McGibbon v Linkenbagh

The applicant, Geoffrey Patrick McGibbon, sought review of a decision made by the Disciplinary Appeals Committee, established under the Merit Protection (Australian Government Employees) Act 1984, that he be dismissed from the public service. The Committee had varied the decision of an inquiry officer that he be reduced in classification, consequent upon findings that two charges against him were proved. The charges related to his interest in a cleaning contract for a swimming pool and his supervision of the work carried out under it. The applicant had been the manager of the 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. The Committee's decision to dismiss the applicant was based on credit findings made against him and on the severity of the charges. In its review of the decision, the Court examined the processes adopted by the Committee in arriving at its decision. The applicant had been granted 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 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. 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. The Convenor questioned Mr McGibbon about a 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 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. The Court concluded that the refusal of an adjournment was procedural