McGibbon v Linkenbagh
[1996] FCA 18
•2 FEBRUARY 1996
CATCHWORDS
ADMINISTRATIVE LAW - natural justice - procedural fairness - Disciplinary Appeal Committee - refusal to grant adjournment - adjournment necessary to acquire legal representation - Committee's refusal based on undisclosed process - applicant not given opportunity to respond - whether refusal "conduct" - documents not delivered within seven days of proceeding - whether reasonable opportunity to prepare for hearing - whether Committee could direct a more severe penalty
STATUTES - Interpretation - s63D Public Service Act - decision appealed from is direction made - power to "vary" - power to increase severity of direction
Administrative Decisions (Judicial Review) Act 1977 ss6(1),3(1),5(1),16
Merit Protection (Australian Government Employees) Act 1984 ss7,16,37
Merit Protection (Australian Government Employees) Regulation reg20(2)
Public Service Act 1922 ss63D(2),(3)
Public Service Regulations reg145(2),(6),(7)
Richards v Watson (1986) 11 FCR 515 Appl
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Appl
"A" v The Veterans' Review Board (1995) 38 ALD 315 Appl
Kioa v West (1975) 159 CLR 550 Cons
Kanda v Government of the Federation of Malaya [1962] AC 322 Refd
R v Thames Magistrates' Court ex parte Polemis [1974] 2 All ER 1219 Refd
Secretary, Department of Social Security v Willee (1990) 96 ALR 211 Cons
Sullivan v Department of Transport (1978) 20 ALR 323 Cons
Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 Refd
Shadforths v Human Rights Commission (1991) 32 FCR 303 Refd
Opitz v Repatriation Commission (1991) 29 FCR 50 Refd
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Refd
Tickner & Ors v Chapman & Ors (unreported decision of the Full Federal Court, 7 December 1995) Refd
Colpitts v Australia Telecommunications Commission (1986) 9 FCR 52 Refd
Somaghi v Minister for Immigration (1991) 31 FCR 100 Refd
Family Radio Ltd v Australian Broadcasting Tribunal (1991) 28 FCR 584 Refd
Dietrich v The Queen (1992) 177 CLR 292 Refd
New South Wales v Canellis (1994) 124 ALR 513 Refd
Williams v Official Trustee (1994) 122 ALR 585 Refd
Geoffrey Patrick McGibbon v Maria Linkenbagh, Kel Robertson and Susan Kinley and Secretary Department of Public Administration
No. ACT G 22 of 1994
Kiefel J Brisbane 2 February 1996
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 22 of 1994
BETWEEN:
GEOFFREY PATRICK McGIBBON
Applicant
AND:
MARIA LINKENBAGH, KEL ROBERTSON and SUSAN KINLEY
First Respondents
AND:
SECRETARY, DEPARTMENT OF PUBLIC ADMINISTRATION
Second Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 2 February 1996
WHERE MADE: Brisbane (Heard in Canberra)
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The decision of the Disciplinary Appeals Committee made on about 8 March 1994 directing that the applicant be dismissed from the Public Service be set aside.
Either party be granted liberty to apply for any further consequential orders that may be necessary, such application to be within twenty one days of today.
The second respondent pay the applicant's costs of and incidental to the appeal not including costs associated with written submissions following the adjournment.
The applicant pay the second respondent's costs of and incidental to the preparation of those written submissions.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 22 of 1994
BETWEEN:
GEOFFREY PATRICK McGIBBON
Applicant
AND:
MARIA LINKENBAGH, KEL ROBERTSON and SUSAN KINLEY
First Respondents
AND:
SECRETARY, DEPARTMENT OF PUBLIC ADMINISTRATION
Second Respondent
CORAM:Kiefel J.
DATE:2 February 1996
PLACE:Brisbane (Heard in Canberra)
REASONS FOR JUDGMENT
The applicant seeks review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), of the decision of the first respondents, established as a Disciplinary Appeal Committee under s.16 of the Merit Protection (Australian Government Employees) Act 1984 for the purpose of the appeal brought by Mr McGibbon under s.63D(2) of the Public Service Act 1922. The decision appealed from directed that Mr McGibbon's public service classification be reduced, consequent upon finding two charges proved. The Committee, by a majority, varied that decision and directed instead that he be dismissed from the service.
Mr McGibbon had been the manager of a swimming pool in respect of which a cleaning contract had been granted to a Mr Stevenson. The charges concerned Mr McGibbon's interest in that contract and his supervision of the work carried out under it. It was alleged he was aware that the contractor was unable to carry out his duties and that he failed to inform his employer of that fact and of the fact that his wife was employed for wages by the contractor. Mr McGibbon's credit-worthiness played a part both in the findings by the Committee that the charges were made out and in its decision to direct that he be dismissed from the service. With respect to penalty the Committee took the view that the direction given by the officer conducting the inquiry, that he be reduced in classification, was not a course open to it. That seems the correct view. The Committee, in directing the more severe action, must also have considered that there were not the mitigating circumstances of which the inquiry officer had adverted to.
The inquiry process in 1992 and 1993 was a lengthy one and it concerned events which had taken place between 1976 and 1983. A decision in it was not given until October 1993. Throughout this period, the correspondence discloses, Mr McGibbon had solicitors acting for him. The appeal then brought by him was upon the ground that the charges should have been dismissed: s.63D(2)(a)(i) Public Service Act 1922. Section 63D(2)(a) permits, in the case of a charge of misconduct, an appeal to be brought on either that ground or upon the ground that the action directed to be taken in relation to the charge is unduly severe, or upon both those grounds. Mr McGibbon did not rely upon the ground relating to penalty.
Review is sought of the decision of the Committee directing dismissal and of aspects of its conduct in the hearing. In the former respect it is submitted that the Committee had no power to make the direction it did. Alternatively it was argued that, in arriving at that decision, it took into account considerations which were irrelevant and that it failed to apply a standard of proof required in relation to serious misconduct. As to the first I consider that the Committee had power to direct that the action taken be more severe in its consequences. The basis for the submission to the contrary was that Mr McGibbon had, by appealing only one ground and not that relating to penalty, narrowed the jurisdiction of the Committee. Section 63D(3) of the Public Service Act provides that, with respect to any appeal under sub-s.(2), a Disciplinary Appeals Committee "may confirm, vary or set aside the decision against which the appeal is made". The power to "vary" is, it seems to me, a wide one and includes the power not only to reduce but to increase the severity of the action directed to be taken. I respectfully concur with the view taken by Neaves J in Richards v. Watson(1986) 11 FCR 515, 525 that the "decision" against which the appeal is brought is the direction made, and this is confirmed by the words of sub-s(4) following.
It is convenient to consider first those grounds relating to the process of the hearing and which are said to amount, in a number of respects, to a denial of procedural fairness. They relate to the request for an adjournment made by Mr McGibbon at the beginning of the hearing for the purpose of allowing the preparation of his case by his legal representatives and in circumstances where he and his solicitor had only recently
been made aware of the hearing dates and had been provided with a large number of documents very close to the hearing.
The appeal was set down for hearing for three days commencing on 2 February 1994, although when Mr McGibbon had first been advised of those dates was a matter of some controversy. Mr McGibbon appeared unrepresented and sought an adjournment for three weeks, to a time when his solicitor was able to appear for him. He sought to provide the Committee with a letter from his solicitors but the Convenor, for reasons not readily apparent, refused to accept it. He then told the Committee that the first he had known about the dates for hearing was when his solicitor contacted him a week before. Mr McGibbon now says that he did have a conversation with someone from the Merit Protection Review Agency the week before, when they contacted him to ask where documents to be used in the hearing ought be delivered. After directing them to his solicitors he asked, and was told, when the matter was to be heard. This was not mentioned to the Committee when the adjournment was requested. Whether he then advised his solicitors and left the matter with them is not a matter for me to determine on an application for review. The documents referred to, more than 600 pages in total, were contained in two arch-lever files. Two such files were delivered to his solicitors on 25 January 1994, and it appears that it was not until the 28th that they were able to contact Mr McGibbon. They were then however committed to other work and were unable to appear for him on the dates set for hearing. In error the two volumes of documents sent were both copies of Volume 1. Volume 2 was not provided to the solicitors until 1 February 1994, the day before the commencement of the hearing. That volume contained
some 36 documents which comprised some 249 pages. One can infer, by the nature of some of the documents and the correspondence in Volume 2 that Mr McGibbon would have earlier seen some of these but there would be doubt about others such as records of interviews and statements. The need for such a large number of documents in what appears essentially to have been a case turning upon credibility may be partly explained by the parties', and the Committee's, view that the matter was a relatively complex one and one where the charges related to events ranging over some years and in respect of which there had been considerable investigation during which a number of statements were obtained.
Mr McGibbon gave as his reasons for requiring an adjournment that he desired legal representation, that he believed the documents late delivered contained some highly prejudicial information which he had not had the opportunity to fully consider and that he wished to call a large number of witnesses. The solicitor appearing for the Department did not oppose the adjournment, given that the service of the documents was late and contrary to the requirements of Reg145(2) to the Public Service Act. That regulation requires that documents to be used on an appeal be served, where practicable, at least seven days before the hearing is to commence. The discussion which then ensued discloses the Convenor's concerns with when Mr McGibbon had first been advised of the hearing dates and whether there were documents which caused him "serious concerns or reason to need time to look into them". It is not clear from the transcript the extent to which the members of the Committee were themselves familiar with the documents and the possible implications they might have in Mr McGibbon's conduct of his case. Mr
McGibbon, after complaining that he had only had the opportunity to briefly peruse the documents since their receipt the day before, was pressed on a number of occasions to point to those he had not previously seen and which might show that he was prejudiced. Having had the obligation to prove he was unable to proceed cast upon him and, after persistent questioning by the Convenor, Mr McGibbon finally commented " at this stage on such short notice there is nothing in those documents I can perceive that I have any real problems with." Counsel for the respondents relied upon this as a concession by Mr McGibbon such that he could not now be heard to say that he was not able to properly prepare his case. But at best it is equivocal, given his earlier statement that he had not read all the documents and that the concession resulted from pressure applied by the Convenor who, clearly enough, desired the proceedings to continue. The transcript does not disclose any detailed examination or consideration of the documents by the Committee. The decision, not to grant the adjournment, was said to be partly based upon Mr McGibbon having said he was "not prejudiced" by their late delivery, which the Convenor then corrected to a conclusion by the Committee to that effect but without providing further reasons. From what follows, it is abundantly clear that the refusal was based upon a view arrived at by the Committee that Mr McGibbon had not been truthful about when he had first been told of the hearing dates and that he had in fact known of them for several months, since November 1993, and had taken no steps to ensure his preparedness or to arrange for representation.
The Convenor questioned Mr McGibbon about the letter written by his solicitor, Mr Higgins, to the Merit Protection Review Agency on 28 January 1994, which
appears to have been amongst the Committee's documents, in which he advised that documents were first delivered to his office some three days before but that they had only just been able to contact Mr McGibbon and sought an adjournment. In the course of the explanation offered in the letter the solicitor said:"Today we made contact with him and he advised that he wished the writer to appear for him on the hearing commencing next Wednesday. Unfortunately, we had to decline due to other commitments entered into because the writer was unaware of the proposed hearing. It appears that when Mr McGibbon received the letter advising him of procedures and the hearing date, he had assumed we too had been informed. This was not the case - presumably because he had lodged the appeal himself."
Mr McGibbon denied he had received any letter advising of hearing dates. At the Convenor's suggestion he was then sworn as a witness and under cross-examination by the Convenor denied he had given instructions in the terms contained in the letter. Inferentially he denied receipt of a letter dated 15 November 1993, a copy of which the Convenor had produced from the Agency's file. It was addressed to him at a post office box and advised of the hearing dates. Although his answer to the direct question as to its receipt was cut off by the Convenor's enquiries as to why he had not, in the following months, made an enquiry of the Agency as to whether hearing dates had been allocated, he had earlier denied receipt of any letter informing him of hearing dates.
Before retiring for a short period to consider the matter, and during the discussions I have referred to, the Convenor had advised Mr McGibbon that it was the view of the Committee that it could impose a "more severe direction" even though he had not sought, by his grounds of appeal, to raise questions as to the question of the action to be taken. Mr McGibbon, following further explanation, appears to have understood that
he was being told that the Committee could direct his dismissal. It does not however seem to have been a possibility he had considered or been advised of.
On the Committee's return the Convenor informed the parties that the adjournment sought was refused but that a short adjournment, to the following morning, was allowed. The bases of the Committee's decision were, firstly, that they believed that Mr McGibbon had received a letter dated 15 November 1993 advising of the hearing dates and, secondly, that they had concluded he was not prejudiced by the late receipt of the documents in the second folder. The Convenor had, during the recess, telephoned the solicitor, Mr Higgins, and made some further enquiries. The Convenor informed Mr McGibbon that:
"I have spoken to Mr Higgins on the telephone and the information before the Committee about your receipt of that letter on 15 November is, to say the least, totally unsatisfactory and leads us to the conclusion that in fact you did know about this hearing date prior to last week and that you in fact did receive that letter."
What Mr Higgins had said was not further elaborated upon and no response to it was sought from Mr McGibbon. In the later written reasons of the majority of the Committee the conversation and the inferences which were drawn from it are gone into in more detail. Whilst one may have already concluded, from what had been said to Mr McGibbon in refusing the adjournment, that the conversation with Mr Higgins played an important part in that decision, the written reasons disclose that it formed the basis for refusing the adjournment. In explaining the letter of 28 January the solicitor had confirmed Mr McGibbon's advice that the letter was not based upon instructions as to the facts. The solicitor said that the reference to Mr McGibbon having possibly received a
letter advising of hearing dates was assumed by him because he had seen a letter in the Department's documents notifying of the hearing dates and he had thought that Mr McGibbon must also have received one. The only letter the Committee could find in the Department's documents was a copy of the letter of 15 November 1993, in the same terms sent by the Agency to the Department and, more importantly, it was contained in Volume 2 of the documents which of course had not been provided until 1 February. The Committee then reasoned that the solicitor himself, despite his assertions to the contrary, knew of the hearing dates before he wrote the letter of 28 January and he could only have known this if he had been told by the Appellant and then went on "as there is no evidence of any notification of dates to Mr Higgins by other means, we find that the appellant did receive the MPRA's letter of 15 November 1993 and he told Mr Higgins of the date". There was another letter advising of the hearing dates and venue, that of the same date as Mr Higgins' letter of 28 January 1994 and to which he was then responding. Whether it afforded an explanation is not however relevant since the process to be undertaken is concerned with the conduct of the Committee and not whether they were correct in their factual conclusions. The applicant's point is that neither he nor his solicitor were given an opportunity to respond, to explain or to correct the view reached by the Committee by an undisclosed process. As a result, it is submitted, he was denied an adjournment and had findings of credit made against him at an early stage.
It was not suggested by the first respondents that the matters raised could not be grounds for review under the ADJR Act and it was accepted by their submissions that the Committee was under an obligation to ensure fairness in the procedures it adopted. Since Australian Broadcasting Tribunal v. Bond(1990) 170 CLR 321 it would not however be correct to approach the matter as one reviewing the decision not to grant the adjournment It is not a "decision" of which s3(1) and s5(1) ADJR Act speaks, since it is neither final nor determinative of a substantive matter. Although one is tempted to conclude that in a sense it has some operative effect and carries with it findings adverse to Mr McGibbon, it is to be seen as merely procedural and intermediate and as such is to be viewed as conduct engaged in as a step towards and for the purpose of the later "decision". Mason CJ in Australian Broadcasting Tribunal v. Bond337-8, said:
"If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of "conduct" than with the notion of "decision under an enactment."
and at 341, 342:
"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character."
In "A" v. The Veterans' Review Board(1995) 38 ALD 315 Hill J. considered that that Board's determination to refuse to reconvene to enable the applicant to be heard further to be reviewable conduct. The refusal to grant an adjournment is therefore conduct to which s.6(1) refers and the grounds referred to in paragraphs (a) and (b) of that sub-section, namely that there were breaches of the rules of natural justice in connection with that conduct and that there was a failure to observe procedures required by law are apposite to the complaints made.
It is clear that the Committee was bound by the rules of natural justice and it was required to ensure fairness in the conduct of the proceedings. Mr McGibbon faced the possibility of dismissal from the Public Service and the effect of that upon his reputation and livelihood was such as to attract that duty: see Kioa v. West(1975) 159 CLR 550, 584, 628-9. It is not difficult to conclude, given those factors, that what that required of the Committee was that it ensure that Mr McGibbon have a reasonable opportunity to prepare and present his defence and to comment upon matters which fell for determination and which may be adverse to his interests: see Kioa v. West582, 628-9; Kanda v. Government of the Federation of Malaya[1962] AC 322; R v. Thames Magistrates' Court, ex parte Polemis [1974] 2 All ER 1219. It seems to me, nothing arising from a consideration of the nature of the hearing and the rules as to procedure under which the Committee was acting (Kioa v. West, 584) detracts from that obligation.
Section 37 of the Merit Protection Act provides that the procedures of a Review Committee, which is defined by s.7 to include a Disciplinary Appeals Committee, are in its discretion; that it may make inquiries it considers necessary; that it is not bound by the rules of evidence and that proceedings before it are to be conducted with as little formality and technicality and as quickly as a proper consideration of the matter permits. It is to be remembered, however, that the section applies to a number of Committees which deal with subjects including promotion and retirement which, whilst important to those concerned, do not have the consequences that some disciplinary proceedings do. So far as the goal of efficiency is concerned the Convenor had observed that it would be difficult to reconvene the Committee. However, given the seriousness of the charges it does not seem to me that a Committee could elevate this goal such that opportunity for proper presentation of a case is eroded.
Although the Courts caution against applying a judicial model of proceedings into administrative hearings, disciplinary proceedings may differ markedly from administrative inquiries, not only because they are concerned with grave charges relating to conduct but by the mode by which the charges are heard. Foster J. in Secretary, Department of Social Security v. Willee(1990) 96 ALR 211, 219-20 concluded by reference to guidelines published by the agency with respect to the conduct of such proceedings that the appeal is by way of re-hearing with the case being first presented against the person charged. His Honour considered this gave rise to an obligation to make out the case. I was not referred to any guidelines but the procedure outlined was that in fact followed in this appeal and it is consistent with some provisions. There are two provisions of particular relevance here. Regulation 20(2) to the Merit Protection Act provides that a party to a proceeding before a Disciplinary Appeal Committee may be
represented by a legal practitioner or some other person. And, as I have earlier noted, Reg145 to the Public Service Act provides that documents to be used in the hearing are to be furnished, here to the appellant Mr McGibbon, at least seven days before a hearing. Sub-regulations 145(6) and (7) then provide:(6)Where, in relation to a proceeding before a Board of Inquiry or a Disciplinary Appeal Committee, a charged officer, appellant or person requesting a review has not been furnished with a copy of a document that is intended to be used in the proceeding or has been furnished with that document less than 7 days before the proceeding commenced, a person shall not use that document in that proceeding unless he has:
(a)notified that Board or Committee accordingly; and
(b)furnished that Board or Committee with that document and with the reasons for not furnishing, or for furnishing less than 7 days before the proceeding commenced, the charged officer, appellant or person requesting a review, as the case requires, with a copy of that document.
(7)Where a Board of Inquiry or Disciplinary Appeal Committee hearing a proceeding is notified under subregulation (6) that a charged officer, appellant or person requesting a review has not been furnished with a document or has been furnished with a document less than 7 days before that proceeding commenced, that Board or Committee may, after consideration of the contents of the document and of the reasons furnished to it under paragraph (6)(b), subject to subregulation 16(3) of the Merit Protection (Australian Government Employees) Regulations:
(a)order that the document be furnished or shown to that charged officer, appellant or person requesting a review before it is used in that proceeding;
(b)where the document is a document to which subregulation (3) applies - order that the document be furnished to a medical practitioner nominated for the purpose by the charged officer, appellant or person requesting a review, as the case may be;
(c)order that the document not be used in the proceeding; or
(d)permit the document to be used in that proceeding;
and in so doing may make such orders in relation to the furnishing of that document to the charged officer, appellant or person requesting a review (including, without limiting the generality of the foregoing, orders adjourning the proceedings) as that Board or Committee thinks fit".
These provisions tend to confirm a conclusion arrived at by reference to the serious nature of the charges and their possible consequences, namely that the Committee was obliged to ensure that Mr McGibbon had had sufficient time to understand the case being brought against him and the documents relied upon in support of it and to prepare his case to meet it.
A refusal to grant an adjournment can constitute a denial of procedural fairness, where it deprives that party of the opportunity of adequately presenting his or her case: Sullivan v. Department of Transport(1978) 20 ALR 323, 343; Blazevski v. Judges of the District Court of New South Wales noted at (1992) 29 ALD 197; Shadforths v. Human Rights Commission(1991) 32 FCR 303; Opitz v. Repatriation Commission(1991) 29 FCR 50. There was, as the Committee observed, two relevant matters necessary to be considered: when he first knew of the dates for hearing and whether the late receipt of the second volume of documents, additional to those received by him only on 28 January, meant that the possibility of his being prejudicial in his preparation for the case was real. Another factor which would have been obvious to the Committee was that he suffered under a misapprehension as to its powers, if findings were adverse to him and that he needed to consider his position and the need for any
evidence to found submissions as to why they ought not direct dismissal. I do not think that of itself it could be said to require an adjournment of some weeks or even days. It could have been attended to in the process of the hearing. It seems to me that even if the Committee had doubts about his assertions, that he had insufficient notice of the hearing to prepare, that could not overcome the problem created by the documents which were obviously important enough that the Department did not wish to proceed without relying upon them and such that its own solicitor conceded the need for an adjournment. In my view it must follow that he had not had the opportunity to prepare which fairness demands and that therefore there had been a breach of the rules of natural justice "in connection with the conduct" (s.6(1) ADJR Act), "the conduct" being the refusal itself: ABT v. Bond 337, 341-2; Chan v Minister for Immigration & Ethnic Affairs(1989) 169 CLR 379, 386. In this sense the breach occurs as a result of the conduct. In what follows in these reasons it is also necessary to consider "conduct" which precedes the refusal as grounds for review.
The first respondents submitted however that, as Deane J. pointed out in Sullivan, 343, fairness required only that the Committee ensure he had a reasonable opportunity to present his case, not that it ensure he has taken the best advantage of that opportunity. In this respect, it was submitted, the Disciplinary Appeals Committee had made findings, the correctness of which was not the subject of review. In my view however that does not conclude the matter since review of the procedures undertaken and of the methods by which the Committee informed itself of the facts relevant to a grant or refusal is available under s.6(1)(a) and (b) ADJR Act.
Regulation 145 to the Public Service Act the relevant parts of which are set out above, makes clear what steps the Committee is to take when a party is furnished with documents late. Relevantly, it is required to consider the contents of the documents before determining what was the appropriate course. That regulation is concerned to ensure fairness in disciplinary proceedings by requiring the Committee to know and appreciate the contents of the documents. This follows from what is meant by "consideration": see Tickner & Ors v. Chapman & Ors (unreported decision of the Full Federal Court, 7 December 1995). The purpose of such a requirement to a Disciplinary Appeals Committee is to enable it to understand what import and effect the documents have upon the ability of the party charged to proceed with the case and then what steps should be taken including whether further time for their consideration should be allowed. As I have said, there is nothing to indicate that the Committee had any level of appreciation. Rather, one infers, the Committee acted upon the "concession" which had been extracted from Mr McGibbon, itself unreliable given the time he had had. It seems to me therefore that the Committee failed to follow procedures required to be observed by it in connection with its ultimate decision-making: s.6(1)(b) ADJR Act.
With respect to the view reached by the Committee, that he had known of the hearing dates for some months and simply done nothing, it gave no opportunity to Mr McGibbon to comment upon, refute or explain what it had been told by his solicitor nor that which the Committee had itself pieced together. No doubt what would have then been required was an adjournment, for it seems to me Mr McGibbon would have been entitled to require that his solicitor be called to give evidence. The Committee was obliged to afford Mr McGibbon the right to be heard on his application for adjournment, which itself carried serious consequences as to the effective presentation of his case and the consequence of an adverse finding of credit which might affect the Committee's views as to the evidence relating to the charges. It has been said that if the right to be heard is to be worth anything, it must carry with it the right to know the case against him and any critical issue or factor on which the decision was likely to turn: Kanda v. Government of the Federation of Malaya, 337; Kioa v. West586-7, 628-9; Colpitts v. Australia Telecommunications Commission (1986) 9 FCR 52, 69-70; Somaghi v. Minister for Immigration(1991) 31 FCR 100, 108, 119.
It was submitted that the provision of one day's adjournment sufficed. It is true that some breaches of natural justice occurring in the course of an inquiry, and the harm occasioned by them, can be remedied: see Family Radio Ltd v. Australian Broadcasting Tribunal (1991) 28 FCR 584, 593.
I am however unable to conclude that it did have that effect given the extent of the documentation to be absorbed and nothing in the transcript of what followed permits such a conclusion. As I have earlier observed, this was not the only matter to be attended to in the time allowed given that he had only just appreciated that the appeal would deal also with penalty. It was also submitted that Mr McGibbon had not availed himself of the opportunity offered by the Convenor to renew his application for an adjournment at the conclusion of the Department's case. Given the Convenor's comments thus far, it would
clearly enough have been futile, and in any event an adjournment granted then could not redress the problems already encountered in the conduct of his case.
Lastly, it was submitted that I ought not make an order quashing the decision since Mr McGibbon now concedes that he was advised of the hearing some two weeks before its commencement Orders under s.16 ADJR Act are discretionary. It cannot however be said that his failure to advise the Committee of that fact led to the refusal, which was based upon Mr McGibbon having known of the hearing dates for some months. It would not have overcome the problems created by late service of the documents.
Because of the views I have taken of the refusal, having the effect that Mr McGibbon was denied an opportunity to properly defend himself, I have not dealt with the submission by his Counsel that the Committee was bound to ensure that he had legal representation. Whilst Reg20(2) of the Merit Protection Act would prevent the Committee refusing to allow his chosen representative to act for him in the appeal, it does not itself create a higher obligation to ensure that in all cases a person charged has representation. The principle established by Dietrich v. The Queen(1992) 177 CLR 292 as to the use of a Court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v. Canellis(1994) 124 ALR 513, 522; Williams v. Official Trustee (1994) 122 ALR 585, 600. It is not authority for the proposition that in other proceedings or inquiries such a step would be required by
dictates of fairness, even where someone faced potentially serious consequences. In any event in most cases, as here, I would think that if a reasonable opportunity of preparing one's case is afforded legal representation can be sought and obtained.
I can well appreciate that the Committee here may have felt the need to get on with the matter. They had no doubt read the earlier findings and there were said to be difficulties in reconvening at a later time. Their doubts about Mr McGibbon's frankness may have been correct. However they were nevertheless under a duty to ensure he was not prejudiced by the late receipt of the documents to be relied on in making out the charges against him and to give him an opportunity to respond to the matters they considered they had uncovered about his veracity and that of his solicitor. The process of the charges has been a long one and it is unfortunate that the time and effort expended to reach a final conclusion will be lost. Being unable however to conclude that a fair hearing resulted I must necessarily set the decision aside. In view of the findings made by the Committee it would seem appropriate that a re-hearing be by a differently constituted Committee.
I certify that this and the preceding eighteen pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date:2 February 1996
Counsel for the applicant: Mr F J Purnell
Solicitors for the applicant: Pamela Coward & Associates
Counsel for the second respondent: Mr P A Walker
Solicitors for the second respondent: Australian Capital Territory Government Solicitor
Date of Hearing: 28 June 1995
Place of Hearing: Canberra
Place of Judgment: Brisbane
Date of Judgment: 2 February 1996
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