Parker, M.L. v Australian National Railways Commission

[1990] FCA 586

Mark Leslie Parker v. Australian National Railways Commission, Gordon
Hendry, Robin Hopper and Glen Schirmer
Judicial Review

FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY

GENERAL DIVISION

JUDGE: VON DOUSSA J

Matter No. G27 of 1990

Judgment No. 586/90

Number of pages - 21

Catchwords

Judicial Review - decision by Australian National Railways Commission Promotions Appeal Board - whether Board proceeded outside statutory grounds of appeal -whether Board failed to take into account relevant matters - whether failure to make and maintain detailed records of material gathered by it constitutes procedural unfairness - whether grounds of application raised procedural irregularities or sought to review the merits of the Board's decision.

DATE OF HEARING: 30-31 July and 1 August 1990

DATE OF DECISION: 17 October 1990

PLACE: ADELAIDE

#DATE 17:10:1990

Appearances

Counsel for the applicant:       Mr P.A. Heywood-Smith

Solicitor for the applicant:       Johnston Withers

Counsel for the respondents:       Mr D.W. Smith

Solicitors for the respondents:       Australian Government Solicitor

Order

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents costs to be taxed.

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

VON DOUSSA J

The applicant seeks a review pursuant to s.5 of the Administrative Decisions (Judicial Review)Act 1977 ("the ADJR Act") of the decision of an Australian National Railways Commission's Promotions Appeal Board ("the Board") constituted by the second respondents. The decision of the Board dismissed the applicant's appeal made under s.40 of the Australian National Railways Commission Act 1983 ("the ANRC Act") against the provisional promotion of four other officers of the Railways Service to the positions of Train Controller Class 11, at Mile End, South Australia, in preference to the applicant.

The background to the present application is as follows. in September 1988. by reason of other promotions, four positions of Train Controller Class II at mile End became vacant. By means of a staff notice the four positions were advertised. Twelve people applied. They included the applicant in these proceedings and the four people who were later provisionally promoted namely Messrs G.J. Wilson. T.J. Wilson, K.M. Swansson and M.L. Fischer. At the time each was a Train Controller Class I stationed in South Australia.

Certain selection criteria were set. A selection panel comprising Mr C. Rondello, a Senior Train Controller at Mile End. and Mr R.G. Fishlock, an Assistant Transport Manager, was constituted, By whom the selection criteria were set is not established by the evidence, but I am satisfied that the criteria were set, and made known to those who applied for promotion, before the selection panel embarked on the selection process.

The selection panel chose the four people previously named who were then provisionally promoted to the vacant positions.

The applicant herein, and' two other unsuccessful applicants for promotion appealed against the provisional promotions pursuant to s.40 of the ANRC Act. In order to protect their positions. the provisional promotees also appealed against one another.

Section 40 of the ANRC Act relevantly provides

"40.(1) An employee who considers that

(a)       he should have been promoted to a vacant position in the Railway Service in preference to an employee promoted to that position ...

may appeal against the promotion

(2) ...

(3)       Upon an appeal or appeals being made against a promotion to a vacant position ... a Promotions Appeal Board shall make a full inquiry into the claims of the appellant or appellants and into the claims of the employee promoted to the vacant position ... and determine the appeal or appeals.

(4)       The by-laws may make provision for and in relation to the grounds on which, the manner in which, and the time within which. an appeal may be made under this section and for and in relation to the conduct of inquiries by Promotions Appeal Boards,...

(5)       Where an appeal is allowed. the Commission shall -

(a)       in the case of an appeal against a promotion to a vacant position - cancel the promotion and promote the appellant to the vacant position; ...

(6)       ...

(7)       Where, in respect of a promotion ... an appeal has, or appeals have, been duly made but the appeal or each of the appeals has been disallowed or has become inoperative, the Commission shall confirm the promotion ... appealed against.

Pursuant to sub.s.40(4) and s.79 of the ANRC Act and s.4 of the Acts Interpretation Act 1901 the Commission has made a "Boards of Appeal By-law" which includes clauses providing the grounds on which an appeal may be made under s.40, and for the conduct of inquiries by Promotions Appeal Boards as follows:

"Grounds of Appeal

12. (1) For the purposes of section 40 of the Act the grounds of appeal against a provisional promotion to a position are

(a) superior efficiency; or

(b) equal efficiency and seniority.

(2) For the purposes of sub-clause (1)

(a)       'efficiency' means special qualifications and aptitude for the performance of the duties of the subject position, together with merit, diligence and good conduct; and

(b)       an employee is senior to another employee If the first-mentioned employee occupies a position of higher classification than the other employee, and, where two employees occupy positions of equal classification, the senior employee is the employee first appointed to a position of that classification.

...

Conduct of Inquiries

18.       Except as otherwise provided by this by-law, a Promotions Appeal Board may regulate its own procedure and may by notice in writing require any employee to attend the hearing of an appeal and an employee so notified shall be granted such leave of absence on-full pay as may be necessary to enable him to attend in pursuance of the notice."

In May 1989 a Promotions Appeal Board heard the appeal. The three appellants were unsuccessful. The four people provisionally appointed were confirmed in their positions. The applicant herein then applied to this Court for an order for review in respect of the decision of the Promotions Appeal Board pursuant to the ADJR Act. This application was successful. On 24 November 1989, O'Loughlin J. by consent set aside the decision of the Promotions Appeal Board and remitted the appeals for rehearing to a differently constituted Board. It is common ground that the basis of the decision to remit was that the first Promotions Appeal Board, despite the applicant's expressed wish. did not consult his nominated referees as it should have done: see McNab v. Gildea (1986) 70 AIR 60 and Hamblin v. Duffy (No. 2) (1981) 37 ALR 297 at 308.

In December 1989 another Promotions Appeal Board being the Board constituted by the second respondents embarked on the rehearing of the appeals. Mr Gordon Hendry was the Chairman. The appellants on this occasion were the applicant herein and the four provisional promotees. The other two unsuccessful applicants who originally appealed did not persist with their appeals. On 14 December 1989 the Board dismissed the appeal by the applicant against the four provisional promotees. This decision made it unnecessary for the Board to deal with the appeals by the provisional promotees against one another. The applicant then instituted the application now before the Court. In May 1990 the Board delivered to the applicant a "statement of reasons" for its decision pursuant to s.13 of the ADJR Act.

The application set out many grounds for review which were later expanded in an amended application filed after the statement of reasons was provided. However in opening the case, counsel for the applicant limited the review to six contentions. A seventh ground was argued during counsel's final address without objection from the respondents.

The first contention is that the Board failed to apply The statutory formula in clause 12 of the by-law which prescribes the grounds of appeal. The applicant relies on Bewley v. Cruickshanks (1984) 1 FCR 534 as authority for the proposition that the Board was constrained by clause 12 to determine the appeal solely on the grounds therein set out. That decision concerned the power of a Promotions Appeal Board hearing an appeal under the Australian National Railways Commission Amendment Act 1977, but in material respects the statutory provisions including the relevant clauses of a bylaw were the same. At pp. 539-540 Fisher J. said:

[Clause 12] prescribes the only grounds upon which the appeal is to be decided...

In these statutory provisions the legislature has not left to the Board as decision maker the determination of what matters are or are not appropriate to be considered in the exercise of its discretion. It has laid down clearly and unequivocally the only matters relevant here to be considered, namely efficiency as defined and seniority. General considerations of 'merit, diligence and conduct' were not called in aid by either party. The task of the Board in assessing relative efficiency is to identify. first the subject position, then the duties of the subject position and finally the special qualifications and aptitude of each contender for the performance of these duties. The Board is not justified as a matter of law in proceeding outside of these parameters. Certainly it is not entitled to consider special qualifications or aptitude for the performance of duties other than those of the subject position."

The contention of the applicant is that an improper exercise of power by the Board occurred as the Board failed to pay proper regard to the seniority of the applicant over three of the people provisionally promoted (being those other than Mr G. Wilson). The Board, according to its statement of reasons, came to the conclusion, unanimously, that the applicant's efficiency as defined by clause 12 of the by-law was less than that of the four provisional promotees, and on this ground dismissed the applicant's appeal. It is submitted that the process of reasoning followed by the Board, as revealed by the cross-examination of Mr Hendry rather than by the statement of reasons Itself, does not disclose any materially significant difference in the relative efficiencies of the applicant and the four provisional promotees, or at least between the applicant and one of those who was not senior to him; and a proper application of clause 12(1) therefore required the Board to give effect to the applicant's seniority in accordance with the intent of para.(b) of clause 12(1).

Clause 12(1) requires that where "superior efficiency" of an appellant is established over a person provisionally promoted, the appellant is to be the person promoted, and the Promotions Appeal Board must allow the appeal. I think that the proposition advanced by the applicant that clause 12 (1) requires there to be a materially significant difference in the relative efficiencies of two applicants for the one position before the seniority of one is put aside may be accepted. The real issue raised by the applicant's first contention is whether the process of reasoning of the Board, as disclosed by the material before the Court, justifies the conclusion that there was such a difference so as to empower the Board to dispose of the applicant's appeals on the ground of "superior efficiency".

In the statement of reasons the Board describes the procedures which it followed to gather information and decide the appeals. in para.8.3 of the statement of reasons, the Board says that early in its deliberations

"It identified four broad areas as an amalgamation of the selection criteria in order to enable it to focus its consideration, but it considered and gave weight to all the stated selection criteria. The four broad areas were:

(a)       Proven knowledge of and ability to perform all facets of the duties of a Train Controller, including a sound knowledge of locomotive and wagon fleets, train services and their priorities.

(b)       Broad knowledge and understanding of Australian National's corporate philosophy, business goals and Operations Branch plan.

(c)       Proven high level of communicative skills, particularly In situations requiring tact and attention to detail.

(d)       Good understanding of the TIMS (Train Information Management System) computer system and its uses relevant to the position."

When the Board came to consider the claims by each of the appellants in light of the material gathered by it, one of the procedures adopted was to assess the appellants and rank them in order of efficiency in relation to each of these four broad areas. The statement of reasons discloses that the Board, by unanimous decision, in relation to the first area found that the applicant had less efficiency than the four provisional promotees; in relation to the second area that the applicant had demonstrated equal efficiency with Mr T. Wilson but less efficiency than the other three; in relation to the third area that the applicant had demonstrated equal efficiency with Mr Fischer and Mr G. Wilson but had demonstrated less efficiency than Messrs Swansson and T. Wilson; and in relation to the fourth area found that the applicant was less efficient than the four provisional promotees. The Board then expressed its final conclusion that on all the material before it the Board was of the opinion that the applicant's efficiency was less than that of the other appellants.

The cross-examination of Mr Hendry disclosed that in their deliberations the members of the Board adopted a scoring system by which each member individually allocated a score between 1 and 10 for each appellant for each broad area and that these scores were used by the members of the Board in their ranking of each of the appellants in respect of each of the areas identified, and also when reaching its final opinion. insofar as each member of the Board may have kept a score sheet at the time, such documents were apparently destroyed at the conclusion of the hearing. The only record discovered by the Board was a summary sheet which records the overall assessment of the appellants in the following way

Swansson        106 points

Fischer       97 "

G. Wilson        91 "

T. Wilson        87 "

Parker       81 "

These points are the aggregation of the scores and reflect a total out of a possible 120 points.

Mr Hendry could not recollect the individual scoring of each appellant in each area. and so long after the event this is hardly surprising in the absence of records. It is therefore not possible to demonstrate in respect of which area or areas of consideration the differential of 6 points between the applicant and Mr T. Wilson, the provisional promotee next ranked above him, arose. It is submitted that a difference of only 6 points in a possible score of 120 is a small margin, and one that might be explained by reference to a poor score on some point of peripheral importance to the special qualifications and aptitude for the performance of the duties of a Train Controller Class II. It is not a margin which is materially significant.

In my opinion the first contention of the applicant is not made out. The starting point for the contention is that the only method of assessment adopted by the Board which led to its final conclusion that the applicant was less efficient than the other appellants was the scoring system which produced the aggregate scores set out above. Even if this were so, the disclosed scares are not so close that the Board could not reasonably have concluded that there was a materially significant difference between the efficiency of the applicant and the other appellants. It was for the members of the Board to make this assessment on the material before it. The scores show a difference which could be treated as materially significant. Whether the difference was so significant involves matters of fact and degree going to the merits of the case which this Court cannot investigate.

However the premise that the scoring system described by Mr Hendry was the only method of assessment adopted by the Board cannot be accepted. The statement of reasons, affirmed subject to qualifications not material to this point by Mr Hendry in his affidavit, show that the deliberation of the members of the Board went beyond merely producing a numerical score which was then applied in a mechanical way. The Board considered in detail the material obtained by it which related to each of the four broad areas identified as an amalgamation of the selection criteria and ranked the appellants in order of efficiency separately In relation to each area. Then, importantly, as paras. 13 and 16 of the statement of reasons disclose, the Board additionally considered the final ranking of the five appellants in order of efficiency between them on all material before it. Paragraph 16, which expresses the final conclusion of the Board, reads:

"Even though Mr Parker had performed more higher duties than any of the other appellants and it accepted his statement that he had worked boards at a higher level, the Board's opinion was that on all the material before it his efficiency - as defined in the By-law - was less than that of the other four appellants. As a consequence it dismissed his appeals against them...

It is implicit from this paragraph that after considering the four broad areas identified by them, the Board considered directly the weighting which should be given to an important aspect of the applicant's case, where the Board accepted that the level of his experience exceeded that of the other appellants, and nevertheless concluded that there was a level of difference between the efficiencies of the appellants which justified deciding his appeal on the footing of "superior efficiency" rather than "equal efficiency and seniority". In my opinion the process of reasoning of the Board demonstrates no error of the kind alleged.

It is necessary to stress that the role of this Court on an application for judicial review is not to review the merits of the original decision. The Court is empowered to do no more than require that the decision is made by the decision maker according to law. The Court has no power to substitute its view of what would be right or preferable on the facts, and it is not the Court's function to consider the facts for Itself in order to form and declare its own view about them: Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 390 and Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 AIR 186 at 188. The arguments of the applicant on this aspect of the case, as on several others, in reality invited the Court to reassess the merits and express its view that the facts established that the applicant had at least equal efficiency to one or more of the other appellants. The Court cannot do this: Bound v. Fletcher (1984) 1 FRC 239 at 242.

As a subsidiary submission to the first contention, it was argued that in directing its consideration primarily to the four broad areas identified in the statement of reasons, the Board failed to address the issues of merit, diligence and good conduct, being matters which form part of the notion of efficiency as defined by clause 12. The material before the Court does not suggest that issues of merit, diligence and good conduct were raised specifically by any party before the Board although in this Court it was suggested that the Board may have overlooked the comparatively high levels of formal education received by the applicant, a matter which would come within these issues. However the statement of reasons, in para.6, expressly asserts that the Board did not overlook that merit. diligence and good conduct are components of the notion of efficiency as defined. The evidence of Mr Hendry is that merit, diligence and good conduct were matters to which the Board in a general way would have given consideration, although he could not remember specifically what questions were asked of each appellant on these topics. I see no reason to doubt Mr Hendry's belief that merit, diligence and good conduct were not overlooked. There is no positive material before this Court to suggest that they were.

I also add that in the course of arguing the first contention, counsel for the applicant made repeated reference to an opinion of the Board, said to be expressed by the statement of reasons, that the applicant had a poor understanding of the corporate philosophy of ANRC. It was said that this could provide the explanation for the difference of 6 points in the aggregate scores recorded for the applicant and Mr T. Wilson. This submission puts an unwarranted gloss on the statement of reasons. In para. 15.2 the Board expressed its opinion that the applicant's efficiency was equal with that of Mr T. Wilson in the broad area which encompassed corporate philosophies, and that the applicant's understanding "displayed a lack of appreciation of Australian National's business function as related to the train control function." It is difficult to accept that the difference in scoring can be attributed to this topic, or, even if it can be, that the lower marking is not directly relevant to the special qualifications and aptitude for the performance of the subject position.

The second contention of the applicant raises directly as a ground for review the Boards inclusion of a "broad knowledge and understanding of Australian National's corporate philosophy, business goals, and operations Branch plan" as a criterion in formulating the tests by which "efficiency" was to be evaluated. it is submitted that whilst a knowledge of these matters is no doubt useful for every employee in the Railways Service, the matters have absolutely nothing to do with the job of a Train Controller Class 11; therefore the criterion falls outside the notion of efficiency as defined in clause 12 of the by-law. Again Bewley v. Cruickshanks is relied upon.

In my opinion Bewley v. Cruickshanks lends no weight to this submission. The case is clearly distinguishable on the facts. In Bewley v. Cruickshanks the relevant duties of the subject position were ascertained by the Court by reference to a statement of duties shown to the applicant at the time when he was interviewed for promotion by senior officers of the Railways Service. The Promotions Appeal Board later fell into error by taking into account qualifications or aptitude for the performance of duties not specified in the statement of duties which was shown to the applicant. In the instant case there is no suggestion that the Board made such an error. The initial selection criteria for the vacant positions of Train Controller Class II were in three parts: "essential", "highly desirable" and "desirable". The essential criteria were in the nature of prerequisites for appointment, which prerequisites all twelve applicants for the positions met. They were

"ESSENTIAL

1.1 Be clerically qualified (unless a former Commonwealth Railways Train Controller or Station Master).

1.2 Qualified in Core Safeworking subjects, required Area Subjects, Train Operating and Transportation Air Break.

1.3 Able to meet prescribed medical standards for safe working employees (class B-maximum risk).

1.4 Acceptance of shift work.

1.5 Be classified as a Train Controller."

The highly desirable criteria were:

"HIGHLY DESIRABLE

2.1 Proven ability and satisfactory performance in performing the duties of a Train Controller.

2.2 Broad knowledge and understanding of AN's corporate philosophies, business goals and Operations Branch plan.

2.3 Satisfactory level of written and oral communication skills.

2.4 Ability to maintain a calm disposition and temperament when in charge of the Board.

2.5 A sound knowledge of the locomotive and wagon fleets."

Criterion 2.2 made relevant to the duties of the vacant positions the matters which it is submitted the Board should not have taken into account. I have already quoted the passage in the statement of reasons where the Board said it considered, the applicant's understanding of these matters displayed a lack of appreciation of ANRC's business function as related to the train control function. The position of Train Controller is described in the papers as a classification in the commercial division, operations and marketing branch. Beyond this the material before the Court does not enlarge upon why the corporate philosophies, business goals and the operations Branch plan are important to the performance of the duties of a Train Controller Class II. The Operations Branch plan is not before the Court. Without knowing the subject matter of the philosophies, goals and plan it Is not possible to further explore the ways in which a knowledge of these matters would be relevant to the notion of efficiency. Nor is it necessary to undertake such an investigation. It is sufficient to dispose of the contention to note that the selection criteria made a broad knowledge and understanding of the philosophies, goals and plan part of the special qualifications and aptitude required for the performance of the duties of the vacant positions. The assessment of the knowledge and understanding possessed by each appellant, and the weight given to that assessment In the evaluation of efficiency. were matters for the Board, and ones which go to the merits of the decision. The material before the Court does not indicate any error of law or improper exercise of power by the Board in taking into account the second broad area identified by it from the selection criteria. The second contention of the applicant must also fail.

The third contention of the applicant is that the Board failed to take into account when determining the relative efficiencies of the appellants the greater experience of the applicant in working in the position of a Train Controller Class 11" and the applicant's experience in handling emergency situations. The experience of the applicant in working in "higher duties" as a Class II and Class III Train Controller were matters stressed by him in his interview with the Board. The statement of reasons is against this contention. The Board in relation to each appellant carefully recorded higher duty experience, and in para.16 (set out earlier in this judgment) dealt specifically with the higher duty experience

of the applicant. However the thrust of this submission is that the statement of reasons should not be taken at face value It is said that having regard to the higher duties experience of the applicant, he should have been assessed as being of at least equal efficiency with one or more of the other appellants. As he was not so assessed, it is said that the Board must have failed to take that experience into account. This submission amounts to a challenge to the merits of the Board's decision. It was for the Board to consider the significance of that experience. The Board says it has done so, and there is no reason to doubt that this occurred. The        applicant's higher duty experience was but one of many facts to be considered, and it does not follow from the final conclusion of the Board that the Board must have overlooked it. This contention must also fail.

The fourth contention is that the Board failed to give proper weight to the evidence of the immediate superiors of the appellants who were nominated by the applicant as his referees. There were four superiors nominated by him, each holding the classification of Movement Manager. The statement of reasons records the following about the referees:

"8.5 ... Each person, [i.e. each appellant] was asked to nominate any referee or referees he wanted the Board to consult. Only Mr Parker nominated referees - namely, Mr G. Koop (Acting Movement Manager), Mr N. Graham, Mr R. Mitchell and Mr D. Hennig, all Movement Managers. The Board told the other appellants that it intended to ask these four persons for comments about them. They all agreed to its doing this...

8.6 The Board then interviewed each referee in turn. The referees were all Movement Managers who worked in the same area as the appellants and were their immediate supervisors out of office hours. In order to encourage frankness the Board assured the referees that their comments would be confidential. They were all intimately familiar with the duties of a Train Controller Class II. The Board sought comments from the referees on all the appellants and asked them to rank the appellants In order of efficiency.

10. The rankings of the appellants by the movement Managers varied substantially. No referee, however, ranked Mr Parker first or second, and two of the referees said that he lacked initiative and motivation, in that he did not look for work and needed more pushing than the others."

Counsel for the applicant concedes that para.10 of the statement of reasons is not under challenge as to its accuracy so far as it goes, but submits that what it does not record is significant. It does not record what the ranking made by each Movement Manager was, and inferentially the applicant was not ranked last by the Movement Managers; and it does not record what comments were made by the Movement Managers about the other appellants.

In my opinion this contention also seeks to agitate the merits of the Board's decision, and to question the weight which was or should have been given to information obtained from each of the Movement Managers. Once It is acknowledged that the information in para.10 contains a correct statement about Information obtained from the Movement Managers the submission raises no allegation of procedural Irregularity or error of law. Even if the Court had the power to look into the merits, it is doubtful that the actual rankings by each of the Movement Managers of the five appellants for "efficiency" could assume much importance, particularly as the rankings varied substantially. It was the Board's ultimate function to rank the appellants in order of efficiency as defined according to the selection criteria. It was not for the Board to abdicate that function to the Movement Managers. In performing its function the Board was entitled to give such weight as it thought f it to the information obtained from the Movement Managers and to evaluate that information along with all the other material before it. other relevant considerations, such as the communication skills of the applicants, were matters for the Board to evaluate for itself. More important than the efficiency rankings given by the Movement Managers would be comments made by them about particular relevant skills or attributes possessed by the appellants. The statement by two of the Movement Managers that the applicant lacked initiative and motivation was material upon which considerable weight could reasonably have been placed. It was open to the Board to rely on that statement, and if it did so, to reach a conclusion adverse to the applicant. The Board was not obliged to go back to the applicant and seek further comment from him on information adverse to his case received from his referees: Reid v. Australian Telecommunications Commission (1988) 23 IR 96 at 105. It is not open to the Court to review the weight given to different aspects of the information before the Board. Again, this contention does not demonstrate a failure by the Board to proceed according to law.

The fifth contention is that the Board failed to fully Inquire into breaches of safe working rules which had been committed by the appellants other than the applicant. As formulated in the opening of the applicant's case this complaint was that the Board appeared to have reached a conclusion about the breaches of safe working rules committed by each of the appellants without reading materials relating to breaches by the appellants other than the applicant. The relevant conclusion appearing in para. 11 of the statement of reasons reads:

"There was nothing in any of the recorded breaches which of itself led the Board to distinguish between the appellants by reason of their failure to comply with safe working rules and safe operating procedures."

However it is to be noted that para. 11 commences with the observation that "The Board considered the recorded breaches of safeworking rules by all the appellants". Further, in para. 8.7 of the reasons it is recorded that "The Board then considered the recorded breaches of the safeworking rules for each of the appellants". These records had been obtained by the Board from Mr Rondello. Mr Hendry was emphatic in his evidence that the Board members read these records, and I accept his evidence that they did so. The suggestion that the Board failed to consider these records cannot be sustained. Hence the reformulation of the contention to allege that the Board failed to fully inquire into the breaches. Again this submission is one which seeks to agitate the merits of the Board's decision. It is the applicant's case that the Board should have held that the breaches of safe working rules by at least one of the other appellants were more serious than those of the applicant; it was In error in not doing so. If there were such an error it would be one of fact, not law.

In support of the contention it was submitted that the Board fell into error of law In not discussing each recorded breach with the relevant appellant. The recorded breaches of safe working rules had assumed some importance in the decision of the original selection panel. it was for this reason that the records were obtained by the Board. In para. 8.5 of the statement of reasons It is recorded (1 am satisfied correctly) that "The Board then asked each appellant whether he wished to make comment on the selection panel's report. All except Mr Parker, who was the first of the appellants to be interviewed, accepted the adverse comments which had been made about them. As Mr Parker denied the factual basis for the adverse comments,, the Board examined his personnel file and referred him to documents, including recorded breaches of the safeworking rules, which recorded the incidents which gave rise to the adverse comments. These documents included his written responses to the allegations. He accepted that he had been counselled about each of the alleged incidents and acknowledged his written explanations of them. He said the report of one incident was an over-reaction by the supervisor. He said that the other reported incidents were the product of personal animosity by another supervisor, Mr Rondello. He elaborated on his allegation of personal animosity by Mr Rondello at some length ... Each appellant agreed to the Board's referring to recorded breaches by him of the safeworking rules...

The personnel files referred to were in fact the records of breaches obtained from Mr Rondello. The Board also reported in para.8.5 that at the conclusion of his interview the applicant asked the Board to question the other appellants about their breaches of safe working rules. Mr Hendry's crossexamination revealed that the records of breaches by other appellants were not discussed with them. This was not done as each of the appellants admitted the breaches. The details of the breaches were there to be read. The Board told the appellants that they would read them, and did so. it would have been a pointless exercise going through the relevant records in the presence of each of the other appellants when they admitted the substance of the records. It was only necessary to do so with the applicant as he disputed the accuracy of the adverse comments based on the records which had been made by the selection panel.

The records of breaches committed by each of the appellants were tendered in evidence. 1 have read them. The conclusion reached by the Board about the breaches of safe working rules was clearly open to it. Whether the conclusion is right or wrong is a matter going only to the merits of the decision. This contention fails.

The sixth contention is that the Board failed to make and retain sufficient documentary material to enable the Court on an application for judicial review to properly exercise its jurisdiction, in particular the Board failed to maintain a sufficient record of the information gathered from each of the appellants and the Movement Managers, and failed to retain the score sheets made by each member of the Board. It is submitted that as Mr Hendry, the only member of the Board who was called by the respondent to give evidence. had little or no recollection of the detail of these matters, apart from that recorded in the statement of reasons, the absence of written records touching these matters makes it impossible for the Court to conduct a judicial review; there has been a denial of procedural fairness amounting to a denial of natural justice. As the argument developed it became clear. that the criticism was that without a transcript of the questions asked and the answers given by each of the appellants and the Movement Managers the Court could not form an opinion whether, for example, each appellant was asked the same or substantially similar questions going to matters relevant to efficiency; and the Court was deprived of the opportunity of determining whether the information obtained from the Movement Managers had been given proper weight. Short of the Board creating and maintaining a full transcript of the interviews with the appellants and the Movement Managers, it is difficult to envisage how the applicant's criticism, if it is one of substance. could have been overcome.

There is a threshold difficulty with this submission. It is not suggested that the lack of records had any bearing on the decision made by the Board. It is not suggested, for example. that the lack of records impeded the Board in its decision making progress. The complaint is that this Court is impeded in conducting a judicial review. It seems doubtful whether para.5(1)(a) of the ADJR Act extends to cover an irregularity which affects not the making of the decision sought to be reviewed, but the review process itself. But putting that difficulty aside, in my view this contention of the applicant is misconceived in the circumstances of the present case. Again it is necessary to distinguish the role of judicial review from the function of an appellate court charged with jurisdiction to determine an appeal by way of rehearing on the material before the lower court. An appeal court has jurisdiction to consider the merits of the decision and the need for notes of the evidence Is readily apparent. Here the arguments in respect of which the absence of a transcript or notes of information gathered by the Board have

presented a difficulty for counsel to the applicant are arguments which seek to attack the merits of the decision as if the review were an appeal in the strict sense. The function of this Court, as 1 have already pointed out Is confined to ensuring that the decision was made according to law.. The ability of the Court to perform that function has not been defeated. The parties have been at liberty to establish what occurred before the decision maker by affidavit and by oral evidence insofar as it is necessary to establish facts relevant to the grounds of review created by s.5 of the ADJR Act. The information gathered at interviews which the applicant submits should have been recorded relates to the merits of the Board's decision.

Insofar as the individual score sheets of the members of the Board are concerned, those were merely private working notes of the members prepared in the course of the deliberation process which led ultimately to the conclusions of the Board. Those conclusions are recorded both in brief notes which have been maintained, and in the statement of reasons. 1 do not think any procedural unfairness has occurred to the applicant through the destruction of the score sheets. In my opinion the sixth contention also fails.

The last contention, advanced for the first time during the applicant's final address, is that there was no evidence or other material before the Board to justify the making of Its decision. It is contended that the decision could only be justified if there was material before the Board which could support the finding that the applicant was less efficient than the other four appellants, and there was not. In substance this submission restates in a general way the contentions already put separately and in greater detail, in particular in the third, fourth and fifth contentions. In my view the rejection of the earlier contentions disposes also of the general submission. I consider there was ample material before the Board to support the decision which it reached.

In my opinion the application for a review should be dismissed.

I certify that this and the 26 preceding pages are a true copy of the Reasons for Judgment of Mr Justice von Doussa

Associate:

Dated: 17 Oct. 1990