McMahon, A.J. v Brown, D.R.

CATCHWORDS

Commonwealth Public Service - promotion of officer to advertised

vacancy

- duties of office advertised incorrectly

- applicant

given incorrect list of duties

applicant also given correct

list of duties

whether proceedings before Promotion Appeal

Committee miscarried because the ducies

of the office were to be

reuarded

those incorrectlv advertised

- whether applicant

accorded procedural fairness - whether Appeal Committee properly

applied legislative provisions defininu the expression "relative

efficiencv", the crreater "efficiencv" of the officer makinq the

appeal being the only relevant consideration - whether Committee

uave equal weight to each of the applicable matters in the

definition of "efficiency"

- whether the Committee imposed

onus of proof or persuasion upon the applicant.

Merit Protection (Australian Government Emplovees)

Act 1984, ss.

6. 7 , 9. 10, 37.

Public Service Act 1922. s s . 27. 50, 50A. 50B. 50D.

ANTHONY JOHN McMAHON v. DAVID REGINALD BROWN and	ORS.
No. G185 of 1986

C o r a m :

Sheppard J.

: 12 September 1986

Svdney

IN THE FEDERAL COURT OF AUSTRALIA .

- .-

)

NEW SOUTH WALES DISTRICT REGISTRY	I	No. G185 nf 1986
1
GENERAL DIVISION	)

BETWEEN:

AN!l'HONY JOHN McMAHON

Applicant

DAVID REGINALD BROWN and ORS.

Respondents

C M : SHEPPARD J.

: 12 SEPTEMBER 1986

REASONS FOR JUDGMENT

HIS HONOUR: This is

an application for judicial review pursuant

S . 5 of the Administrative Decisions (Judicial Review)

Act

1977.

The application seeks the review

of the decision of the

first

three

respondents

members

of a

Promotion

Appeal

Committee to disallow an appeal

the applicant auainst the

promotion of

Mr. P.R. Gentle who is the fourth respondent.

the application the sround relied upon was that the decision

involved

errors

law.

In araument

reliance

was

placed

additionally on

submission that. because

certain matters

arlsinu prior to the hearlnu

of the appeal. the appllcant, in the

IN THE FEDERAL COURT CIF	AUSTRALIA	I
\

NEW SOIJTH WALES DISTRICT QEGISTRY	)	No. G185 of 1986
1

GENERAL

DIVISION

BETWEEN :

ANTHONY JOHN McWHON

Floolicant

A N D :

DAVID REGINALD BROWN and ORS.

Respondents

C-

SHEPPARD J .

PLACE: SYDNEY

: 12 SEPTEMBER 1986

MINUTES OF ORDER

THE COTJRi ORDERS THAT:

‘Lne application

dismissed.

2. The applicant

pay

the

respondents’

posts

the

application.

Settlement and entry of

orders is dealt with in Order 36

of the Federal Court Rules.

circumstances which in

consequence

prevailed.

was

denied

procedural fairness by the Committee.

Both the applicant. Mr. McMahon. and Mr. Gentle have for many

years been employed in the Australian Government Solicitor's

Office in Sydney. For the past three years

or so Mr. McMahon has

been encraued

conveyancinq

and

othe

similar

work.

connection with this work he has been required to go to court.

but only on infrequent occasions.

Mr. McMahon and Mr. Gentle were among the applicants for

position notified in the Commonwealth of Australia Gazette on 2

May 1985. The position was advertised

as follows:-

"Senior

Leual

Officer

$31921-34701

(several

positions). Sydney the activities of the Director of Leual Services

Office. N.S.W.

Provide advice on

lecral matters

to officers of Departments and Authorities.

Act

consultant to, train

and

supervise

Lecral

Officers as required. Exercise deleaations and

authorisations in respect of matters for

which

responsible.

Qualifications: A dearee recoanised by the Board

as appropriate to

the duties of the office

admission as

a practitioner. however described.

of the Hiuh Court or the Supreme Court of a State

or Territory of Australia.

Note:

Contact

officer

for

inquiries.

Stubbs.

. . "

Mr. Gentle's appointment was notified in the Gazette for 19 September 1985.

The notification opened with the words:-

"P.R. Gentle: 550-56973

From: Leual Officer

$18681-30835. Svdney-.

To: Senior Lesal Officer $32751-35603. Office of

the Director of Leual Services, Pool Section.

Sydney (No. 1067) (PS 16, 2.5.85)"

There followed the duties

of and qualifications for the position.

These

were

stated

terms

identical

with

those

the

advertisement for the position earlier set out.

Mr.

McMahon said that he decided to appeal against the

decision to appoint

Mr.

Gentle to the vacancy.

order to

prepare a supportinu statement

for his

appeal. Mr. McMahon sought

COPY of the duty statement applicable to the position.

attended the Management Services Branch of the Department in

Sydney and saw a Mr. Watkins.

He told Mr. Watkins he needed a

copy of the duty statement.

Mr.

Watkins handed Mr.

McMahon a

document saving, "This is the statement vou want". The Substance

of the Statement was as follows:-

1 .

Perform important legal work related to the

activities of the Reuional Office.

2 .

Provide advice on leaal matters to officers

of Departments and Authorities.

Act	as consultant to, train and supervise

Leual Officers as required.

4 .

Exercise deleaations and authorisations in

respect of matters for

which responsible".

It is to be observed that the statement of the duties

is similar

to the statement of them In the notification in the Gazette of

4 .

the vacancy and the notification therein of

Mr. ..

Gentle'-s

. -

appointment. There is evidence from a Mr. Shirvinoton. who was another applicant for the position. that he was uiven a similar

statement of duties to that uiven Mr. McMahon

by Mr. Watkins.

Mr. Brown aave

an account of the Committee's deliberations.

said that the Committee had before

it,

in relation to the

various appeals before it (Mr. McMahon's appeal was not the onlv

one), the following documents:-

"A statement from the Director of Leual Services settino

out the reasons for the selection of the

11 promotees.

A copy of the

report

the

departmental

selection

committee which had recommended the promotion of the	11
Promotees.

Departmental selection criteria for the position of Senior

Leual Officer.

A	copy of the duty statement for the position of Senior

Lewal Officer.

Supportins

statements

from

all

parties

including

the

Applicant and the Fourth Respondent".

Mr. Brown said

that

the

Committee

determined

that

the

Departmental

selection

criteria

referred

the

third

paraqraph save effect to the requirements of s.50A of the Public

Service Act

1922

in relation to

t,he

question of the relative

efficiency of

the parties to the appeal.

I shall refer to the

terms of the section in a moment. The selection criteria were as

follows

"Admission as

a practitioner, however described.

of the

Hiqh Court or

of the Supreme Court of a

State or of a Territory of Australia.

Experience

liiisation.

advisinu,

legal

research and the draftina of documents and a

sound knowledae of the practice and procedure of

Federal Courts and the Courts of the State	or
Territory where located.

Profession

the

following

qualities

and

attributes:

(i) Oral

and

written

fluency.

(ii) An ability to perform work without direct supervision.

(iii) A n ability to research leual problems. to

analyse

factual

issues

and

apply

principles of law to those issues.

(iv) Ability

liaise

and

communicate

effectively

with

counsel.

clients.

witnesses,

members

leual

the

profession and with fellow officers.

( V )

Ability

think

clearly

and

logically

and to present reasoned aruument to	a
court.

(vi) Ability

supervise

direct

and

subordinate staff when required".

The three principal parauraphs of these criteria are referred to

in Some of the documents by numbers. namely,

1. 2 and 3 .

The duty statement referred to in the fourth paraqraph of the

list of documents said by Mr.

Brown

to have been before the

Committee was in the followina terms:-

"1. Conduct the more important

or complex matters

of the Legal Work Unit as allocated.

2. Undertake court appearances as necessary.

3 .

Assist

the

Principal

Legal

Officer

required or directed with

trainina

and

supervision of officers in the work unit.

4 . Keep the Principal Lec_ral Officer of the work unit informed of progress of matters brinsing to notice any inability to cope with work to

the

standards

and

within

time

scales

required".

It is to be

seen

that the duties are expressed in a form

different from notifications in the Gazette and in the duty statement handed to

that

which they

were

expressed

in the

Mr. McMahon by Mr. Watkins. Whether there was any difference

substance between the two statements is	a	matter later to be
considered.

Mr. Stubbs is the Officer Manaaer of the Sydney Office of the

Australian Government Solicitor.

Mr. Stubbs said that the duty

statement referred to bp Mr. Brown correctly described "the duties of the 'pool' positions of senior legal officer and had

applie(d) to these positions since

8 Februarv 1985". He said the

Gazette notice. and thus. inferentially, the document handed

Mr.

, McMahon by Mr. Watkins. did not correctly state

the duties of the

7 .

positions. It will be recalled that the notification

the

Gazette of 2 May 1985 nominated the contact officer for enquiries

as Mr. Stubbs.

There is Mr. Stubbs on the other. as to whether Mr. McMahon saw

an issue between Mr. McMahon on the one hand. and

what Mr.

Stubbs has McMahon's evidence is that he

described

the

correct

duty

statement.

Mr.

did not see the statement at anp

time prior to the hearina of his appeal. His recollection was

that he first saw it when he received

copy of Mr.

Brown's

affidavit. Until then

believed the duty statement was in

accordance with that handed him bp

Mr. Watkins.

Mr. Stubbs

was a member

the

selection

committee

established by the Director of

Lecral

Services to interview

applicants for the

vacant

position.

30 August 1986 the

committee reported to the Director and made recommendations for

the

fillinu

this

and

a number of other

vacancies.

Its

recommendations were accepted by the Director.

Mr. Stubbs gave evidence of three occasions on

which

Mr.

McMahon received a copy of the duty statement which was used by both the selection committee and the Promotion Appeal Committee.

said the selection committee commenced its interviews on

July 1985. At the interview each applicant was given

Mr.

Stubbs or another member of the Committee

copy of the duty

statement and

also of the selection criteria. On

12 September

. _ _ . . .

. I

R .

1985. after the Committee had made

its recommendations, he handed

to each person interviewed bp the Committee

a copy of the report

made by it. Annexed to the report

was

copy of the duty

statement.

Then on

4 February

1986

he gave

copy of the

Departmental statement. which

had been prepared for the purposes

of the appeal. to the persons whose promotions had been notified

in the Gazette and to the persons appealing against those

promotions. It is apparent from the way Mr. Stubbs uave his

evidence that he does not recollect handing Mr. Mckhon on each

occasion a

copy of the dutv statement. His recollzction rather

is that he uave documents on each occasion

to each applicant and

that these documents should	have	contained the duty statement
along with other material.

When pressed in cross-examination,

Mr.

McMahon was not

adamant as

he had been in his affidavit and his evidence in chief

that he had never received the duty statement. He conceded that

before

he went in to be interviewed

the Promotion Appeal

Committee he concerninq his case. He also said that he

was uiven access to the Departmental documents

had had most of them

because he had applied for them under the Freedom of Information

1982.

It was suauested to

Mr. McMahon that he must have seen

the duty statement amonast the documents

he had.

He conceded

that it was possible but added that

could not recall readinu

the statement when

he looked

at,

the papers.

am uncertain

whether this refers

the evidence aivm about access to

documents immediatelv before interview bv the Appeal Committee

whether it refers menerally to the access he had under the Freedom of Information Act. Mr. McMahon went on to say. "Look.

in my

mind at that particular time - I had

been in that office

for a lonu time and

I was convinced I knew what the duties of the

iob were

. . .

In my opinion the balance of probabilities favours the view that the dutv statement was given to Mr. McMahon

on more than one

occasion alona with other documents. "here is no reason not

$ 3

accept Mr. Stubbs' evidence. If that evidence were that

he had

only given the document to

Mr.

McMahon on one occasion. there

would be room

for misunderstanding.

But it seems to me to be

most unlikely that some mistake or error could have crept into

the system on three distinct occasions separated as they were

from each other by

an interval of some months. I think the truth

of the matter is revealed in the answer made by Mr. McMahon which

I have quoted. He had acted

in the position

believed was

available for

lona time.

He did know the duties of that

position intimatelv. He was not concerned to look closely at

either the dutv statement which appeared in the notification in

the Gazette and the statement aiven him by Mr. Watkins

or the

duty statement

which was in fact used bp the

two

committees.

Accordingly. I reject

Mr. McMahon's evidence that he did not

see the dutv statement used by the committees until after these

proceedinas had been commenced.

. I

10.

Mr. Brown uave

account of

the proceedinus before the

Promotion

Appeal

Committee

and

its

deliberations.

explained how the Committee rated Mr.

Gentle and Mr. McMahon.

Because of submissions made on behalf of Mr. McMahon it is

necessary

refer

the

detail

of this

evidence. It is

contained in paras. 9. 17 and 18 of Mr.	Brown‘s affidavit which
are as follows:-

“9. The Committee adopted

a 5 point scale to rate

each of the parties auainst each element of

the Selection Criteria (excludinu criterion

1).	The ratinus were as follows:

Description

Svmbol

Ratinu

Well above averaue

Sliuhtly	above	O+	-
- 1
averaue

Averacre

Sliqhtly

below

-1

ave raue

Well

below

averaue

- 2

........ ........ ........ ........ ........ .......

17. (T)he Committee‘s

ratins

in respect of the

Applicant and the Fourth Respondent were as follows:

Applicant	Selection	Fourth
Criteria	Respondent

3 (i)

o+ = 1

3 fii)

= 1

o = o

3 (iii)

3 (iv)

o+ = 1

( v )

= -1

o+ = 1

3 (vi)

o+ = 1

TOTAL

18. The Committee. therefore. found that, havina reuard to the Selection Criteria. the Fourth

Respondent was more efficient to perform the

duties nf Senior Leml Officer. It therefore

held that the Applicant’s around of appeal

aqainst the Fourth Respondent, namelv Treater

11.

efficiency than the Fourth Respondent. had

not

been

established

and

disallowed

his

appeal”.

An objection to paraqraph 17 was in part upheld.

I have quoted

only so much of the paragraph as was admitted in evidence.

It is next necessarv to refer to the relevant provisions of the legislation. These are contained in the Merit Protection

(Australian Government Emplovees) Act

1984 and in the Fublic

Service Act 1922, particularly in amendments thereto which came

into force in

1984.

Part I1 of the Merit Protection Act provides

for

the

establishment,

functions

and powers

the

Merit

Protection and Review Aaency. One

of the functions of the Agency

is to arrange for the establishment

of, and to ensure the proper

and efficient operation of, Review Committees in accordance with

Division I1 of Part I1 of the Act: see

S . 6.

By section 7, which

is in Division

11.

Review Committee means. inter alia.

Promotion Appeal Committee established under Sub-division B of Division I1 which is entitled “Promotion Appeal Committees”. In section 9 the Auency is to arranae, from time to time, for the establishment of Promotion Appeal Committees required for the

purposes, inter alia, of determining appeals made under

S. 50B of

the Public Service Act 1922 auainst the promotion of

an officer.

By section 10 a Promotion Appeal Committee is to be constituted

by a chairman. who shall be a person appointed bp the Acrency. a

person nominated by the secretary of the department in which the

promotion is the subiect of the appeal and a person nominated

- .

12.

the appropriate industrial organization of employees. In the

absence of such a nomination, the third member is nominated in

%he manner provided for in the regulations. Mr. Brown. the

chairman. was the person appointed by the Agency,

Mr. Doherty,

who	is the second respondent. was the person nominated by the

Secretary of respondent. was the third member.

the

Department

and

Ms.

Campbell.

the

third

Section

of the Merit Protection Act provides for the

procedure to be followed by Review Committees. It

is unnecessary

to refer to the detail

of the section.

Section

the Public Service Act provides that the

Secretary of a Department.

f o r

the purposes of enablinu the

Department to perform its functions. mav. in writing, create an

office in the Department

or abolish an office in the Department.

Sub-section 50(1) of the Public Service Act provides that. where

an office in

Department is vacant. the secretary of the

Department may cause notification of the vacancy to be given in the Gazette. It was pursuant to that provision that notice of

the

vacancy

was

notified

the

Gazette

2 May 1985.

Sub-section 50(3) empowers the Secretary of a Department in which

a vacant office exists to transfer

or promote an officer to fill

the vacancv. By sub-section

50(5) the promotion of

an officer

under sub-section

( 3 ) is to be notified in the Gazette and is

subject to appeal

under S. 50B of

the Act. Mr. Gentle’s

appointment was notified

the

Gazette

pursuant

this

- .

13.

provision.

Section 50A provides

for the selection of officers for

promotion. In the selection of

officer for promotion to

vacancy, consideration is to be uiven only to the "relative

efficiency" of the officers available for promotion to the

vacancy. "Efficiency" is defined for the purposes of the section

to mean the suitability of the officer for the discharue of

duties L':

the kind to be performed

in the vacant office havinu

regard to the following matters:-

"(a) the

capability

the

officer to discharse those

duties:

(b)	the standard of the work	performed by the officer in
other offices;

experience

possessed

by the officer relevant to

the discharge of those duties:

(d)

the training and educational qualifications of the officer :

(e)

in a case where the vacant office concerned is

part-time office

- the willingness of the officer to

undertake the duties of the office on the basis that

the hours of attendance applicable to

him

will be

those specified in the declaration under sub-section

29B(1) in relation to the office:

(f)

a case

where

the vacant office concerned is

full-time office

- the willinuness of the officer to

undertake the duties of

the office on

full-time

basis:

(9 )

anv

personal

qualities

the officer relevant to the

discharcre of

those duties.

...

See sub-section 50A(2).

Sub-section

5 0 A ( 3 )

provides that the Public Service Board

may.

notice

published

the

Gazette.

declare

that, in

assessinu the efficiency of officers for promotion

offices

14.

included in a specified class of offlces. crreater weiuht may be given to one or more of the matters referred to in paras. fa) to

(U) inclusive.

beinq

matter

or matter8

specified

the

declaration. than

t o the other matter or nlatter5 referred t o in

those paragraphs.

No such notice was published in relation to

the vacancy here in question.

Section 50B provides for appeals.

The only ground of appeal

is the greater eificiency of the officer makinq the appeal.

Section 50D

prcjvides for the determination of appeals. It

unnecessary to refer to the detail of this section.

The

submissions made by counsel for the applicant were

follows

(1)

The Promotion Appeal Committee was under a misapprehension

as to what were the duties of the office in respect of

which it was considerinu the applicant's appeal. Section

50A of the Public Service Act obliged it to consider the

relative

efficiency

Mr. McMahon

and

Mr. Gentle.

"Efficiency" was defined to mean the suitability of the officer for the discharue of duties of the kind to be performed in the vacant office having regard to the various

criteria

specified

in the

lettered

paragraphs

sub-section

50A(2)

earlier

set

out.

Fundamental

consideration of the efficiency of the two officers was

therefore the nature of the duties to be performed in the

vacant office.

The Committee assumed the

duties to be as

15.

stated in the documents before it. In fact thep were the

duties stated in the notification in the Gazette and in the

statement of duties uiven

Mr. McMahon bp Mr. Watkins.

( 2 )

This submission is an alternative to the first. If the

Committee

were

under no misapprehension as to what the

duties were, Mr. McMahon

was.

The effect

that

misapprehension

on Mr.

McMahon's part was to deny him

fair opportunity to put his case before the Committee.

( 3 )

The Committee failed to have reuard to all of the matters specified in the le'ctered paraqraphs of sub-section 50A(2) earlier set out. It was not suuqested that failure to have reuard to the matters specified in paras. (e) and (f) was of significance: but each of the other paragraphs applied.

It was submitted that the Committee's concentration on the selection criteria provided by the Department diverted its

attention from matters which S. 50A

of the Public Service

A&	obliged it to consider.

( 4 )

Insofar as the Committee did have reqard to the specified

matters, it failed to give them the weiuht

which

it was

required to qive them as the result of

an implication to be

drawn from sub-section 50A(3).

That implication was that.

in the absence of a notice declaring that. in assessing the

efficiencv of officers for promotion to offices included in

a specified class of offices, areater weiuht misht be uiven

to one or more of the matters referred to in paras.

(a) to

(U).	each of the matters in the applicable parauraphs was

t o

be aiven equal weiuht.

such notice havina been

...

16.

published,

S .

50A

required the Committee to uive equal

weiuht to each of the matters specified in the applicable

paragraphs of sub-section

( 2 ) .

(5)

The

Committee conducted the appeal

if there were a

burden of proof

or a

burden of persuasion on Mr. McMahon

when

in truth there is no such burden on

appellant

before a Promotion Appeal Committee.

Before cominu to deal with thesc- submissions. it is necessary

to mention some further evidence. Weference was earlier made to a "pool position". Mr. McMahon said that he did not understand

what such

a position was. It was explained by

Mr. Stubbs.

said

that

within

the

Office

the

Australian

Government

Solicitor there were three levels of legal officer positions. namely. principal leqal officer. senior leqal officer and leual

officer. The officer, that is. senior leqal officer and leual officer. were

positions

below

the

rank

principal

leual

called pool positions. They

were called by that name because it

uave the Director the flexibilitv to move people from one

position to another on a needs basis or on a rotational basis if

employees requested rotation. He said the Office was divided

into nine sections. People at the senior leual officer and leual

officer level could be asked to work in any one of those

sections.

Mr.

Stubbs made it clear, however, that people were

not moved from one section to another auainst their will.

said any such move would be

matter of aureement. Sometimes

leual officers souuht reuular moves in order to obtain

a broad

17.

base of experience. At

the senior lesal officer level vacancies

sometimes occurred leadinu to people being canvassed and asked if

they were prepared to move. In summary Mr. Stubbs said that the

office had

a pool of leual officers and senior leual officers

within which the Director might move people

as and when required.

the

course

the

evidence

he uave

concerning

the

deliberations of conversation with Mr. Doherty in which he asked

the

Committee.

Mr.

Brown

recounted

Mr. Doherty

whether the positions in question were pool 2ositions. According

to his evidence. Mr. Brown said to Mr.

Doherty. "Are these

pool

positions and

the people have to move between the various

senior leual officer work units?" Mr. Dohertp said that they

did.

Mr.

Brown continued, "Well. that beina the case,

do the

selection criteria have the same weiuht in each

work unit or do

they have different weights?" Mr. Doherty said,

. .

. the

emphasis would be different on each criterion, depending on the

work

unit

which

the

person

was

operating".

further

discussion Mr. Brown said that they decided to give equal weiuht

to the selection criteria

for that reason. However, he said that

did ask

Mr.

Doherty whether the criteria would require

different emphasis in different work units. Mr. Brown was. of

course. speaking of the selection criteria. not the matters

specified in the lettered parauraphs

sub-section 5 0 A ( 2 ) .

Mr. Brown said that in the course of Mr. McMahon's interview

Mr. Doherty .made it clear to him that the positions were pool

18.

positions. Mr. Dohertp said to Mr. McMahon. "We're not just

lookinu at the conveyancinu position. we're lookins at

a pool

situation". Mr. McMahon said that he understood. Mr.

Brown said

that this matter was referred to more than once durina the

interview.

I accept Mr.

Brown's evidence of his conversations with Mr.

Doherty and his account of what was said by	Mr. Doherty to Mr.
McMahon during the interview.

I come now to the submissions relied upon by counsel for Mr.

McMahon.

In the consideration of the submissions

a first matter

determine

whether

the

differences

between

the

two

statements of duties are differences of substance

or differences

of form only. I have reached the conclusion that the differences

are differences of substance.

In the discussion that follows

I shall refer to the duties

which were listed in the notifications in

t,he Gazette as

"the

advertised duties" and those to which the two committees paid

reuard as "the actual duties". The lists will be referred to as

either the "advertised list" or the "actual list". A comparison

of the two lists yields the followinu conclusions:-

(a) "he substance similar.

duties

specified

item

1 in

each

case

are

(b)

The duties stated in item

of the advertised duties is

distinctly different from that stated in item

of the

19.

actual duties. Neither finds a counterpart in any of the

other duties stated in the remaininq items of the other

list. Advice may be encompassed in item 1 of each list.

If that be

so, the statement in item 2

of the advertised

list

superfluous.

There

mention

court

appearances in any part of the advertised list.

The items numbered	3 in each list are not different in
substance.

The statements in items

of each list bear no relation + p

each other. The matters referred to in each are	RSC
mentioned in anv item of the other liet.

In passing

I should say that the differences between the two

lists is, in the absence of

any explanation f o r

them - none was

offered in evidence

- extraordinary. Especially is that

so in

the liuht of

Mr. Stubbs' evidence. It was

he who emphatically

said that the duties were those stated in the actual list. Yet

he was stated in the notification of the vacancy

in the Gazette

to be the officer to whom inquiries were to be addressed.

The

leqal siqificance of

the

differences

a matter

for

consideration. But, whatever the outcome of these proceedinss. one would hope that a similar situation will not recur.

The first

submission

made

behalf

Mr. McMahon

concentrates attention on the words, "for the discharae of duties

of the kind

be performed in the vacant office" in the

definition of "efficiency"

sub-section SOA(2) of the Public

- ,

20.

Service

Act.

This

all

important

for

the

application

sub-section 50A(1) and

50B because "relative efficiency" is

the only consideration. If the duties were those stated in the

advertised list, the consideration of the matter by the Promotion

Appeal Committee proceeded on a false assumption. If they were

as stated in the actual list. that

is not the case.

Counsel for Mr.

McMahon has submitted that the duties stated

in	the advertised list are conclusively the duties of the

advertised position. In his submission the substitution of

different list of duties

was an irrelevant circumstance.

There statement of the duties to be performed in the vacant office

nothinu in the legislation which requires the

be stated in the notification in the Gazette. Neither S . 27 nor

of the Public Service Act requires this to be done. It would be lawful to advertise the vacant office without mention of

S .

50A

the

duties

performed

it.

Thus

the

erroneous

and

misleadinu

statement

duties

which

appeared

the

advertisement is not in itself determinative of what the outcome

of this case should be.

The Committee was. as a matter of law,

entitled to proceed to consider the appeals before it upon the

footina that the duties were as stated in the actual list. The

first submission made on behalf of	Mr. McMahon must, therefore.
be rejected.

come

the second submission. TJndoubtedlv the Appeal

21.

Commir;tre had

the Gazette notl f ieat ion before i t .

But it w u l d

not have paid it sreat attention, at least insofar as the duties

of the office were concerned.

For those it had the statement in

the

actual

list.

would

not

have

been

alerted

the

differences

substance which there were. Yet. objectively

speaking, the misleadinu statements made in relation to the

duties of the office required it to take great care to ensure

that appellants were aware of, and appreciated the nature of. the

actual duties of the office to which they sought appointment.

similar obligation was cast on the selection committee but that

by the way. If steps

ensure that appellants did not

misunderstand

the

duties

the

office.

there

would

substantial risk that procedural fairness would be denied one

more appellants

that the proceedinus before the Committee

would miscarry. That is indeed what counsel for Mr. McMahon has

submitted occurred in the present case.

In order that the submission may be properly understood, it

is necessary to bring into consideration the emphasis placed by

the Committee on the importance of court work in the discharue of

the duties of the position, a matter not mentioned in the

advertised list of duties. I

refer to the evidence uiven by

Mr.

Brown

concerninci his conversation with

Mr. Dohertp about this

matter.

I also refer to

Mr. Brown’s evidence of what Mr. Dohertv

said to

Mr.

McMahon durlnci the interview about the positions

beirlu “pool“ positions. Mr. Dohertv

did

not

sag

anything

specifically about appearances in court, but. he did sav. “We’re

2 2 .

not just looking at the conveyancing position. We're lookinu at

a pool situation". Mr. McMahon said that

he understood.

In his evidence

Mr. McMahon said that he did not know what

"pool"

position

was.

althouuh

he had

often

heard

the

expression.

said that

he had endeavoured to find out but

without success. Mr. McMahon is an experienced solicitor who

has

been in the Sydney office of the Australian Government Solicitor

,-or

many vears.

regret to say that

cannot accept Mr.

McMahon's evidence in this respect:	I think it is aaainst all the
probabilities.

That being so, Mr.

Doherty's statement to

Mr. McMahon at the

interview -

a statement that Mr. Brown said was made more than

once -

concerning the positions being "pool" positions, and Mr.

McMahon's

statement

that

he understood.

are

the

utmost

importance. The disadvantaue that an appellant in Mr. McMahon's

position may have suffered from the use by the Committee of

different list

Committee's emphasis on court work. This would be especially so

if such an appellant had concentrated on convevancing and similar

duties

would

arise

only

because

the

work and thouaht. as

Mr. McMahon said

he did, that he

was in

reality applying for permanent appointment to the position

which he had

acted

for

substantial

period.

That

the

Committee's emphasis on court work did play

an important part in

its decision is

to be seen from paragraph

17 of

Mr. Brown's

affidavit

earlier

quoted.

The

relevant

criterion

there

- I

2 3 .

numbered 3(V).

The assessment of Mr. McMahon was

-1: that of Mr.

Gentle was

+l.

the liuht of what Mr. Doherty said

to him and of his

apparent understanding of the implications of it.

Mr.

McMahon

could not have been under any misapprehension about the place of

court work in the Committee's deliberations.

be added into

the

scales

the

fact

that

Mr.

McMahon

did

have

his

possessian the actual list of duties. He may not have read it

carefully. but

had the opportunity of doinu

so.

In those

circumstances

consider that the advertised duties did not

mislead Mr.

McMahon nor disadvantage him

in presenting his case

to the Promotion Appeal Committee.

I am satisfied that

he was

accorded procedural fairness. In reachina that conclusion

I have

taken into account the decision of this Court in Hurt

v. Rossall

(1983) 77

F.L.R.

173, but,

in my opinion, that case is plainly

distinuuishable from this one because of its different facts.

The second submission therefore fails.

The basis for the third submission lies in the Committee's

alleged failure to direct its mind to the applicable matters in

sub-section 50A(2) of the Public Service Act in which the word

"eff iciency" is defined. In counsel's submission the Committee

iunored the provisions of sub-section

50A(2)

and concentrated

entirely on the selection criteria formulated by the Department.

This was,

so he

said. to be seen in the statement of reas.ons

- 3 ’

2 4 .

furnished by Mr. Brown to Mr.

McMahon pursuant to S.

13 of the

Judicial Review Act. The relevant parts of the reasons are as

follows

“In

reaching

its

decision.

the

Committee

considered the relative efficiency of the parties for the position against the selection criteria used by the department. These criteria were:-

in terms of Section 50A(2) of the Public Service

........ ........ ........ ........ ........ ........

The criteria were the selection criteria earlier set out.	The
statement of reasons continued:-

“The Committee

found

that

you satisfied

the

selection

criteria

and

should

considered

efficient for the

performance

the

stated

duties.

However,

having

agreed

that

both

vourself and Mr. Gentle satisfied criterion

1 to

the

required

extent

and

that

there

were

significant differences detected between

you in

relation to criteria

(iii) and

(iv),

the

Committee after careful consideration concluded in relation to each of the other criteria:

Criterion 2

You

were rated sliuhtlv above averaue and

Mr.

Gentle averaue, in view- of your greater depth of

experience in the various components of leqal

work detailed.

Criterion 3 (i)

You

were both considered to have the required

deqree of written fluency. but Mr Gentle was able

to demonstrate

he was more fluent orallv and this

Tave

him

an edue in this criterion. Yau were

assessed as averaue and	Mr. Gentle sliahtly above
averaue .

Criterion 3 (ii) work without direct supervision. but your greater

experience enabled

you to be rated sliuhtlg above

25.

averaue and Mr. Gentle averaqe.

Criterion 3(v)

Mr. Gentle was rated clearly ahead of

you in this

reqard. in that

he was

rated sliuhtly above

averaue

and

you were

rated

sliqhtly

below

averaue.

Mr. Gentle was able to demonstrate to

confirmed the- Committee view that you would not

be a good court advocate.

Criterion 3(vi)

Mr.

Gentle

was

able

indicate

a greater

understandinu of the role of

a supervisor and was

rated slightly above average. You were rated

average based on your response to questioning and

your

referee's

comment.

'Mr. McMahon

is a

reasonably competent supervisor of staff'.

........ ........ ........ ........ ........ ...*.*.**

Havinu reaard to the 'pool' nature of the Senior

Legal Officer positions and the importance of the

personal

attributes

required

perform

effectively

the

positions.

the

Committee

decided to give criterion

2 and each sub-division

of criterion 3 equal weight.

On this basis and after makins its enquiries, the

Committee considered that Mr. Gentle more fully

met the selection criteria than

you did. The

Committee determined that vou had not established

the mounds of your appeal of ureater efficiency

and your appeal

was disallowed".

The

leuislative provisions relevant to

consideration of

counsel's submission are those contained in S.

50A.

It will be

recalled that sub-section

(1) provides that in the selection of

officer for promotion to

vacancy, consideration shall be

uiven to the relative efficiency

of the officers available

for promotion. Sub-section

( 2 )

exhaustively defines the word

"efficiency". It means the suitabilitv of the officer for the

discharue of

duties of the kind to be performed in the vacant

26.

office havinu reuard to the matters set out in the seven lettered

paragraphs which I have earlier quoted.

The provisions of

S. 50A.

of course, apply to all areas of

the Public Service. It would

not, therefore, be wronu for

selection committee or

a Promotion Appeal Committee to rely on

criteria specially formulated for the qualifications, experience

and skills needed for the particular position which is in

question. In other words. a committee would commit no error. if

it relied on criteria, so

lons as they did not contain matters

made irrelevant by sub-section

50A(2) and thus divert it from its

obliuation to have reqard only to the applicable matters in the

lettered paragraphs of the sub-section. The matters covered by the criteria would also need to comprehend all the applicable matters therein. A first step in dealinq with the submission

is,

therefore, to compare the selection criteria with the relevant

paragraphs of the sub-section.

Parauraphs (a) and (d) refer to the capability of the officer

to discharue the duties of the office and to the traininu and

educational qualifications of the officer. In my opinion the

same sround is covered by paraqraphs

and Z of the criteria.

These refer specifically

the qualifications and type of

experience which

the holder of the office must have. Unless

officer has the

qualifications

and

experience

mentioned

paragraphs 1

and 2 . it is unlikely that he would be capable of

discharging the dutles

of the office as required by para.

(a) of

- L .

27.

the sub-section. The criteria specified in the sub-parasraphs of

paragraph

also relate to the capability of the officer to

discharue the duties of the office.

It is necessary, however, to consider whether the criteria uave effect to the matters specified in paras. (b).

of the

subsection.

In my

opinion both criteria

2 and

3 .

althouuh not in express terms, direct the Committee's attention

to the

standard of the work performed by the officer in other

offkes:

see para. (b). Likewise, they encompass the matters

referred to in para. (c).

namely, experience possessed by the

officer relevant to the discharge of the duties. Upon the basis

that the position was

"pool" position, each of the matters

specified in criteria

and

would. inferentially, require

consideration of the officer's relevant experience. That leaves

the matters specified in para.

(g) of the sub-section. It is not

clear to me that this paragraph applied to the circumstances of

this case.

I think the better view is that it did not

so that.

like paras.

(e)

and (f), it may be left out of account. But if

that view not

be correct,

I consider that criteria

2 and 3 auain.

least

inferentially,

direct

the

Committee's

mind

the

matters referred to in para.

( U ) .

Indeed. each of the matters in

the sub-paragraphs of criterion

3 require personal qualities of

various kinds in addition to professional qualifications and

experience.

It follows from the analysis which

I have undertaken that

* " . .

28.

there was

departure from

S .

50A

by the Committee in the

respect relied upon in the submission.

All

that happened was

that selection criteria havinu special reference to the vacancy

in question were formulated

a uuide to the Committee's

deliberations.	It	follows that the third submission must	be
rejected.

The

starting

point

for

consideration

the

fourth

submission is that Mr. Brown stated in his reasons that. having

regard to

the "pool" nature

of the positions and the importance

of the personal attributes required to perform effectively in the

positions. the Committee decided to

uive

criterion 2

and each

sub-division of criterion

3 equal weight. Criterion 1 related to

the formal qualifications of the applicants for the position.

Such qualifications are not separated out in any of the matters

specified in the paragraphs of sub-section

50A(2). but, as I have

mentioned, they are included within the matters specified

paras. (a) and (d).

the liqht of my conclusions reached when

dealinu with the third submission, it must follow that the

Committee did in fact accord equal weiqht to each of the matters

specified

the

paragraphs

of sub-section SOA(2): that

because the effect of the criteria was to specify those matters

as they applied to the particular office	which was in question.
Ttie submission must therefore fail.

My conclusion in this reuard makes it unnecessary to consider

' the effect of the provlsions

of sub-section SOA(3)

on the earlier

. r s > .

29.

sub-sections.

counsel's

submission

each

the

matters

specified in sub-section

( 2 ) was to be accorded equal weiuht

unless there were a declaration pursuant to sub-section

( 3 ) .

the circumstances

is unnecessary to express a view on the

submission and

I do not.

That

leaves

the

fifth

submission.

opinion

the

Committee did not conduct the appeal as if there were

a burden of

proof or persuasion on Mr. McMahon. In support of the submission

reliance was placed

on statements in Mr. Brown's reasons such as.

"You satisfied the selection criteria". "Both yourself and

Mr.

Gentle satisfied criterion

1 to the required extent",

"Mr. Gentle

was able to demonstrate he was more fluent orally", and

a number

of other such statements. In my opinion the language used by the

Committee was no more than the language

of decision. It does not

indicate that any burden of proof

or persuasion was placed on any

party involved in

the appeal.

From time to time this Court has

had occasion to say that it

will not construe the statements of

lay tribunals over-critically, but will

look to the substance of

what is said. If that

done in this case, there is not

revealed the error for which counsel f o r the applicant contends.

Mr. Brown has said in the early part of the statement of reasons

that the Committee considered the relative efficiency of the

parties in- terms of S . 50A.

One ouuht not lightly assume that

the Committee proceeded without proper reuard to the section

which applied

directly to its deliberations. Unless there

were internal evidence in the reasons

or clear evidence otherwise

* * . . .

that a departure from its obliaations had occurred, the Court

should

not

interfere.

Accordingly,

the

fifth

submission

rejected.

In the result the submissions made on behalf

of the applicant

are rejected.

The application is dismissed with costs.

[1986] FCA 389

9 Dec 1986