to get in touch with Taylor, although Oaten did say that he had a vague recollection of an interstate telephone call being made. The other two Board members said nothing of Taylor. So far as Wicks is concerned, the Board attempted to telephone him at his office some time after 5.00 p.m. on Friday 16 August. The attempt was unsuccessful and Oaten, who was conducting the telephone call on the conference telephone in the presence of the other Board members, left no message at all with the woman who answered the telephone and said that Wicks was not there. On the following Monday morning another attempt was made by the Board to speak to Wicks. When Oaten telephoned Wicks' office he was told that Wicks was on leave. Once again no message was left, Oaten did not identify himself or state the purpose of his call and made no request for Wicks' home telephone number. It turned out that Wicks had taken leave urgently because his wife became ill and was at home and could have been easily contacted there by telephone.

1. As a matter of practice the office manager of the Board, Mrs Walker, sends to each party to an appeal a form letter with accompanying explanatory notes. Included in the letter is para. 5 as follows -
   
   5. Referees.
   

"As the Board may wish to discuss your claims with referees you should include the names of up to, say, three referees in your supporting statement."

It is pointed out by the respondents that this paragraph says that the Board may wish to discuss claims with referees. The applicant took the view that referees were important to him and informed the Board so. He was, in my view, reasonably entitled to expect that the Board would make proper efforts to speak to his referees. This expectation, coupled with the statutory duty to make full enquiries, required the Board to make something more than its desultory efforts to speak to the referees nominated by the applicant. I may say that if, either after making a proper effort to speak to the referees, or after the sort of effort that was made here, the Board was unable to speak to the referees, it should have informed the applicant so that he might either substitute other referees or help the Board to get in touch with the existing referees.

2(ii). As I have already said I think that having misgivings about the minute of the selection panel signed by Scholz and Delaney the Board should have questioned the panel about its report incorporated in the minute. I cannot see much point in seeking evidence from Delaney.

2(iii). I have dealt above with the Board's failure to inform the applicant that it was unable to contact the nominated referees.

2(iv), (v), (vi). The applicant complains that he was not given sufficient opportunity to put evidence before the Board. The applicant tendered his personal statement in writing and was later interviewed by the Board for a period of longer than an hour and possibly as long as an hour and a half. Oaten told the applicant that in his opinion the applicant's personal statement was a little thin and did not set out sufficient details of his previous experience. The applicant says that he was not given an adequate opportunity to give the details apparently required by the Board. Having heard the applicant and the members of the Board, particularly Oaten, the chairman, I am satisfied that the applicant was given an opportunity to give the details required and, in fact, did so. At the end of the interview Oaten asked the applicant if there was anything further he wished to put to the Board and the applicant declined to do so. I have no reason to suppose that Oaten was anything but genuine when he made this offer.

1. I think that after the event the applicant, when mulling over the interview, came to the conclusion that he had not acquitted himself very well and that further consideration has convinced him, wrongly as I find, that he was not given a proper opportunity to put his case.

2. On the day after the interview, the applicant telephoned the Board and spoke to Mrs Walker and asked to speak to Oaten. Mrs Walker passed the message to Oaten who was about to embark on another hearing and told Mrs Walker to find out what the applicant wanted. It transpired that the applicant simply wished to give the name of Wicks as a referee and he gave this name to Mrs Walker. During the ensuing weekend the applicant came to the view that he had not done very well at the interview and he made up his mind that he would like the interview to be reopened so that he might put further submissions to the Board. With this in mind he telephoned the Board on Monday morning and spoke to Mrs Walker again. I find that whatever his intention may have been he did not ask for a reopening of the interview or an opportunity to put further evidence but said simply that if the appeal were likely to go against him he would like to speak to Oaten, but if it were not, then he did not wish to do so. After consulting the Board, Oaten told Mrs Walker to tell the applicant he did not wish to speak to him,

3. I have found that the applicant did not ask Mrs Walker for a further hearing by the Board. Even if he had done so I do not think he was entitled to such further hearing. The applicant is an experienced officer of Telecom of some seniority. I do not consider that he, or indeed any party to an appeal, less experienced and less senior, should be entitled to a further hearing simply because on reflection he considers that he has not done very well at the first hearing and would like to put some more fact or argument. Whatever procedural fairness may demand it does not, in my opinion, demand that a party to an appeal should, after a hearing and having had an opportunity to put evidence and argument and being made a final offer in the terms of the offer made by Oaten, have the interview reopened. If the applicant had asked for such a reopening and it had been refused I cannot say in the present circumstances that such a refusal would have been wrong.

4. Since I have found that no request for a reopening was made Oaten had no obligation to inform the members of the Board of such a request. Grounds 2, 3, 4 and 5 fail.

2(vii). I have found that the Board gave the applicant an adequate opportunity to submit whatever he wanted to submit so this ground also fails.

3. So far as ground 3 is concerned there is no satisfactory evidence that the Board demonstrated an excessive concern with procedural matters and no argument was submitted as to this. So far as Scholz is concerned although the Board was wrong not to regard Scholz as a proper referee the evidence satisfies me that in fact Scholz expressed his views about the applicant to the Board which duly considered those views.

1. There is evidence that the Board was under some pressure from Telecom to make its decision promptly so that whoever was successful in the appeal could attend a course or seminar of some sort. This pressure may well have caused, or at least contributed to, the fact that the Board did not make proper efforts to speak to the applicant's referees and did not make proper enquiries. In general terms administrative arrangements and convenience should not be allowed to influence a proper carrying out of the appeal process. There may well be differing views as to the usefulness of the whole appeal process but so long as the process exists it must be carried out with proper regard to the rights and reasonable expectations of the parties to any appeal.

2. The applicant is entitled to the order for review which he seeks on the ground that the failure of the Board to make contact with the referees nominated by the applicant and its failure to inform him of this failure amounted both to an error of law and a breach of the rules of natural justice and that the failure to make a full enquiry was an error of law.

3. The application is allowed and the decision of the Board is quashed and the matter of the appeal is remitted to a Promotions Appeal Board differently constituted for resolution according to law.