O'Connor, C.R. v Burnett, C - [1987] FCA 480

Re: CHERYL ROSE O'CONNOR
And: CLIFFORD BURNETT; IAN LAWRENCE PRICE; AUDREY ANN DUKE; GREGORY ARTHUR
HANCOCK and JOHN ALLAN COPE
No. ACT G48 of 1986
Administrative Law
21 IR 257

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - judicial Review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Decision arrived at by majority - Members of Board, including dissenting member, named individually as separate respondents - Whether proceeding improperly constituted as to parties - Whether Board should have been joined as a respondent by that name - Discussion of appropriate course to be adopted in similar cases.

Administrative Law - Judicial review - Commonwealth Teaching Service - Provisional promotion of applicant - Multiple appeals - Promotions Appeal Board determining three appellants to be preferred to applicant for promotion - Formal documents recording that determination signed - Further deliberations by the Board to determine which of the three appellants should be promoted - Whether Board functus officio.

Administrative Law - Judicial review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Whether there had been a failure by the Board to fulfil its statutory duty to make full inquiry into the claims of the applicant and an appellant - Whether Board failed to take into account relevant considerations - Whether unreasonable exercise of power.

Administrative Law - Judicial review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Bias - Expression of opinion on question of policy by Chairman of Board at private function - Comment by Chairman during Board's deliberations in relation to conduct of the applicant - Allegation that Chairman had prejudged applicant's case - Whether reasonable apprehension that Chairman might not bring an impartial and unprejudiced mind to the decision-making process - Failure of applicant to take objection as soon as reasonably practicable.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Commonwealth Teaching Service Act 1972 (Cth), ss.28, 29, 30

Commonwealth Teaching Service Regulations, regs 9, 10

HEARING

CANBERRA

#DATE 31:8:1987

Counsel for the applicant: Mr R.C. Refshauge

Solicitors for the applicant: Macphillamy Cummins & Gibson

Counsel for the first, second and fourth respondents: Mr L. Katz

Solicitor for the first, second and fourth respondents: Australian Government Solicitor

Counsel for the third respondent: Mr J.B. Stinson

Solicitors for the third respondent: Manfred Stinson & Dougall

Counsel for the fifth respondent: Mr W.B. Loftus

Solicitors for the fifth respondent: Crowley & Chamberlain

ORDER

The application be dismissed.

The applicant pay the costs of the first, second, fourth and fifth respondents.

There be no order as to the costs of the third respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Cheryl Rose O'Connor, seeks orders of review under the Administrative Decisions (Judicial Review) Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1987] FCA 480
Decision Date: 31 AUGUST 1987

CaseChat Overview and Summary

In O'Connor, C.R. v Burnett, C., the applicant sought judicial review of a decision made by the Promotions Appeal Board within the Commonwealth Teaching Service. The dispute centred on the procedural fairness of the decision-making process and the appropriate respondents in a judicial review application. The Federal Court of Australia was tasked with determining whether the proceeding was properly constituted with respect to the parties involved and whether the Board should have been joined as a respondent.

The primary legal issues revolved around the proper constitution of the parties in the judicial review proceedings and the correct entity to be named as a respondent in such cases. Specifically, the court had to decide if it was appropriate for the individual members of the Promotions Appeal Board, including the dissenting member, to be named separately as respondents, or if the Board itself should have been the singular respondent. This raised questions about the proper procedure to follow in future cases involving similar administrative decisions.

The court held that the proceeding was not improperly constituted as to the parties. It found that while the Board as a whole was the decision-maker, it was permissible to name the individual members, including the dissenting member, as separate respondents. The court reasoned that this approach allowed for a comprehensive examination of the decision-making process and the role of each member. Consequently, the application was dismissed, and costs were awarded against the applicant in favour of certain respondents.

In summary, the court dismissed the application for judicial review and ordered the applicant to pay costs to specified respondents, while making no order regarding the costs of the third respondent. This decision provides clarity on the proper constitution of parties in judicial review proceedings concerning administrative decisions.

Orders

Orders of the court

The application be dismissed.

The applicant pay the costs of the first, second, fourth and fifth respondents.

There be no order as to the costs of the third respondent.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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