Munnings, C.F. v Smith, D.W
[1987] FCA 452
•25 AUGUST 1987
Re: CLYDE FRANCIS MUNNINGS
And: D.W. SMITH; W.J. McDERMOTT and L. FRANCIS (sitting as a Disciplinary
Appeal Board under s.62 of the Telecommunications Act 1975)
No. TG9 of 1986
Administrative Law
22 IR 254
COURT
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Beaumont(2) and Spender(1) JJ.
CATCHWORDS
Administrative Law - Telecommunications Act 1975 - appellant's dismissal from the Telecommunications Commission for disregarding a direction to attend a medical examination - validity of Telecommunications (Staff) By-law 51 - authority to require appellant to attend a medical examination - appeal procedures within the Telecommunications Commission Service - whether proper compliance with those procedures.
Administrative Decisions (Judicial Review) Act 1977
Telecommunications Act 1975 ss.58,59,62,111,112
Telecommunications Regulations; Reg.19
Telecommunications (Staff) By-laws; By-law 51
HEARING
BRISBANE
#DATE 25:8:1987
Counsel for Appellant: Appellant appeared in person
Counsel for Respondents: Dr G. Flick Q.C. with Mr C Cunningham
Solicitor for Respondents: Australian Government Solicitor
ORDER
The appeal be dismissed with costs.
(Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.)
JUDGE1
Clyde Francis Munnings, the appellant, has appealed from the judgment of the Federal Court of Australia dismissing an application by the appellant for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of a decision made by a Disciplinary Appeal Board ("the Appeal Board") constituted under the Telecommunications Act 1975 ("the Act") dated 19 April 1985. The respondents were the members of the Board which made the decision sought to be reviewed, ("the Appeal Board decision"). The Appeal Board decision confirmed the decision against which the appeal was made by the appellant to the Appeal Board.
To understand the nature of this appeal, it is necessary to give a brief outline of the statutory structure supporting the function of the Appeal Board. This can be done by repeating what was said by Northrop J. in Australian Telecommunications Commission v. Hart (1982) 65 FLR 41 at pp 51-53:-
"The Australian Telecommunications Commission (the Commission) is a statutory authority. It is constituted a body corporate by s. 21 of the Telecommunications Act 1975 (Cth) (the Act). It is established under s. 4 of the Act, its functions are set out in s. 5, its duties are set out in s. 6, and its general powers are set out in s. 9. The composition of the Commission is set out in s. 22 of the Act. Under s. 33 of the Act, the Commission is empowered to delegate to persons therein specified, either generally or otherwise as provided by the instrument of delegation, all or any of its powers under the Act. An officer of the Commission is a person coming within a class of persons to whom a delegation may be given. As is common with similar services, the word 'officer' is defined to mean a person appointed as an officer of the Commission, while the word 'employee' is defined to mean a person appointed as a temporary employee: s. 3 of the Act.
Part V of the Act, comprising s. 34 to 70 inclusive, contains provisions relating to the staff of the Commission. Section 38 establishes the Australian Telecommunications Commission Service (the Service) which consists of the persons appointed as officers or employed as temporary employees in accordance with Pt. V. This provision is similar to many other services constituted under Commonwealth and State statutes such as the Public Service, the Teaching Service, the Australian Postal Commission Service and the Railway Service. Under s. 39 of the Act, the Commission is empowered to appoint persons as officers of the Commission, while under s. 42 the Commission is empowered to engage persons as temporary employees. Upon attaining the age of sixty years, an officer is entitled to retire from the service, but in any event ceases to be an officer on attaining the age of sixty-five years: s. 54 of the Act. Section 43 is of importance and sub-s. (1) is set out: 'Subject to this Part, officers and employees hold office on such respective terms and conditions as the Commission determines.' Subsection (2) contains transition provisions not relevant for present purposes. Under s. 111(1)(g) the Commission is empowered to make by-laws making provision for or with respect to the terms and conditions of employment of officers and employees.
Division 6 of Pt V of the Act, comprising ss. 57 to 64 inclusive, relates to dismissals and punishments. Under s. 57, a reference to misconduct in relation to an officer, is a reference to a faiure of the officer to fulfil his duty as an officer. Section 58 makes provision for disciplinary action against an officer. For present purposes s. 58(1)(a) is relevant and is set out:
'58.(1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if -
(a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction.'
The subsection sets out a number of other provisions which constitute misconduct. The section then contains detailed provisions concerning the procedures to be followed when disciplinary action against an officer is contemplated. Detailed reference will be made to some of those provisions later in these reasons. Under s. 62(1) of the Act an officer may appeal to a Disciplinary Appeal Board against a direction or decision made or given with respect to him by an officer of the Commission under s. 58. The Appeal Board is required to hear each appeal submitted to it and may confirm, vary or set aside the direction or decision against which the appeal is made (s. 62(5)) and is to give reasons in writing for its decision on an appeal. Under s. 63 the Commission is required to establish Disciplinary Appeal Boards which are to be constituted in accordance with that section. Under s. 64 the Commission has power to review findings made by a Disciplinary Appeal Board.
Division 8 of Pt V of the Act, comprising ss. 66 to 70, relates to the powers and functions of the Commonwealth Conciliation and Arbitration Commission in respect of the service. Under those provisions, the Conciliation and Arbitration Commission is empowered to prevent or settle, by conciliation or arbitration, industrial matters in respect of the service and to hear and determine industrial questions in respect of the service submitted to it. This means that the Conciliation and Arbitration Commission is empowered to make awards in relation to salaries, wages, rates of pay or other terms and conditions of service or employment of officers or employees in the service. The provisions of any awards so made prevail over any inconsistent terms and conditions of employment of officers and employees determined by the Telecommunications Commission under s. 43 and s. 111(1)(g) of the Act."
That passage has application to the present appeal.
At all material times the appellant was an officer in the Service. At all material times R.W. Griggs was an officer in the Service. On 8 May 1984, Griggs, in his capacity as Chief Manager, Personnel and Industrial Relations, wrote to the appellant. The letter was received by the appellant. It was lengthy. It referred to a number. of previous events which had occurred in relation to the appellant and his fitness for continued duty as an officer of the Commission. It contained the following two paragraphs:-
"Accordingly, I have arranged for a further appointment to be made for you with the Commonwealth Medical Officer. It has been arranged for 11.30 a.m. on Monday, 21 May 1984. I direct you to attend. You should report to the Commonwealth Department of Health, 3rd Floor, Kirksway House, Kirksway Place, Battery Point at least five minutes before the appointed time.
Finally, you are advised that failure to attend will result in serious consideration being given to suspending you from duty as an officer of this Commission."
The appellant did not attend for the appointment with the Commonwealth Medical Officer at 11.30 a.m. on 21 May 1984. Further, it should be noted that in its reasons for decision the Appeal Board found that the appellant had no intention of complying with the direction contained in the letter of 8 May 1984.
Thereafter, the procedures prescribed by s.58 of the Act were set in motion. Sub-section 58(3) provides:-
"(3) Where an officer authorized by the Commission for the purposes of this sub-section is of the opinion ... that an officer may have failed to fulfil his duty as an officer the authorized officer shall, as soon as practicable, decide whether he should be charged and -
...
(b) if he decides that the officer should be charged - by writing under his hand delivered to the officer, charge the officer with the failure."
That sub-section refers back to sub-section 58(1). The relevant provision of that sub-section is paragraph (a). That paragraph has been set out above in the quotation from Hart's Case. Mr G.P. Pullen was an officer authorized by the Commission for the purposes of sub-section 58(3). The solicitors acting for the appellant at the hearing of the application formally admitted that fact for the purposes of those proceedings. On 23 May 1984, G.P. Pullen charged the appellant with an offence under s.58. The charge was in writing under his hand. It was as follows:-
"AUSTRALIAN TELECOMMUNICATIONS COMMISSION
CHARGE UNDER SECTION 58 OF THE TELECOMMUNICATIONS ACT 1975
I hereby charge Clyde Francis MUNNINGS, Clerk Class 2/3, Supply Branch, with the undermentioned breach of Section 58 of the Telecommunications Act 1975, namely:
That the said Clyde Francis MUNNINGS, on the twenty-first day of May 1984 wilfully disregarded a direction namely, that he attend for a medical examination by the Commonwealth Medical Officer at Kirksway House, Hobart, at 11.30 am on Monday, the twenty-first day of May, 1984, given to him in his official capacity by Geoffrey Peter PULLEN, Manager, Supply Branch, a person authorised to give the said direction."
The charge was signed by G.P. Pullen as "Authorised Officer." It should be noted that the direction referred to in the charge was given by R.W. Griggs in his official capacity of Chief Manager, Personnel and Industrial Relations and not by Pullen.
Sub-section 58(5) provides:-
"(5) Where an officer is charged with misconduct, an officer authorized by the Commission for the purposes of this sub-section, not being either the supervisor of the officer charged or an officer authorized for the purposes of sub-section
(3), shall, without undue delay, hold an inquiry into the charge."
Mr. D.J. McCarthy was an officer authorized by the Commission for the purposes of sub-section 58(5). The solicitors acting for the appellant at the hearing of the application formally admitted that fact for the purposes of those proceedings. McCarthy was not the supervisor of the appellant. He held the inquiry required by sub-section 58(5). He complied with the provisions of sub-sections 58(6), (7) and (8).
Where the officer who held an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he is empowered to do one of a number of things specified in sub-section 58(9). For present purposes, the power conferred by sub-paragraph 58(9)(d)(iii) was exercised. Under that power the officer is empowered to:-
"(d) recommend to the Commission, in writing -
...
(iii) that the Commission dismiss the officer from the Service."
Where the officer makes such a recommendation, he is required by sub-section 58(10) to:-
"... furnish to the Commission, with his recommendation, full particulars of his findings in relation to the facts giving rise to the misconduct."
In the present case, McCarthy, pursuant to sub-sections 58(9) and (10), by document dated 9 July 1984, recommended to the Commission that the Commission dismiss the appellant from the Service and he furnished to the Commission, with that recommendation, the particulars required to be furnished under sub-section 58(10).
Sub-section 58(11) confers powers on the Commission following receipt of a recommendation under sub-section 58(9). The power relevant for these proceedings, is set out:-
"(11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section (10) ...
(b) decide -
(i) to give effect to the recommendation; ... ."
Mr. D.J. Robinson was an officer authorized by the Commission for the purposes of sub-section 58(11). The solicitors acting for the appellant at the hearing of the application formally admitted that fact for the purposes of those proceedings. On 16 July 1984, Robinson exercised the power conferred by sub-section 58(11) and dismissed the appellant from the Service. The notification of that dismissal is set out:-
"AUSTRALIAN TELECOMMUNICATIONS COMMISSION
NOTIFICATION OF FINDING & DECISION IN RELATION TO A CHARGE UNDER SECTION 58 OF THE TELECOMMUNICATIONS ACT 1975
To: Clyde Francis MUNNINGS
Clerk Class 2/3
SUPPLY BRANCH
The Charge preferred against you on the twenty-third day of May 1984, namely:
'That the said Clyde Francis MUNNINGS, on the twenty-first day of May 1984 wilfully disregarded a direction namely, that he attend for a medical examination by the Commonwealth Medical Officer at Kirksway House, Hobart, at 11.30 am on Monday, the twenty-first day of May, 1984, given to him in his official capacity by Geoffrey Peter PULLEN, Manager, Supply Branch, a person authorised to give the said direction'
has been considered and found proven.
By virtue of the powers conferred upon me by sub-section 58(9) of the said Act, I direct that you be dismissed from the service of the Australian Telecommunications Commission.
Dated this sixteenth day of July 1984."
The notification was signed by Robinson as "Authorised Officer." The appellant received the notification.
Under sub-section 58(15), a decision under s.58 with respect to an officer does not take effect, if the officer appeals against the decision, unless the appeal lapses, is withdrawn or a Disciplinary Appeal Board confirms the decision. The appellant appealed from the decision made by Robinson.
Under s.62, an officer may appeal to a Disciplinary Appeal Board against a decision given with respect to him under s.58. Wide powers are conferred upon an Appeal Board in the hearing and determination of an appeal. Many express powers are conferred upon it by the Telecommunications Regulations made pursuant to s.112 and sub-section 62(4) of the Telecommunications Act. Regulations 15 to 30 contain provisions relating to Appeal Boards. From a consideration of the Act and the Regulations, there can be no doubt that the hearing of an appeal by an Appeal Board is in the nature of a hearing de novo in which witnesses may be compelled to attend and give evidence. For present purposes it is necessary to set out one Regulation only, namely Regulation 19:-
"19. Subject to these Regulations, in the hearing of a disciplinary appeal by a Disciplinary Appeal Board -
(a) the Board may inform itself in such manner as it thinks fit;
(b) the procedure to be followed shall be as determined by the Board;
(c) the Board is not bound by the rules of evidence; and
(d) the Board shall proceed without regard to legal forms or solemnities."
Under sub-section 62(3) of the Act, an Appeal Board may take evidence on oath or affirmation. Sub-section 62(5) is set out:-
"(5) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the ... decision against which the appeal is made."
Under sub-section 62(8), an Appeal Board is required to give reasons in writing for its decision on an appeal while under sub-section 62(9):-
"(9) The Commission shall take such action as is necessary to give effect to the decision of a Disciplinary Appeal Board."
The appellant appealed against the decision of Robinson, notice of which is dated 16 July 1984. The notice of appeal is dated 31 July 1984 and was against the finding and penalty. The grounds of appeal are set out:-
"The grounds of appeal are :-
1) Mr D. J. McCarthy had a prior interest in the matter and should therefore have disqualified himself from proceeding to determine the charge.
2) There was no evidence which, being properly considered, would allow a finding that the subject charge was proven.
3) The misrepresentation which Telecom knowingly made to the appellant, as to the reason for requiring him to be medically examined, was acted upon in good faith by the appellant to his disadvantage.
4) The said misrepresentation raises an estoppel between Telecom and the appellant, Telecom being now precluded from asserting that its several Directions to the appellant were other than for medical examination to determine his blood pressure.
5) Telecom wrote to the C.M.O. recklessly, not caring whether its allegations (about the appellant) were true. Telecom refused to correct one allegation which it knew to be false.
6) The appellant did (not) willfully disregard a lawful direction, by Telecom, that he attend the C.M.O. ."
On 29 August 1984, the appellant was provided with a copy of the recommendation and the particulars required to be furnished under sub-section 58(10) which McCarthy had given to the Commission. By letter dated 15 October 1984, the appellant wrote to the Commission pointing out that the charge found against him referred to a direction given by Pullen and stating that Pullen had not directed him to attend for a medical examination on 21 May 1984. A reference to the particulars furnished by McCarthy shows that he had set out, correctly, that Griggs had directed the appellant to attend for the medical examination.
By letter dated 16 October 1984, the Commission notified the appellant that when the appeal came on for hearing before the Appeal Board on 22 October, it would seek to amend the charge and the notification of finding and decision by deleting the words "Geoffrey Peter Pullen" and in lieu thereof inserting the words "Roger William Griggs." The Commission refused to consent to an adjournment of the hearing of the appeal which adjournment had been sought by the appellant in his letter of 16 October if the Commission sought an amendment. It is noted that the changing of the names without the consequential changing of titles resulted in an error appearing in the charge. It should be noted also that Pullen had not directed the appellant to attend any medical examination on 21 May 1984 or at any time thereabouts and that there was no room for confusion arising from the wrong name appearing in the charge.
The hearing before the Appeal Board commenced on 22 October 1984. Despite the objection by the appellant, the Appeal Board allowed the amendment sought by the Commission and refused the adjournment sought by the appellant. The hearing of the appeal at which the appellant appeared on his own behalf, occupied 12 sitting days extending to 25 January 1985. The Commission called 7 witnesses and tendered 22 documents. The appellant called 11 witnesses and tendered 77 documents. There were 2,333 pages of transcript. In addition, further material was placed before the Appeal Board at a special sitting before a Mr Charlton, in accordance with the Regulations, on 25 February 1985, which resulted in a further 190 pages of transcript.
The Appeal Board published its decision and reasons for decision on 19 April 1985. The Appeal Board confirmed the decision to dismiss the appellant. Its reasons for decision were very comprehensive and dealt with all aspects of the material relied upon by the appellant. Most of that material related to matters extending over a long period affecting the relationship between the Commission and the appellant including previous disciplinary proceedings and an appeal to another Disciplinary Appeal Board. It is difficult to see the relevance of most of those matters to the appeal being heard by the Appeal Board. In reality, what the appellant was seeking was a general inquiry into the relationship between the Commission and himself. At the hearing of the appeal before this Court, the appellant who appeared on his own behalf, attempted to adopt the same course but this Court refused to permit him to do so. The charge against the appellant was simple, namely, that he wilfully disregarded a direction given to him to attend for a medical examination. The appellant had no intention to attend for that medical examination. A number of matters of defence were raised but the hearing of the appeal before the Appeal Board should not have taken so long.
The Appeal Board was very conscious of the problem. It dealt very sympathetically with the appellant and his allegations and allowed him "a good deal of latitude" both in cross-examination of witnesses called by the Commission and in evidence led on behalf of the appellant. It very carefully prepared and worded its reasons for decision. The Appeal Board dealt with the allegations of the appellant against the Commission and against his superior officers. Some extracts from those reasons are set out:-
"From its consideration of all the evidence in this appeal the Board is satisfied beyond reasonable doubt that the Appellant had an invincible belief that of his superior officers Messrs. McCabe and Townsend at least were grossly incompetent and so biased against him that they had in fact managed to engineer his dismissal. ... "
"The weight of evidence before the Board is unequivocably the other way. The Appellant failed completely in his attempt to establish a general incompetence on the part of Messrs. McCabe, Townsend and Pullen or, for that matter, on the part of any other officer of the Commission. The Appellant also attempted to show that those three officers were biased against him. And Mr Townsend, at least had demonstrated over a long period, a malicious bias towards him. The Board was satisfied that the evidence did not support the allegation of bias on the part of Messrs McCabe and Pullen. Nor did it indicate that Mr Townsend had acted out of sheer malice towards him. There were hints throughout the proceedings that at some time a personal relationship had existed between the Appellant and Mr Townsend. The Board was unable, however, to draw any conclusions as to the nature of that relationship and the effect it might have had on their respective roles within the Commission. What is clear is the Appellant had become such a thorn in Mr Townsend's side that there was a general antipathy between them. But on the evidence before it the Board could not determine whether, on Mr Townsend's side, that antipathy could be said to amount to a bias of some kind. ... "
"In summary the Board accepts that for all of these reasons Messrs Pullen, McCabe and Townsend had every reason to believe that they could no longer tolerate the Appellant's behaviour within the Branch. The final direction, given by Mr Griggs, that he should attend the Commonwealth Medical Officer was, in the Board's view, a reasonable one in all the circumstances. ... "
"The Board makes one further and more general observation in respect of this entire matter. It is clear that by May 1984 the basis of the employment relationship between the Appellant and the Commission had been shattered, perhaps irretrievably. Of his supervisors, the Appellant held at least Messrs McCabe and Townsend in contempt. For the Commission's part, a number of officers, including the Manager of the Appellant's own Branch, had been driven into a state of angry frustration. Of the disruption to the normal work of the Branch and the unacceptable additional administrative costs which were being incurred as a result of the Appellant's behaviour there can be no doubt. Nor can it be doubted that an employer is entitled to give lawful and reasonable directions to his employees. The Appellant had demonstrated all too clearly that he had no intention of complying with the direction in question in this appeal. Nevertheless, all members of the Board were saddened by the plight of the Appellant."
At the hearing of the application under the Judicial Review Act, the appellant was represented by counsel. The grounds and particulars thereof relied upon and as amended finally during the course of the hearing, were lengthy and difficult to understand. In substance, the grounds relied upon can be summarised:-
1. By-law 51 was invalid and thus the appellant was not under any obligation to attend for the medical examination.
2. The reliance on By-law 51 was invalid since Griggs could not have "reason to believe" that the appellant was in such a state of health as to render him incapable of his duties.
3. That Griggs had no authority or power to give the direction.
4. That as a result of his suspension without pay on 18 May 1984, the appellant was under no duty to attend for medical examination on 21 May 1984.
5. That the amendment of the charge allowed by the Appeal Board vitiated the whole of the proceedings before the Appeal Board.
It should be noted that there was no ground alleging that the Appeal Board, properly directing itself as to all relevant matters of law, could not have reached the conclusion that the appellant had wilfully disregarded the direction given to him by Griggs. This is the "no evidence" ground. At the hearing of an application under the Judicial Review Act, the Court should be careful not to exercise discretions and to apply facts which are properly the function of the person who made the decision sought to be reviewed.
The trial Judge dismissed the application. He gave careful consideration to all the grounds relied upon by the appellant. Although properly stating the law that the Court does not exercise the discretions of the decision maker, the trial Judge, to some extent, examined the material before the Appeal Board and came to the same conclusions as the Appeal Board.
As stated above, the appellant appeared in person on the appeal. He had prepared the notice of appeal. In his supplementary notice of appeal he set out 34 grounds of appeal. Most of these were not in proper form but at least formed the basis of submissions. Many raised matters which had not been raised at the hearing of the application. The appellant, at the hearing of the appeal, sought to retract concessions made by his lawyers at the hearing of the proceedings before the trial Judge, particularly with respect to the authority of officers of the Commission. The Full Court refused the appellant leave to do that. The proceedings before the trial Judge were conducted on the basis of those admissions and concessions and the appeal also must be so conducted. Pursuant to a notice to admit, the solicitors for the appellant formally admitted the authority of Pullen, McCarthy and Robinson for the purposes of sub-sections 58(3), (5) and (11) of the Act respectively. The appellant is bound by those admissions for the purposes of this appeal. In addition, the respondents sought the following admissions under the notice to admit, namely:-
"1. That Roger William Griggs was at all material times an officer delegated to issue a direction pursuant to By Law 51 of Telecommunications (Staff) By Laws.
2. That no formal evidence of the delegation referred to in paragraph one hereof was placed in evidence before the Respondents."
In their Notice of Admission, the solicitors for the appellant responded as follows:-
"1. The applicant is unable to admit the Notice of Facts set out in Paragraph 1, of the Notice dated July 22 1986, because the fact is not within the knowledge of the Applicant. The Respondent through its solicitor had indicated to Counsel for the Applicant that it would supply sufficient material to enable this admission to be made. If such material is produced, and is sufficient to show the accuracy of the statement, then such an admission will be made.
2. The applicant admits paragraph 2."
At the hearing of the application, counsel for the appellant admitted that Griggs was an officer of the Commission and on 8 May 1984 and also, if relevant, on 16 May had a delegation and authority to give the direction under By-law 51. As a result, counsel for the respondents announced that he would not tender the formal delegation as evidence. It should be noted that at the hearing before the Appeal Board, the appellant did not raise any question relating to the lack of delegated authority in Griggs to give the direction under By-law 51. The appellant cannot raise that issue now.
Under paragraph 111(1)(g) of the Act, the Commission is empowered to make By-laws, not inconsistent with the Act and the regulations made under s.112 of the Act, making provision for, or with respect to:-
"(g) the terms and conditions of employment of officers and employees."
The Commission has made By-laws pursuant to that power. The By-laws are cited as the Telecommunications (Staff) By-laws. They comprise an extensive and comprehensive set of rules making provision with respect to the terms and conditions of employment of officers and employees of the Commission. Division 4 of Part II of the By-laws, comprising By-laws 42 to 52 inclusive, is headed "Sick Leave" and deal with the granting and taking of sick leave by officers. By-law 51 is set out:-
"51. (1) If the Commission has reason to believe that an officer is in such a state of health as to render him incapable of performing his duties or constitute a danger to his fellow officers or the public, the Commission may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a medical officer of the Department of Health or a medical practitioner named by the Commission.
(2) Upon receipt of the medical report, the Commission may direct the officer to absent himself from his duties for a specified period, or, if already on leave of absence, direct him to continue on leave for a specified period, and the officer's absence shall be regarded as absence on leave owing to illness."
It is to be noted that that By-law prescribes a method by which the Commission has power to direct an officer to take sick leave. Sick leave, obviously, is a matter coming within the power to make By-laws for or with respect to "the terms and conditions of employment of officers." By-law 51 is valid. See also Trigger v. Australian Telecommunications Commission (1984) 4 FCR 242.
Mr Griggs had authority to require the appellant to submit himself for examination by a medical officer of the Department of Health. He exercised that authority and gave the direction of 8 May 1984. That direction could be given only if Griggs, exercising his delegated authority, "had reason to believe" that the appellant was in such a state of health as to render him incapable of performing his duties. Much of the hearing before the Appeal Board was directed to the question of whether Griggs had that "reason to believe" at the time he gave the direction of 8 May. It should be noted that "reason to believe" is not to be equated with establishing as a fact that the appellant was in such a state of health as to render him incapable of performing his duties. During the hearing of the appeal before us, it was quite apparent that the appellant either did not understand or refused to admit the difference between a reason to believe and the proof of the fact that the appellant was in such a state of health as to render him incapable of performing his duties. As a result of the refusal by the appellant to attend for the medical examination the provisions of By-law 51(2) could not be applied. At no stage was it relevant whether the appellant was in such a state of health as to render him incapable of performing his duties and thus could be required to take sick leave.
The Appeal Board gave careful consideration to all the material before it and found that Griggs did have "reason to believe." It is not necessary for this Court to refer to all that material, it is sufficient to say that there was ample evidence to support that finding. On no view could it be said that there was no evidence before the Appeal Board to support that finding. The trial Judge held that the finding by the Appeal Board on this issue was justified. We agree.
In any event, the trial Judge held that at common law, Griggs had power to give the direction of 8 May 1984. We do not express any view on that issue, but a reference to Hart's Case and to Trigger's Case tends to support the opinion of the trial Judge. See also Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299 per Mason J. at pp 307-8.
From what has been said earlier, it is clear that Griggs had the authority to give the direction to the appellant to attend for a medical examination.
The fourth ground relied upon by the appellant depends upon facts which have not been set out. Following receipt of the letter of 8 May 1984, the appellant, on Wednesday 16 May, applied for sick leave to keep an appointment with his own doctor at 11.00 a.m. on Monday, 21 May, being the day and time at which he had been directed to attend the Commonwealth Medical Officer. By letter dated 16 May 1984 and handed to the appellant on that day, Griggs wrote to the appellant acknowledging receipt of the application for sick leave on 21 May and directing the attention of the appellant to his letter of 8 May. The letter continued:-
"If there are emergent circumstances that prevent your attendance at the Commonwealth Medical Officer's appointment, I would appreciate written advice stating your reasons for your inability to attend. This advice, by close of business 17 May 1984, is required so that alternative arrangements may be made for your medical examination."
The appellant did not give any written advice as suggested in that letter on 17 May or at all. On Thursday, 17 May, the appellant was absent from work on sick leave. He spoke to Griggs by telephone confirming that he, the appellant, would not keep the appointment with the Commonwealth Medical Officer. At no time did he give any reason why that appointment could not be kept. By notice dated 17 May 1984, Griggs, in the purported exercise of powers conferred by s.59 of the Telecommunications Act, suspended the appellant from duty. The notice is set out:-
"Whereas I have reason to believe that you may have failed to fulfil your duty as an officer within the meaning of Section 58 of the Telecommunications Act 1975,
And Whereas I am of the opinion that it would be prejudicial to the effective operation of the Commission if you were to continue to perform the duties of your position.
Now Therefore I suspend you from duty forthwith."
The notice was handed to the appellant on Friday, 18 May.
Section 59 empowers the Commission to suspend officers. For present purposes, the relevant parts of the section are set out:-
"59. (1) Where -
...
(b) the Commission is of the opinion that an officer may have failed to fulfil his duty as an officer,
and the Commission is of the opinion that it would be prejudicial to the effective operation of the Commission, to the interests of the public or to the interests of the officer and his fellow officers if the officer were to continue to perform the duties of his existing position, the Commission may, by notice in writing -
(c) suspend the officer from duty."
Under sub-section 59(2) where an officer is suspended on this ground, before he is charged with misconduct:-
"he shall, until an officer authorized for the purposes of sub-section 58(3) decides whether he should be charged, be deemed to be absent on leave of absence with salary."
Under sub-section 59(6) an officer while suspended without salary is entitled to engage in paid employment.
There appears to be no material before this Court showing that the appellant was suspended from duty without salary. The notice of suspension does not in itself have that effect. On the facts before the Court, until 23 May 1984 when the appellant was charged under s.58, sub-section 59(2) applied and the appellant was "deemed to be absent on leave of absence with salary." The notice of suspension has endorsed on it in handwriting the words "Suspension without pay." That could operate only after 23 May 1984. That was the basis acted upon by the trial Judge in rejecting this contention by the appellant. Before the Full Court, the appellant claimed that on 21 May 1984 he was suspended without salary and was entitled to engage in paid employment. Accordingly, he contended, in any event, he was suspended from duty on 21 May 1984 and accordingly was not required to attend the Commonwealth Medical Officer on that day.
Further, the appellant claims that the suspension was unlawful and therefore invalid. If that is correct, there is no doubt he was under a duty to attend the Commonwealth Medical Officer. It is not for this Court to determine whether the suspension was invalid. The facts as found by the Appeal Board are that the appellant had told Griggs he would not attend for the medical examination and that he had not forwarded any written request pursuant to the letter from Griggs dated 16 May. Although suspended from duty, the appellant remained an officer of the Commission. He was not required to perform his normal duties as an officer but that does not mean he was excused from obeying the duty cast upon him as a result of the direction given under By-law 51. That direction was but a step in a process of determining whether the appellant should be granted sick leave. There is no substance in this contention by the appellant.
The fifth ground relied upon by the appellant remains to be considered. This ground is based upon the contention that the charge laid against him was wrong in that it alleged that he had disregarded a direction given by Pullen when in fact Pullen had not given the direction, it having been given by Griggs. The appellant claims that the Appeal Board should not have allowed the amendment to the charge and further that, on the amendment being made, he should have been granted an adjournment to prepare to meet the charge as amended.
There are really two separate lines to this submission. It could be argued that before the Appeal Board had jurisdiction to hear and determine the appeal by the appellant, the procedures provided by s.58 of the Telecommunications Act had to be complied with strictly. On the facts of this case, it was apparent that the charge dealt with by the officers of the Commission was different from the charge dealt with by the Appeal Board and therefore the conditions precedent to the Appeal Board having jurisdiction to hear and determine the appeal had not been complied with and therefore the decision of the Appeal Board was invalid.
There are two answers to that contention. If correct, the decision made by Robinson on 16 July 1984 that the appellant be dismissed from the Service remains. That decision has not been challenged in the Court. It is now too late to challenge that decision. Secondly, the grounds of the appeal to the Appeal Board do not contain a ground based on the misnaming of the person who gave the direction under By-law 51. It may be that the appellant did not know of the error at the time he gave notice of appeal. Nevertheless, he had been given notice of the charge against him. He should have noticed the error, if it was of importance to him and raised the matter when McCarthy was considering the charge. He did not do that. Further, the particulars required to be furnished by McCarthy under sub-section 58(10) make it clear that he was under no misapprehension. He stated that Griggs had given the direction and referred to the letter of 8 May 1984.
The second line of the submission goes to the power of the Appeal Board to allow the amendment. It was hearing the charge de novo and had to determine the appeal on the material placed before it. It had wide powers to determine how the appeal was to be heard and of necessity it had a power to ensure that the real charge against the appellant should be heard and determined. Thus it had the power to allow the amendment sought. The name of the person giving the direction is not an essential part of the charge. The charge is that the appellant wilfully disregarded a direction to attend for a medical examination at 11.30 a.m. on 21 May 1984. The giving of the name of the person who gave that direction is in the nature of particulars of the direction helping to identify the particular direction. It could be used also to ensure that the person giving the direction had the authority to give the direction. On the facts of the present case, there is no room for doubt or confusion arising from the misnomer. One direction only had been given. The appellant had had conversations with Griggs concerning the direction. The appellant had made it clear to Griggs that he would not attend for that medical examination. The appellant should not have been surprised by the charge being made against him, the only surprise being that Pullen was named, not Griggs. The appellant did nothing about it. In all the circumstances, the Appeal Board had power to give leave to the Commission to amend the charge and exercised that power quite correctly. Likewise, there was nothing wrong in the refusal to grant the appellant an adjournment of the hearing of the appeal following the amendment.
The other matters sought to be raised by the appellant related to issues not raised by the application. The appellant cannot raise these matters on this appeal.
Accordingly, the appeal should be dismissed with costs.
JUDGE2
This is an appeal from orders made by a Judge of the Court (Everett J.), dismissing an application by the appellant, an officer of the Australian Telecommunications Commission ("the Commission"), under the Administrative Decisions (Judicial Review) Act 1977 seeking an order of review of a decision of the respondents, who constituted a Disciplinary Appeal Board ("the Board") under s.63 of the Telecommunications Act 1975 ("the Act"), by which the Board confirmed a decision of the Delegate of the Commission in relation to a charge against him under s.58(3)(b) of the Act. The charge against the appellant was that he wilfully disregarded an official direction that he submit himself for a medical examination. The direction was purportedly given pursuant to Telecommunications (Staff) By-law 51 as follows:
"Health of officer dangerous to others.
51. (1) If the Commission has reason to believe that an officer is in such a state of health as to render him incapable of performing his duties or constitute a danger to his fellow officers or the public, the Commission may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a medical officer of the Department of Health or a medical practitioner named by the Commission.
(2) Upon receipt of the medical report, the Commission may direct the officer to absent himself from his duties for a specified period, or, if already on leave of absence, direct him to continue on leave for a specified period, and the officer's absence shall be regarded as absence on leave owing to illness."
There was no dispute that the appellant failed to observe the direction. The Delegate found the charge proved and recommended dismissal. On appeal to the Board, the decision to dismiss was confirmed.
The relevant legislative scheme is found in Division 6 of Part V of the Act. Part V deals with staff of the Commission and Division 6 deals with dismissals and punishments. An officer shall be taken to have failed to fulfil his duty as an officer (i.e. "misconduct") if, inter alia, he "wilfully" disobeys or "wilfully" disregards a direction given to him as an officer and given by a person having authority to give the direction (s.58(1)(a)). Where an officer authorised for the purpose by the Commission is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorised officer shall, as soon as practicable, decide whether he should be charged and if he decides that the officer should be charged, by writing under his hand delivered to the officer, charge the officer with the failure (s.58(3)(b)). Where an officer is charged with misconduct, an officer authorised by the Commission for the purpose, not being either the supervisor of the officer charged or an officer authorised to lay the charge, shall, without undue delay, hold an inquiry into the charge (s.58(5)). Where the officer who held an inquiry into the charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may, inter alia, direct that a sum not exceeding $40.00 be deducted from the salary of the officer (s.58(9)(b)); or recommend to the Commission, in writing, that the Commission dismiss the officer from the Service (s.58(9)(d)(iii)). Where an officer makes a recommendation specified in s.58(9)(d), he shall furnish to the Commission, with his recommendation, full particulars of his findings in relation to the facts giving rise to the misconduct (s.58(10)). The Commission may then, inter alia, decide to give effect to the recommendation (s.58(11)). A decision under s.58 by the Commission or by an officer authorised under s.58(5) does not have effect - if the officer appeals - unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board ("a Board") confirms, either with or without a variation, the decision (s.58(15)) (see Trigger v. Australian Telecommunications Commission (1984) 4 FCR 242 at pp 250,254).
An officer may appeal to a Board against a decision made with respect to him by an officer or the Commission under s.58 (s.62(1)(a)). A Board shall hear each such appeal and may confirm, vary or set aside the decision (s.62(5)).
Before going to the detail of the arguments advanced on the appeal, it should be noted that a significant part of the appellant's submissions was directed at the background facts lying behind the dispute. On an application for an order of review under the Judicial Review Act, in considering whether a ground for review has been established, it is, of course, open to the court to determine the underlying facts for itself. The court will give considerable weight to the decision sought to be reviewed so far as the decision turns on the facts. The degree of weight will depend upon the circumstances (see Re Ludeke; Ex parte Queensland Electricity Commission (1985) 60 ALR 641 at p 645 (Full High Court)). But, if necessary, a party may seek to prove, by admissible evidence, other facts (see Australian Communist Party v. The Commonwealth (1951) 83 CLR 1 per Williams J. at p 225; Lane, The Australian Federal System, 2nd ed. at p 1087). In the proceedings before Everett J., the parties relied on the material previously before the Boards together with the reasons for their decisions. In those circumstances, there were obvious difficulties confronting the appellant in inviting us to substitute our view of the facts for the findings made by the Board. Apart from the rare case of a total lack of evidence on the point in question, judicial review of purely factual questions is usually not available both under the Judicial Review Act and under s.39B of the Judiciary Act 1903 on an application for a prerogative writ (see, e.g. Hotop, Principles of Australian Administrative Law, 6th ed. at p.253). The appellant (who appeared before us in person, although represented by counsel before Everett J.) seemed not to appreciate the difficulty he faced in persuading us on an appeal to make a series of findings of primary facts.
The history of the matter is long and complicated. It is recited in three main sources: first, the reasons for decision of a Board given on 9 December 1983 ("the first Board decision"); secondly, the reasons for decision of the Board given on 19 April 1985 (the decision sought to be judicially reviewed); and, thirdly, the reasons for judgment of Everett J. given on 17 November 1986. It is unnecessary to repeat that material here. I will mention only those facts which bear upon the questions which arise on the appeal.
In his supplementary notice of appeal, the appellant seeks to set aside the orders made by Everett J. He also seeks a number of declarations and orders, including a declaration that his dismissal was invalid and an order for his reinstatement. It is convenient to deal in turn with each of the grounds of appeal as follows (Ground 1 was formal only):
"2. The learned Judge erred in holding that By-law 51(1) of the Telecommunications (Staff) By-laws, is a valid exercise of power by the Australian Telecommunications Commission to act under the provisions of section 111(1)(g) of the Telecommunications Act 1975.
By s.111(1) of the Act, the Commission "may make By-laws, not inconsistent with the Act and the regulations, prescribing all matters which are required or permitted to be prescribed by the By-laws, and making provision for, or with respect to -
....
(g) the terms and conditions of employment of officers and employees;..."
In my opinion, By-law 51 is within power. It does not "go outside the field of operation which the Act marks out for itself" (see Morton v. Union Steamship Co. of New Zealand Ltd. (1951) 83 CLR 402 at p 410; Shanahan v. Scott (1957) 96 CLR 245 at p 250; The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at p 187; Pearce, Delegated Legislation at pp 118-9; Bennion, Statutory Interpretation at p.146). There is an obvious connection between the employment of an officer and his state of health. A law prescribing procedures to be followed with a view to checking an officer's medical condition is a law with respect to the terms and conditions of his employment and is thus within the power conferred by s.111(1)(g) (cf. Trigger, supra, at pp.256-7).
The third ground of appeal is as follows:
"3. The learned Judge erred in holding that Mr Griggs is able to exercise the powers of the Australian Telecommunications Commission, in relation to By-law 51, without formal delegation."
It appears that this ground was not raised below.
The direction in question was given by Mr R.W. Griggs, Chief Manager, Personnel and Industrial Relations.
Provision is made by s.33(1) of the Act for the Commission, by instrument under seal, to delegate to, inter alios, an officer or employee, any of its powers under the Act. Although no instrument of delegation was tendered in evidence before Everett J., it was conceded before the learned judge by the appellant's counsel that all necessary authorisations and delegations had been given or made. Even if this concession had not been made on behalf of the appellant, the ordinary presumption of regularity would apply (see Cross on Evidence third Australian Edition (D.M. Byrne Q.C. and J.D. Heydon) at p.28). At any rate, in an application for judicial review, the onus was on the appellant to demonstrate that, in fact, Mr Griggs lacked the requisite authority to act. It follows, in my view, that even if the appellant were entitled to raise the matter now, there is no substance in this ground of appeal.
The next ground of appeal is:
"4. That By-law 51(1) of the Telecommunications
(Staff) By-laws is invalidated by the manner in which the Australian Telecommunications Commission purports to delegate its authority to act, under the said By-law."
It was suggested that only the Commission itself could act under By-law 51. The submission must be rejected as contrary to the facultative provisions of s.33 of the Act and, if necessary, an implied power to delegate (see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299 per Mason J. at p 307).
The fifth ground of appeal is:
"5. The learned Judge erred in failing to hold that the Direction to the Appellant by Mr Griggs, on 8th May 1984, was vitiated by the refusal of Mr Griggs to discuss the reason for his belief, with the Appellant."
It appears that this ground was not raised below.
It is a condition precedent to the operation of By-law 51 that the Commission, acting through one of its officers, have "reason to believe" the matter stated in the By-law. This does not mean that this question is unexaminable by a court (see the cases cited by Ormiston J. in Commission for Corporate Affairs v. Guardian Investments Pty. Ltd. (1984) VR 1019 at p 1023; and see National Companies and Securities Commission v. Sim (No. 1) (1987) VR 411 at p 419). The Commission must hold the requisite belief and there must be a reasonable ground or grounds for holding it (see W.A Pines Pty. Ltd. v. Bannerman (1980) 30 ALR 559 per Lockhart J. at pp 571-2). A reasonable ground does not, of course, mean that it is the better or the preferred view. A reasonable ground is one that is not irrational, absurd or ridiculous (see Attorney-General's Department v. Cockcroft (1986) 64 ALR 97 at p 106).
In the present case, the learned judge was satisfied first, that Mr Griggs held the requisite belief and, secondly, that he did so on reasonable grounds. The first finding was one of primary fact. It was not, and could not be, seriously disputed. The second finding was largely one of fact, albeit secondary in character. The appellant now seeks to challenge it on the ground that there was an obligation upon Mr Griggs to discuss his reasoning process with the appellant. There was no such obligation, express or implied. There is no ground established for interference with the second finding made by Everett J. This ground of appeal should be rejected.
Next is the sixth ground :
"6. The learned Judge erred in failing to hold that a letter to the Appellant from Mr Griggs, dated 16th May 1984, was of such uncertain denotation that the Appellant could not be found to have wilfully disregarded the Direction."
The direction in question was given on 8 May 1984. It directed attendance upon the Commonwealth Medical Officer at 11.30 a.m. on 21 May. On 16 May, the appellant submitted an application for sick leave so as to keep a doctor's appointment at 11.00 a.m. on 21 May. Mr Griggs wrote to the appellant on 16 May :
"I am in receipt of advice from your Manager, Mr G.P. Pullen, that you have in turn sought from your Line Supervisor sick leave approval in advance to keep a doctor's appointment at 11.00 am on Monday, 21 May 1984.
May I direct you to my letter of 8 May 1984 which instructed you to keep the appointment with the Commonwealth Medical Officer on Monday, 21 May 1984 at 11.30 am.
If there are emergent circumstances that prevent your attendance at the Commonwealth Medical Officer's appointment, I would appreciate written advice stating your reasons for your inability to attend. This advice, by close of business 17 May 1984, is required so that alternative arrangements may be made for your medical examination."
Everett J. accepted the following version of Mr D.J. McCarthy, Acting Manager, General Personnel Services, of the events which subsequently occurred -
"Mr Munnings spoke to Mr Griggs by phone during the afternoon of Tuesday, 17 May 1984. Mr Griggs prepared a file note on their discussion. It records that Mr Griggs attempted to persuade Mr Munnings to reconsider his decision not to attend the Commonwealth Medical Officer. Mr Munnings kept pressing for the reasons for the referral and finally indicated he would be keeping his private appointment. He at no time gave any reasons why the pre-arranged appointment with the Commonwealth Medical Officer should not be kept."
The letter of 16 May, whether looked at in isolation or in the light of the subsequent events, could not have misled the appellant. Its terms were plain enough and, if it matters, were reasonable. I reject this ground of appeal.
The seventh ground of challenge is:
"7. The learned Judge erred in failing to hold that the suspension from duty of the Appellant, by the Commission, in anticipation of a future default by the Appellant, was beyond the powers of the Commission."
It appears that this ground was not raised below.
The suspension of the appellant was not a matter directly in question before Everett J. Nor did it even have any collateral significance. If the suspension were valid, no further question could arise for our purposes. On the other hand, even if the suspension were not valid (a question I do not need to consider), its invalidity could not bear upon the appellant's independent obligation to comply with a direction given under By-law 51. On any view, the purported suspension could not affect his obligation to submit himself for medical examination (cf. Csomore v. Public Service Board of N.S.W., Rogers J., Supreme Court of New South Wales, unreported, 4 November 1986; G.J. McCarry, No Work No Pay (1987) 3 Australian Bar Review 174 at p.177).
By appeal ground 8:
"8. The learned Judge erred in failing to hold that the Appellant, being suspended from duty without salary in breach of section 59(2) of the Telecommunications Act 1975, was not required to comply with any Direction of the Commission, which required performance by the Appellant on 21st May 1984."
The reasons for rejection of ground 7 apply here also.
Next is ground 9:
"9. The learned Judge erred in failing to hold that a 'requirement' made by the Commission under By-law 51(1), could not subsequently be characterised as a 'direction' for the purpose of supporting an allegation, by the Commission, that the Appellant was in breach of section 58(1)(a) of the Telecommunications Act 1975."
It will be remembered that s.58(1)(a) speaks of wilful disregard of a "direction". There is no statutory definition of what is a "direction". "Order" and "direction" are usually interchangeable terms (see Benson v. Benson (1941) P 90 at p 97). Under the general law, an employee is bound to obey all lawful and reasonable orders (see G.J. McCarry, The Employee's Duty to Obey Unreasonable Orders (1984) 58 ALJ 327; op. cit., 3 Australian Bar Review at p.176). Section 58(1)(a) reflects this notion. Although By-law 51(1) is framed in terms of a "requirement", this is clearly the same thing as an order or direction. It follows that a requirement under the By-law constitutes a "direction" for the purposes of s.58(1)(a). I reject this ground of appeal.
By the tenth ground of appeal:
"10. The learned Judge erred in failing to hold that the Commission was not empowered to authorise an enquiry and dismiss the Appellant, without first advising the Appellant that which was alleged against him."
As has been noted, s.58 prescribes a number of procedures designed to afford an officer charged with misconduct an adequate opportunity to know what is alleged against him. Everett J. found that those procedures had been complied with here. I agree with his conclusions and, in particular, with his finding that, at all material times, the appellant was apprised of the nature of the charge against him. It must follow that this ground of appeal fails.
Ground 11 is:
"11. The learned Judge erred in holding that the Respondents had jurisdiction to amend the charge, which was the subject of an appeal before them, to enable the said charge to conform with a prior finding of the Commission delegate."
In its reasons, the Board said:
"Charge 5, as it was served on the Appellant, stated that on 21 May 1984 he had wilfully disregarded a direction...'given to him in his official capacity by Geoffrey Peter Pullen, Manager, Supply Branch, a person authorised to give the said direction'... In fact the direction in question was given by Mr R.W. Griggs, Chief Manager, Personnel and Industrial Relations Department. On 16 October 1984 (the week prior to the commencement of the hearing of these appeals), Mr D.J. McCarthy, Manager, General Personnel Services Branch, wrote to the Appellant. That letter stated, inter alia, 'When the Disciplinary Appeal Board convenes on Monday, 22 October, Telecom Australia will seek to amend the Charge and the Notification of Finding and Decision. The amendment to be sought will be to delete the words 'Geoffrey Peter Pullen' and to insert the words 'Roger William Griggs'.' Mr Cunningham submitted formally that Charge 5 should be amended in those terms and that the appeal should proceed accordingly."
Everett J. was of the view that the Board "acted properly" in permitting the amendment.
In my opinion, the misstatement of the identity of the person giving the direction did not invalidate the charge. Read as a whole, the charge made it plain enough that the misconduct complained of was the appellant's failure to attend for a medical examination on 21 May. There was only one official direction of that kind given requiring attendance on the Commonwealth Medical Officer on that date. There was thus no room for any suggestion that the appellant could reasonably have been misled by the misnomer. Rather it is a case of application of the maxim falsa demonstratio non nocet (see, e.g. Wingadee Shire Council v. Willis (1910) 11 CLR 123 at p 148).
In any event, the "appeal" to the Board was in the nature of a hearing de novo (see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR 616). That being so, the question before the Board was not whether the Delegate's decision was correct. There was a fresh hearing, upon fresh evidence, before the Board. In that context, it was open to the Commission to indicate to the appellant before that hearing that there was a misnomer in the wording of the charge. If, as I doubt, there was any room for confusion previously, it was thereby removed. I agree with Everett J. that the Board acted properly in this regard. The appellant has no proper grounds for complaint on this score.
The 12th and 13th grounds are -
"12. The learned Judge erred in failing to hold that delegations numbered one and two of schedule F, Commission exhibit C6, are invalid.
13. That insofar as delegation number 18 of schedule K purports to authorise certain officers of the Commission to form an opinion on behalf of the Commission, for the purpose of By-law 51(1), it is ultra-vires."
It appears that these grounds were not raised below.
Given the concessions at the trial, no question can arise here as to the validity of the delegations.
Grounds 14, 15 and 16 may be considered together -
"14. The learned Judge erred in failing to hold that the persons who made the decision to dismiss the Appellant had not discharged the onus provided for in section 58 of the Telecommunications Act 1975.
(It appears that this ground was not raised below)
15. The learned Judge erred in failing to hold that section 58(1)(a) of the said Act did not apply in the circumstances of the dismissal of the Appellant.
16. The learned Judge erred in failing to hold that the Appellant could not properly be dismissed by reason only of his failure to attend for medical examination."
The task of persuading a court to grant judicial review on these grounds must be a formidable one. The ultimate issue is whether, in all the circumstances, the appellant could be said to have "wilfully" disregarded the direction given to him. This is essentially a question of fact and as Lord Brightman observed in Puhlhofer v. Hillingdon London Borough Council (1986) AC 484 (at p 518):
"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Further, in such cases, even if a ground of review might technically exist, it may be appropriate for the court to decline to grant relief on discretionary grounds (see Lamb v. Moss (1983) 49 ALR 533 at pp 546-551. And, as was pointed out in Lamb v. Moss, in some situations, it is appropriate that the court intervene at an early stage of the proceedings for the purpose of dismissing the application for judicial review on discretionary grounds. In my view, grounds 14, 15 and 16 are no more than an impermissible attempt, by the "back-door", to re-agitate what the appellant perceives to be merits of his general employment situation. As such, it was not an appropriate subject for judicial review and, in my opinion, Everett J. would have been justified in dismissing the application on that discretionary ground. In fact, Everett J. did explore the merits of the appellant's case in considerable detail and found it wanting. There was no reason of any substance advanced to us on the appeal which could justify our interfering with his Honour's assessment, even if it were appropriate that we attempt that exercise for ourselves. These grounds are rejected.
Ground 17 is:
"17. The learned Judge erred in holding that the amendment to the charge could be regarded as 'correcting a formal defect'."
This ground is rejected for the reasons already advanced.
Ground 18 reads:
"18. The learned Judge erred in failing to hold that the provisions of section 62(9) of the Telecommunications Act 1975 apply to the addendum, or majority decision, of a Disciplinary Appeal Board sitting under Section 62 of the said Act, in December 1983."
In my opinion, Everett J. correctly dismissed, as academic, any attempt to review the first Board decision.
Grounds 19, 20, 21, 22, 23, 24, 25 and 26 read:
"19. The learned Judge erred in failing to find that the Commission had ignored the 1983 decision of a Disciplinary Appeal Board (DAB), which required the Commission to discuss, with the Appellant, the contents of a covert letter which the Commission had written to the Commonwealth Medical Officer on 4th July, 1983.
20. The learned Judge erred in failing to hold that until the Commission discussed the said covert letter, with the Appellant, the Appellant could not be required to attend for medical examination.
21. The learned Judge erred in failing to hold that the contents of the said letter were not matters which the Commission could require the Appellant to discuss with a medical officer.
22. The learned Judge erred in failing to hold that the contents of the said letter, if true, are not matters which could justify the formation of an 'opinion', for the purpose of invoking By-law 51(1) against the Appellant.
23. The learned Judge erred in failing to hold that the specific allegations concerning the Appellant's work performance, which motivated the Commission to issue the said letter, were matters of which the Appellant could reasonably expect to have been advised.
24. The learned Judge erred in failing to hold that the said letter did not advert to any matter which could be said to constitute a breach of the terms and conditions of the Appellant's employment contract, by the Appellant.
25. The learned Judge should have held that senior Telecom management did not understand, or chose to ignore, the Commission's written guidelines which were designed to ensure the health and safety of certain officers of the Commission.
26. The learned Judge should have held that the Commission had failed its obligation to employ a competent supervisor."
These are an attempt to restate grounds which have already been rejected for the reasons then given.
By grounds 27 and 28:
"27. The learned Judge should have held that the Appellant was not required to obey the instruction of a supervisor, if compliance would cause the Appellant to be, incontrovertibly, in breach of the statutory terms and conditions of his employment, and liable to be dismissed.
28. The learned Judge erred in failing to hold that the Respondents had failed to take account of the equivocation and prevarication of the witness Mr B.R.T. Townsend."
It appears that these grounds were not raised below.
These assertions, even if justified - a matter I need not consider - could not provide any foundation for judicial review.
Ground 29 reads:
"29. The learned Judge should have held that the Respondents denied the Appellant natural justice."
I agree with his Honour, for the reasons he gave, that, in all the circumstances, the appellant was not denied natural justice.
By ground 30:
"30. The learned Judge erred in failing to hold that 'error of law' as defined in section 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 is not simply a reference to any unlawful procedure by which the D.A.B. reached its own decision, but will include all errors of law and procedure alleged by the Appellant against the Australian Telecommunications Commission.
It appears that this ground was not raised below.
I agree with Everett J. that, for our purposes, the only material decision was that of the Board's confirming the decision to dismiss the appellant.
Ground 31 is:
"31. The learned Judge erred in failing to hold that a ground of review has been made out, under each and every head provided for in section 5(1) of the said AD (JR) Act 1977."
This is merely a restatement of other grounds.
By ground 32:
"32. The learned Judge should have held that the Direction of the Commission, requiring the Appellant to attend for examination was vitiated by fraud.
PARTICULARS OF FRAUD:
(a) The particulars of fraud alleged by the Appellant, against the Australian Telecommunications Commission, or its officers, are contained in an affidavit sworn by the Appellant on 30th August 1985, and filed in Application TG2 of 1985 on 2nd September 1985.
(b) In addition, it is alleged by the Appellant that the abovementioned covert letter, dated 4th July 1983, was written with a reckless disregard for the truth of the matters alleged against the Appellant, and was calculated to persuade a medical officer that the Appellant was unfit for continued employment by the Australian Telecommunications Commission."
This ground was not raised below. It is without substance.
By ground 33:
"33. The learned Judge erred in failing to hold that the said covert letter had so compromised the addresee that the Commission could not require the Appellant to attend for examination, by the said addresee."
It appears that this ground was not raised below. It is without substance.
Ground 34 is:
"34. The learned Judge erred in holding that By-law 51(1) should be qualified by the words 'in a reasonably satisfactory manner.'"
In my opinion, his Honour correctly construed the By-law and correctly applied it to the circumstances of this case.
By ground 35:
"35. The learned Judge erred in failing to hold that the Respondents took account of irrelevant considerations."
This is merely a restatement of other grounds of appeal.
The appeal should be dismissed with costs.
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