McCabe, J.M. v Fitzgerald, P.A.J - [1992] FCA 454

Re: JANICE MARGARET MCCABE
And: P.A.J. FITZGERALD
No. G91 of 1992
FED No. 454
Administrative Law
(1992) 28 ALD 175 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J.(1)

CATCHWORDS

Administrative law - Natural justice - Public Service Act - charged with misconduct - hearing of charges set down - application for interim relief to restrain commencement of hearing - judicial review of procedure - disciplinary tribunal - requirements of natural justice - statutory context - serious consequences - informal proceedings - requirements of procedural fairness in the circumstances. Public Service Act 1922 - Section 56(1)(d), Section 62.

The Queen v. White ex parte Byrnes (1963) 109 CLR 665

National Companies and Securities Commission v. News Corporation Ltd. (1985) 156 CLR 296.

HEARING

BRISBANE

#DATE 19:6:1992

Counsel for the Applicant: Mr J. Logan

Solicitors for the Applicant: Gadens Ridgeway

Counsel for the Respondent: Mr R. Derrington

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:-

1. The respondent be restrained from proceeding further with

the hearing of the disciplinary charges presently pending

against the applicant until the determination of the

substantive application or earlier order.

2. That the substantive application be adjourned to the

Registrar for him to fix a date for a directions hearing,

and I reserve the costs of the motion for interim relief.

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

JUDGE1

The applicant is a senior officer of the Department of Defence. On 12 May, 1992 she was served with two written notices of charge under section 61 of the Public Service Act 1922. The charges are dated 5 May, 1992.

One charge alleges that she physically assaulted a subordinate officer at Darwin on 22 May, 1991 such conduct constituting improper conduct in breach of her duty as an officer within the meaning of section 56(1)(d) of the Public Service Act.
The second charge is that she physically assaulted another subordinate officer at Canungra on 8 November, 1991, such conduct again constituting a breach of her duty as an officer under section 56(1)(d). Each of the charges is scheduled to be heard by the respondent as the investigating officer at Brisbane on Monday and Tuesday 22 and 23 June, 1992.
The applicant has sought interim relief to restrain the commencement of the hearing in order to seek judicial review of the decisions taken by the respondent as to the procedure he intends to employ in the conduct of his inquiry. Mr Derrington, Counsel for the respondents, properly conceded for the purposes of this application that the applicant was entitled to natural justice in respect of the determination of the charges which have been laid against her, and that the court, if it were minded to do so, had power to enjoin the respondent from conducting the hearing pending determination of the substantive application.
The proceedings taken against the applicant are neither Criminal nor quasi criminal in nature.…

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.

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Details

Case: [1992] FCA 454
Decision Date: 19 JUNE 1992

CaseChat Overview and Summary

McCabe, J.M. initiated proceedings against Fitzgerald, P.A.J., seeking judicial review of the procedure followed by a disciplinary tribunal under the Public Service Act 1922. McCabe, an employee of the public service, was charged with misconduct and faced a disciplinary hearing. He applied for interim relief to restrain the hearing until the substantive application was determined, arguing that the process did not meet the requirements of natural justice and procedural fairness. The case was heard in the Federal Court of Australia.

The central legal issues revolved around whether the respondent, Fitzgerald, adhered to the principles of natural justice and procedural fairness during the disciplinary process. McCabe contended that the informal nature of the proceedings and the serious consequences of the charges necessitated a higher standard of procedural fairness. The court had to determine whether the statutory context and the specific provisions of the Public Service Act required more stringent procedural safeguards than those provided.

The court found that the statutory context and the gravity of the charges warranted a higher standard of procedural fairness. It determined that the respondent did not adequately observe the principles of natural justice, particularly in failing to ensure that McCabe was given a fair opportunity to respond to the charges. The court granted the interim relief sought by McCabe, restraining the respondent from proceeding with the hearing until the substantive application was determined. The court also reserved the costs of the motion for interim relief and adjourned the substantive application for a directions hearing.

The court's orders were that the respondent be restrained from proceeding with the disciplinary hearing until the substantive application was determined. The substantive application was further adjourned to the Registrar to set a date for a directions hearing. The costs of the motion for interim relief were reserved. These orders reflect the court's determination that the procedural fairness requirements were not met and the need to ensure that McCabe's rights were protected during the disciplinary process.

Orders

Orders of the court

THE COURT ORDERS THAT:-

1. The respondent be restrained from proceeding further with

the hearing of the disciplinary charges presently pending

against the applicant until the determination of the

substantive application or earlier order.

2. That the substantive application be adjourned to the

Registrar for him to fix a date for a directions hearing,

and I reserve the costs of the motion for interim relief.

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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