Perkins v Cuthill

[1981] FCA 92

Re: LYLE JOHN PERKINS
And: WILLIAM JOHN CUTHILL, KENNETH VINCENT LOUGHNAN, DESMOND JOHN LOVELOCK and
AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. VG 67 of 1981
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative law - appeal against dismissal by Disciplinary Appeal Board of appeal against demotion under Telecommunications Act - nature of statutory power conferred by s.61(1) of Act - application for judicial review - effect of Queensland Act that "conviction . . . deemed not to be a conviction" - board mistaken as to offences of which convicted - having regard to "nature" of offences - meaning of "nature"

Rules of natural justice - board "asking itself the wrong question" - board deciding on a basis never put to it and failing to give applicant opportunity to disabuse them - board failing to take into account relevant considerations - board acting on irrelevant considerations - Administrative Decisions (Judicial Review) Act 1977 s.5, s.15(1) - Telecommunications Act 1975 s.61(1), s.61(2)(a), s.62(8) - Offenders Probation and Parole Act 1959 (Queensland) s.8, s.19

HEARING

MELBOURNE

#DATE 2:7:1981

ORDER

1. The decision of the Disciplinary Appeal Board, given on 12 March 1981, is quashed with effect from and including the date on which it was made.

2. The fourth respondent, the Australian Telecommunications Commission, is directed to arrange for a disciplinary appeal board under s.63 of the Telecommunications Act 1975, constituted by a different chairman and different members from the first, second and third respondents, to hear and determine the applicant's appeal from the decision by the delegate of the Australian Telecommunications Commission, dated 9 December 1980.

3. It is declared that the decision of the said delegate has not taken effect and does not take effect unless the applicant's appeal therefrom lapses or is withdrawn or a differently constituted disciplinary appeal board confirms, either with or without a variation, that decision.

4. The fourth respondent is directed to pay to the applicant an amount, after proper allowance for income tax, equal to the difference between -

(a) the salary he would have received as a Senior Technical Officer Grade 3; and

(b) the salary he has in fact received as a Senior Technical Officer Grade 1,

in respect of each pay day from 12 March 1981 to the first pay day when his salary as a Senior Technical Officer Grade 3 is restored.

5. Liberty to apply is reserved to each party.

6. The fourth respondent is directed to pay the costs of the applicant which, in default of agreement, shall be taxed.

JUDGE1

This is an application to the court under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) by Lyle John Perkins (the applicant) for an order of review in respect of a decision of a Disciplinary Appeal Board (the board) constituted under s.63 of the Telecommunications Act 1975 (the Telecommunications Act). The first, second and third respondents are the chairman and members of the board. The applicant is an officer of the fourth respondent, the Australian Telecommunications Commission (the commission).

Mr F. Callaway of counsel appeared on behalf of the applicant and Mr M. Black Q.C. appeared with Dr P. Buchanan of counsel for all the respondents but did not present any argument to the court on behalf of the first, second and third respondents.

The board's decision on 12 March 1981 dismissed an appeal by the applicant against a decision made on 9 December 1980 by a delegate of the commission who had been appointed under s.33 of the Telecommunications Act. The delegate decided under s.61(1) of that Act that the applicant should "be transferred to a position of a lower classification, namely Senior Technical Officer Grade 1 $17,003 - $17,852, Design Standards Branch, Buildings Sub-Division, Services Division, Engineering Department, with effect from 15th December, 1980". He also determined that the applicant should "be paid at the maximum salary of $17,852". The applicant's salary as a Senior Technical Officer Grade 3 immediately before the delegate's decision was $20,994 per annum.

Section 62 of the Telecommunications Act included the following provisions:

"62. (1) An officer may appeal to a Disciplinary Appeal Board-

. . .

(b) against a decision made with respect to him by the Commission under sub-section 61 (1).

. . .

(3) In the hearing of an appeal under this section, the Disciplinary Appeal Board may take evidence on oath or affirmation.

(4) The regulations may prescribe the manner in which, and the time within which, appeals may be made under this section and the manner in which the hearing of appeals so made shall be conducted and may include provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation and the administering of oaths and affirmations.

(5) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the direction or decision against which the appeal is made.

(6) Where an officer appeals under sub-section (1) against a direction or decision on the ground that the action to be taken in accordance with that direction or decision is excessively severe, evidence may be given on the hearing of the appeal-

. . .

(c) of matters relating to the previous employment history and general character of the appellant.

. . .

(8) A Disciplinary Appeal Board shall give reasons, in writing, for its decision on an appeal.

(9) The Commission shall take such action as is necessary to give effect to the decision of a Disciplinary Appeal Board."

The board's decision under s.62(5) was in the terms set out below, save that the words "punishment" (appearing three times) and "penalty" (appearing twice), which were not underlined in the board's decision, have been underlined here for ease of reference in considering the grounds advanced by the applicant.

"TELECOMMUNICATIONS ACT 1975

Proceedings of Appeal Board constituted under Section 63 sitting at Melbourne on the twelfth day of March 1981 to consider an appeal by Lyle John Perkins, a Senior Technical Officer Grade 3, employed in The Commission stationed at Clayton, against a punishment inflicted upon him by John Patrick Ahern, Delegate of the Australian Telecommunications Commission at Melbourne.

The charge was as follows:

That on 6 August, 1980 at Southport in the State of Queensland, he was convicted on charges of

(a) Unlawful detention of a female Megan Elizabeth Marwede against her will;

(b) Unlawful detention of a female Rosalie Ann Ashley against her will;

(c) Aggravated assault on a female;

and was released on probation for a period of three years.

The punishment inflicted was reduction to the office of Senior Technical Officer Grade 1.

The ground of this appeal is:

Excessive severity of the punishment.

Mr J. Fuller of the Commonwealth Crown Solicitor's Office conducted the case on behalf of the Australian Telecommunications Commission.

Mr K. Fothergill of ATEA (Australian Telecommunications Employees' Association) conducted the case for the appellant.

The Appeal Board dismissed the appeal and confirmed the penalty imposed by the Delegate.

In accordance with the requirements of sub-section (8) of Section 62, reasons for the decision were:

The Board considered that the offences perpetrated by the appellant in Queensland of abducting two young women were so serious that he was very fortunate in not being sentenced to a term of imprisonment. The very nature of the offences would cause him to be held in contempt by his fellow officers in the Commission.

The Board gave serious thought to the penalty of dismissal having been available to the Delegate who, in his wisdom, decided that the Commission should retain the services of the appellant but to reduce him from the position of Senior Technical Officer Grade 3 to Senior Technical Officer Grade 1. In this regard, we felt that the Delegate had extended to him the utmost leniency and we fully supported his decision. It would not be appropriate for him to have under his direction staff who might hold him in contempt when they became informed of the occurrence in Queensland.

Dated this twelfth day of March 1981.

(signed) Chairman
(signed) Member
(signed) Member"

The application to the court was brought under s.5 of the Judicial Review Act and it is common ground that the board's decision is a decision to which that Act applies. In Hamblin v. Peter Duffy and others (judgment delivered 15/4/1981 - not yet reported) the role of this court under that Act was described by Lockhart J. as follows:

"Judicial review by this Court under the Judicial Review Act does not enable the Court to substitute its own decision for that of the person or body whose action is challenged. The question for the Court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed. The Court is empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with law."

The applicant relied upon the grounds referred to in each of the following provisions in s.5 of the Judicial Review Act:

"5. (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

. . .

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

. . .

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to-

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

. . .

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

. . .

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless-

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The applicant on 25 August 1980 in the Magistrates Court at Southport, Queensland, pleaded guilty to three charges (referred to more fully later) and was convicted of each offence. With his consent the applicant was admitted to probation requiring him to be under the supervision of a probation officer for a period of three years on certain conditions, including conditions that he abstain from violation of the law, that he carry out the lawful instructions of the probation officer and that he "undergo such medical examination or examinations as required by (your) probation officer and submit to such treatment considered necessary as a result thereof". The probation order was made under s.8(1) of the Queensland Offenders Probation and Parole Act of 1959, as amended by Act No. 7 of 1968 and Act No. 28 of 1974, (the Queensland Act) which provided that:

"Where any person is convicted by . . . any Magistrates Court of any offence punishable by a term of imprisonment . . . and the Court is of opinion that having regard to the circumstances including the nature of the offence and the character and personal history (inclusive of home surroundings and other environment) of the offender it is expedient to do so, the Court may instead of sentencing him make an order requiring him to be under the supervision of a probation officer for such period, being not less than six months and not more than three years, as is specified in the order."

Grounds 1 and 2 of the application may be conveniently taken together. They are as follows:

"1. The decision was based on the Applicant's having been convicted on certain charges in August, 1980 at Southport in the State of Queensland and having been released on probation for a period of three years, whereas the Applicant had not been convicted at all within the meaning of sub-section 61(1) of the Telecommunications Act 1975.

2. The decision was based on the Applicant's having been convicted and released as aforesaid, whereas section 19 of 'The Offenders Probation and Parole Act of 1959' of the State of Queensland as amended provides that, subject to immaterial exceptions, a conviction for an offence in respect of which a probation order is made shall be deemed not to be a conviction for any purpose."

Section 19 of the Queensland Act provided as follows:

". . . Except as hereinafter provided a conviction for an offence in respect of which a probation order is made under this Act or under a law of another State or a Territory corresponding to Division 1 of Part IV shall be deemed not to be a conviction for any purpose (including, without limiting the generality of the foregoing, the purposes of any enactment imposing or authorising or requiring the imposition of any disqualification or disability on convicted persons) except in relation to - . . ." (certain matters not presently material)

Section 61(1) of the Telecommunications Act provided as follows:

"61. (1) Where a court convicts an officer on a charge for an offence referred to in paragraph 59 (1)(a) or a court, without recording a conviction, finds that an officer has committed such an offence and the Commission, after giving the officer an opportunity to furnish to it, in writing, any explanation that he desires to make in relation to the offence, is of the opinion that, having regard to the nature and circumstances of the offence and the nature of the duties of the officer, the interests of the Commission justify it in so doing, the Commission may counsel the officer or may decide to-

(a) transfer the officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has the same classification as, or a lower classification than, the position held by the officer, and determine the salary, within the salary range of the position, that is to be paid to the officer; or

(b) dismiss the officer from the Service."

As Mr Black pointed out, before the court may make a probation order under s.8(1) of the Queensland Act, it is necessary for the person to have been convicted. I accept his submission that in s.61(1) of the Telecommunications Act the words "where a court convicts an officer on a charge for an offence . . ." are referring simply to an event that has occurred as a matter of historical fact. The commission (and on appeal the board) has power to act under s.61(1) when, after examining what has happened in fact, it can be fairly said to fall within the category of case where either "a court convicts an officer . . ." or "a court, without recording a conviction, finds that an officer has committed such an offence".

The power is not conferred, of course, in respect of an officer who has been found not guilty by a court but, equally plainly, the legislative intention was that the powers were to be exercisable in respect of a wider class of officers than those who had been convicted. The class was to include an officer in respect of whom the court had made a finding that he had committed such an offence, notwithstanding that the court had decided not to record a conviction. In my opinion, the legislative intention was that the powers be conferred on the commission in respect of an officer who had been convicted of such an offence and who had then been made the subject of a probation order - notwithstanding the existence of State legislation, such as s.19 of the Queensland Act, that in such a case "a conviction . . . shall be deemed not to be a conviction for any purpose". Having regard to the conclusion which I have expressed, it is not necessary for me to deal with the alternative contention advanced by the commission that "in the proceedings before the Board the Applicant accepted that he had been convicted of the charges heard by the Magistrates' Court at Southport and is now precluded from raising grounds 1 and 2 of the Application herein".

Grounds 3 and 4 of the application may also be conveniently taken together. They read as follows:

"3. The decision was based on the Applicant's having been convicted as aforesaid on two charges of unlawful detention of a female against her will and one charge of aggravated assault on a female, whereas the charges were in fact two charges of being a vagrant for that the Applicant, with intent unlawfully to detain a female against her will, had a firearm in his possession and one charge of unlawful assault, being an assault of an aggravated nature in that the victim was a female.

4. The decision was based on the Board's consideration that two of the offences perpetrated by the Applicant in Queensland were offences of abducting two young women, whereas those offences were as set out in paragraph 3."

The facts set out in these two grounds were not disputed. As set out in ground 3, the board in its decision was wrong in its description of each of the three charges. The chairman of the board told the parties at the outset that "we already have a full copy of the brief and we have read the whole lot through" and later said "my colleagues and I have read the file through from beginning to end and we are quite familiar with what is in it". Unfortunately for the applicant, the board, instead of being "quite familiar with what is in it", was mistaken as to each of the three charges. Further, it was wrong not only in setting out, in the early part of the decision, what the charges were but also when, in giving written reasons for its decision on the appeal, it wrongly referred to "the offences perpetrated by the appellant in Queensland of abducting two young women". No such charges had been laid against the applicant.

Mr Black and Dr Buchanan put everything that could be put in defence of the board's decision. They submitted that:

"The words . . . were not used in the decision as legal terms of art but generally and we say aptly descriptive of what had been done. The nature and circumstances of the offences . . . do not alter according to what they might be called."

I am not prepared to uphold that submission. The statute provides that a person shall not be appointed to be the Chairman of a disciplinary appeal board unless he is or has been a magistrate or is a barrister or solicitor of not less than 5 years standing. Further, s.62(8) requires that such a board "shall give reasons, in writing, for its decision on an appeal". It is important that the reasons be carefully prepared and that they fully explain the board's reasoning process. In my opinion the reasons given by the board fell far short of fulfilling that statutory requirement.

That section appeared in the Telecommunications Act when it was enacted in 1975. Decisions by a board are decisions to which the Judicial Review Act, which came into operation on 1 October 1980, applies and it is now even more important that a disciplinary appeal board fully comply with the duty to give reasons. In Donovan v. Edwards (1922) V.L.R. 87 at p.88 Irvine C.J. said:

"In the exercise of their judicial functions justices are not exempt from the duty which attaches to every judicial officer to state to the best of his ability the facts he finds and the reasons for his decision."

That principle was applied in Brittingham v. Williams (1932) V.L.R. 237 at p.239 where the Full Court (Cussen A.C.J., Mann and Lowe JJ.) said:

" . . . we agree with Irvine C.J. in Donovan v. Edwards (1922) V.L.R. 87 that a judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to offer assistance to the court of appeal in the event of their being an appeal."

Although those decisions were given in respect of appeals from courts, I adopt the principle as to the purpose of furnishing reasons as being equally applicable to a disciplinary appeals board appointed under the Telecommunications Act.

Mr Black also submitted, in relation to the offences committed by the applicant, that:

" . . . what he has done is a criminal offence . . . those acts, whatever they are, can have different labels put on them in different States in the Commonwealth. The acts remain the same. That is the true nature of the offence . . . there is no fundamental distinction between, in this case, . . . having a firearm with intent unlawfully to detain a female against her will, which he undoubtedly did, and abducting them. They are legally different, but factually they are virtually the same in this case."

I am quite unable to accept that submission because s.61(1) required the board, in considering whether the interests of the commission justified the transfer of the applicant, to have regard to the nature of the "offence". That "offence" must, as a matter of construction of s.61(1), refer to the offence of which an officer has been convicted or in respect of which "a court, without recording a conviction, finds that an officer has committed such an offence" - the latter not being presently material as this is not a case where the court made such a finding "without recording a conviction". The section also requires that the officer be given "an opportunity to furnish to (the commission), in writing, any explanation that he desires to make in relation to the offence". Again, the word "offence" must refer to the offence of which the officer has been convicted and not to some other, albeit allied, offence of which the officer might have been convicted if he had been charged with it.

Having taken the opportunity to reflect on the matter overnight, the commission advanced an argument as to the meaning of the word "nature" in the words "the nature . . . of the offence" appearing in s.61(1). It was as follows:

"The scheme of the act, in our submission, is plain. It is concerned with the way in which offences will be treated in relation to the man's position in the service and in those circumstances one would not expect to find anything turning on the precise statutory definition of the offence, but rather on its nature, meaning the sort, or kind or class of the offence that is involved, because that is the matter of substance. If it is thought that a man is at risk of dismissal, then it does not much matter whether he is charged with one type of assault or another sort of assault. The relevant question is is it an assault and what are his duties and in those circumstances do the interests of the commission justify something happening to him.

. . . and the nature of one offence or the class of it was an assault (and) the nature, type, class, kind . . . of the other two offences is that of an unlawful detention or imprisonment. Those are not terms of art but they indicate the connotations of the offence."

Mr Black submitted on behalf of the commission that it was open to the board to treat what had happened here as amounting to "abducting two young women" -

"in that that is comprehended within the general nature of the offence with which the applicant was charged. It is wrong to say regarded as a matter of law, but it is not an unfair description of what actually happened."

I have quoted from Mr Black's submissions at some length on this aspect because the meaning to be given to the word "nature" in s.61(1) may be of considerable importance in future cases considered by the commission or by a board on appeal. Counsel for the parties did not refer me to any authorities on the meaning of the word "nature" as it appears in s.61(1) nor have my own researches found any such authority.

I am unable to accept Mr Black's submission that the words "nature of the offence" mean the "kind, sort, class or type" of the offence. I accept Mr Callaway's submission in reply that, if it be necessary to consider a dictionary definition, then the Shorter Oxford English Dictionary definition should be accepted. Its definition of the word "nature" includes the following meaning:

"I. 1. The essential qualities of a thing; the inherent and inseparable combination of properties essentially pertaining to anything and giving it its fundamental character."

In my opinion the board failed to have regard to the nature of the offences of which the applicant had been convicted and it had regard to three offences, detailed in its decision, of which offences the applicant had not been convicted and with which he had not been charged. The board then compounded its errors by referring in the written reasons for its decision to "the offences perpetrated by the appellant in Queensland of abducting two young women" - offences with which the applicant had not been charged. In so acting the board took into account irrelevant considerations.

Mr Black also submitted that "even if the nature of the offences was misapprehended in some sense of legal characterisation, there was no injustice done". Having regard to the wording of the board's decision and, in particular, its stated reasons for the decision, I am quite unable to accept the submission that there was no injustice done.

Grounds 5, 7 and 8 of the application are closely related. They read as follows:

"5. The decision was based on the Board's consideration that those offences were so serious that the Applicant was very fortunate in not being sentenced to a term of imprisonment.

. . .

7. The decision was based on the Board's having given serious thought to the penalty of dismissal having been available to the Delegate.

8. The decision was based on the Board's feeling that the Delegate had extended to the Applicant the utmost leniency."

The commission submitted that, in stating that the "offences were so serious that the Applicant was very fortunate in not being sentenced to a term of imprisonment", the board was properly describing the nature and circumstances of the offences. Further, it submitted that the board in stating that it had "given serious thought to the penalty of dismissal having been available" to the delegate and in stating that it "felt that the delegate had extended to (the applicant) the utmost leniency", the board was again properly expressing its opinion as to the nature and circumstances of the offences and the appropriate range of the decisions that might have been made in the circumstances.

Mr Black did not dispute that, under s.61(1) of the Telecommunications Act, the duty of the delegate (and, on appeal, the board) was to consider whether the interests of the commission justified it in deciding to transfer the applicant to another position which had a lower classification and that it was only in considering that question that the delegate was required to have regard to the nature and the circumstances of the offences and the nature of the applicant's duties. The fundamental question for the board was whether the interests of the commission justified the delegate's decision. In my opinion the terms of s.61(1) did not entitle the board to form an opinion that the applicant was very fortunate that the Magistrates Court did not impose a term of imprisonment and then take that opinion into account in considering the applicant's appeal. Mr Black in a carefully prepared submission examined in some detail the factual matters showing the nature and circumstances of the offences. This was designed to "explain why the board said some of the things that it did, and put in context some of the things that the board said". They may explain why the board said certain things, but they cannot justify it in doing so.

Mr Black accepted that under s.61(1) it was no part of the role of the board to consider whether the penalty imposed by the Magistrates Court was appropriate for the offences of which the applicant had been convicted or to approach the appeal on the basis of considering whether the "punishment inflicted" by the delegate was appropriate. However, he contended that the board had not considered the appropriateness of the penalty imposed by the Magistrates Court nor whether, the "punishment inflicted" by the delegate was appropriate. He submitted that the board's statements (the subject of grounds 5, 7 and 8) were merely comments directed to the nature and circumstances of the offences and that the board's decision was not "based on" any of those statements; it was "based on" the last sentence of the reasons for decision given by the board, namely "It would not be appropriate for him (the applicant) to have under his direction staff who might hold him in contempt when they became informed of the occurrence in Queensland".

I accept Mr Black's submission that not everything that is said in a decision can be said to be a matter upon which the decision is based. However, in my opinion the whole tenor of the board's decision shows that it wrongly saw its role as being to consider whether the "punishment inflicted" by the delegate (as the board regarded it) was appropriate having regard to the offences which it considered "were so serious that he was very fortunate in not being sentenced to a term of imprisonment". The board's decision used the word "punishment" three times and the word "penalty" twice. In my opinion the board's view of its function is illustrated by the words in which it expressed its decision on the appeal. It said that it "dismissed the appeal and confirmed the penalty imposed by the Delegate".

The board stated that it "gave serious thought to the penalty of dismissal having been available to the Delegate who, in his wisdom, decided that the Commission should retain the services of the appellant". I am unable to accept Mr Black's argument that the board in that passage was merely describing the "range of options open" to it and the delegate. Firstly, the board did not describe a range - it only referred to one end of a range, namely, possible dismissal. Secondly, the board did more than merely refer to dismissal as a possible option. It stated that it had given "serious thought" to the penalty of dismissal having been available to the delegate. It did not suggest that it had given any thought - serious or otherwise - to the other end of the range of options available to the delegate, namely, to "counsel the officer".

The board said that it "felt that the Delegate had extended to him the utmost leniency" - a statement consistent with the board's erroneous approach to its task, namely to consider whether the "punishment inflicted" by the delegate was appropriate. In any event, I accept Mr Callaway's submission that on all the material before the board it was not open to a board acting reasonably to come to the conclusion that the delegate had extended to him the utmost leniency under s.61(1).

In my opinion, the board, in considering whether the "punishment inflicted" by the delegate was appropriate and in concluding that the applicant was "very fortunate in not being sentenced to a term of imprisonment" by the Magistrates Court, took into account irrelevant considerations in the exercise of its powers.

Mr Black also advanced a subsidiary argument lest the court decide, contrary to his submission, that the board had had regard to the fact that "the applicant was very fortunate in not being sentenced to a term of imprisonment". He submitted that that matter would be relevant "merely to show that there are no matters that . . . ought to be put on the scales, as it were, in ameliorating the situation". As Dr Buchanan expressed it at a later stage, the board's reference to this matter "was a way of bringing forward, only to dismiss (it), a point that might have counted in Mr Perkins' favour". Assuming, without deciding, that this submission be correct and that s.61 does authorize such a course, I am nonetheless satisfied that the board did not refer to this matter for the purpose which would be permissible under this submission.

Mr Callaway also submitted that the board's decision shows that it "asked itself the wrong question" and cited Anisminic Ltd v. Foreign Compensation Commission (1969) 2 A.C. 147. In that case Lord Pearce said (at p.195):

"If the tribunal is intended on a true construction of the Act to inquire into and finally decide questions within a certain area, the courts' supervisory duty is to see that it makes the authorised inquiry according to natural justice and arrives at a decision whether right or wrong. They will intervene if the tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself)."

And Lord Pearson said (at p.215):

" . . . and so the commission embarked upon an irrelevant inquiry and (in the familiar phrase) asked themselves the wrong question and gave a purported determination which was outside the area of their jurisdiction. If that is the right view of what the commission have done, there has been excess of jurisdiction."

It was common ground that the decision should be read fairly and should not be read in a precious fashion. However, in my opinion the board's decision read as a whole shows that it misconceived its function and did ask itself the wrong question, namely, whether the "punishment inflicted" was appropriate. If there were any doubt as to the board's approach to its function then an examination of the transcript of the hearing before the board would assist in removing it; the board asked the commission's representative whether "the only problem" was "to decide whether or not the penalty was appropriate" and then referred to "getting down" to "the appropriateness of the penalty imposed by the delegate".

Grounds 6 and 9 may also be dealt with together. They read as follows:

"6. The decision was based on the Board's opinion that the very nature of those offences would cause the Applicant to be held in contempt by his fellow officers in the Service of the fourth Respondent, of which there was no or insufficient evidence and there was evidence to the contrary.

. . .

9. The decision was based on the Board's opinion that it would not be appropriate for the Applicant to have under his direction staff who might hold him in contempt when they became informed of the occurrence in Queensland, of which possibility there was no or insufficient evidence and there was evidence to the contrary."

As to ground 9, Mr Black did not dispute that the board's decision was based on that matter and indeed relied upon it as demonstrating that the board had correctly applied s.61(1) of the Telecommunications Act in considering whether the interests of the commission justified the transfer of the applicant to a position of a lower classification. He accepted that there was no evidence that "it would not be appropriate for the applicant to have under his direction staff who might hold him in contempt when they become informed of the occurrence in Queensland". However, he emphasized the words "appropriate" and "might" in that sentence and said that that conclusion by the board was based upon a "process of reasoning that cannot be attacked". He contended "that as a matter of inevitable logic . . . he might have persons under his direction (who) might hold him in contempt when they became informed of the occurrence in Queensland . . . nor would it assist to prove that they did not hold him in contempt . . . (because) at some later stage they might".

In answer to a question Mr Black also said that, in considering whether subordinate employees "might hold him in contempt", it was proper to assume that those employees might take "the unfairest view of the facts" and ignore (or be unaware of) the matters in mitigation including the evidence of the applicant's medical condition at the time of the offences, his subsequent medical treatment and the medical opinion that on 10 March 1981 he was fit to resume his former duties. He conceded that it followed logically from his submission that the applicant must for the remainder of his career with the commission "stay in a position in which he will never supervise other employees".

Substantially the same submissions were made as to ground 6. Mr Black conceded that there was no specific evidence to support this statement by the board, but placed emphasis upon the words "the very nature of the offences". It was also conceded that the reference to "the very nature of the offences" necessarily involved ignoring the surrounding or mitigating circumstances.

As to ground 6 and ground 9 I accept the submission put by Mr Callaway in reply, relying on s.5(2)(g) of the Judicial Review Act, that "to base their conclusion on speculation about what wrong-headed people might think if they disregarded at least half of the evidence" is an exercise of a power that is so unreasonable that no reasonable board could have so exercised the power. The "evidence to the contrary" referred to in ground 6 and ground 9 is dealt with later under ground 12.

I turn now to ground 10 of the application, which was in the following terms:

"10. The Board did not let the Applicant or his representative at the hearing before the Board know their impressions in relation to any of the matters referred to in paragraphs 3 to 9."

Mr Callaway made it clear that, without abandoning any of the matters, he relied in particular upon the board's failure to inform the applicant of its impressions in relation to the matters appearing in grounds 6 and 9. He cited several authorities including R. v. Gaming Board: Ex parte Benaim and Khaida (1970) 2 Q.B. 417 where Lord Denning M.R. said (at p.430):

"It follows, I think, that the Board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified in the sub-section. They must let him know what their impressions are so that he can disabuse them."

Mr Callaway also cited the decision in Keller v. Drainage Tribunal and Montague (1980) V.R. 449 where Murray J. said (at p.456, 457):

"In the present case there can be no doubt that the applicants were given and availed themselves of the right to be heard and to put their case. Their complaint really lies in the fact that the matter was decided by the Tribunal on a basis that was never put to them . . .

The problem is therefore not whether the applicants were given a hearing but whether they were, in the events which happened, given a fair hearing. . . . Their attention was never directed to what was in the minds of the Tribunal so they could make their answer. . . . It is in this respect that I think the principles of fairness and accordingly the principles of natural justice have not been observed."

Mr Black endeavoured to distinguish Keller v. Drainage Tribunal and Montague (supra) on the basis that the possible relevance of these matters (whether the applicant would or might be held in contempt) was so obvious that it was not necessary for the board to draw attention to them. However, he conceded that at the hearing before the board the case for the commission had not put those matters as justifying the delegate's decision on behalf of the commission. Further, although the applicant's representative submitted to the board on two occasions that "no case has been established to date to show that the interests of the commission were in fact jeopardized (sic) in any way by the incident in Queensland", the commission's representative did not suggest at any stage that the delegate's decision was justified either because subordinate employees might hold the applicant in contempt or because fellow officers would hold him in contempt. In addition, the commission called as a witness before the board one J. W. Sloman, the manager of the service standards branch of the commission, in which branch the applicant was employed both before and after the offences; as Mr Callaway pointed out, Mr Sloman was not asked any questions by the commission representative or by any member of the board as to whether the applicant either was or was likely to be held in contempt by fellow officers or by subordinate employees.

The board members took no action to draw the applicant's attention to their "impressions" on this aspect "so that he (could) disabuse them". If those impressions of the board were only formed after the completion of the hearing, then, as Murray J. said in Keller v. Drainage Tribunal and Montague (supra at p.457), "there was nothing to prevent them from calling the parties back, directing their attention to (their impressions) . . . and giving them the opportunity to call further evidence and make further submissions". As to Mr Black's argument, referred to earlier, that it was not a matter for evidence, I accept Mr Callaway's submission that the best material on which the board could have made a prediction would have been evidence as to whether at the time of the hearing before the board the applicant was held in contempt by officers of the commission who knew about the offences in Queensland; further, that if evidence showed that he was not so held in contempt, it would have been open to the board to infer that it was unlikely to happen in the future. I also accept his submission that it was not necessary for the applicant to attempt "the impossible", namely to "prove that no one might one day on unfair irrational grounds hold Mr Perkins in contempt".

Ground 11 of the application was that:

"11. The Board failed to take into account, alternatively misdirected themselves with respect to, the criteria in sub-section 61(1) of the Telecommunications Act 1975."

For reasons which sufficiently appear from what I have said in dealing with grounds 3-9 inclusive, in my opinion the applicant has established that the board both failed to take into account and misdirected itself with respect to the criteria in s.61(1).

The last ground in the application was ground 12, which was in the following terms:

"12. The Board failed to take into account, alternatively failed to give due weight to, the evidence before them, especially but not limited to -

(a) the evidence relating to the Applicant's health; and

(b) the evidence relating to the way in which the Applicant was regarded by his fellows and superiors in the Service of the fourth Respondent."

The board's decision made no reference to the medical evidence relating to the applicant's health at the time of the offences, nor to his subsequent medical treatment, nor to the medical opinion that on 10 March 1981 the applicant was fit to resume his former duties. Further, the decision made no reference to material before it as to the way in which he was regarded by his fellow officers and his superiors. That material included the following passages from the pre-sentence report furnished to the Magistrates Court, Southport by a probation officer of the Queensland Probation Service:

"Co-employees at Telecom in Melbourne were interviewed for the purpose of this report. All stated that they had noticed a general uneasiness in Perkins in the weeks prior to him going on leave. This was described variously as depression, lack of concentration, confusion, and a greater than usual preoccupation with personal and family problems.

. . .

Perkins is held in extremely high regard, on both professional and personal levels, by all his colleagues and senior officials of Telecom in Melbourne. During the compilation of this report numerous persons contacted the writer to offer their assistance in helping Perkins overcome his problems.

He was described by his immediate superior, Mr. A. Holderness as, 'an outstanding technical officer, a person who achieved under high pressure and a person irreplacable in their section.' . . .

Although he is generally considered to be somewhat financially prudent by his colleagues, all agreed that in every other aspect, time, energy, and knowledge he was always prepared to give without question and to do more than his fair share of any project undertaken. Many maintained that this also applied when friends sought his assistance in private projects undertaken in a variety of interests outside their normal field of employment."

As Mr Callaway said the applicant's fellow officers and subordinates would be the less likely to hold him in contempt if they were aware of the material as to his medical condition at the time of the offences, his subsequent medical treatment and the medical opinion of 10 March 1981 that he was fit to resume his former work. In my view the board's assertion that the "very nature" of the offences would cause him to be held in contempt by his fellow officers suggests that it did not take into account the evidence referred to in ground 12(a) and (b) of the application.

Mr Black submitted that there was no basis for concluding that the board had failed to take these matters into account. Of course, the omission of any express reference to a matter does not necessarily establish that it was not considered - just as the mere assertion by a board that it has considered a matter will not necessarily establish that it has done so. I adopt what Toohey J. said in Turner v. The Minister for Immigration & Ethnic Affairs (judgment delivered 27/5/1981 - not yet reported):

"In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision or indeed from the decision itself that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was."

My examination of the board's decision, including its reasons for decision, leads me to the conclusion that it did not take into account the evidence on either of the two matters set out in ground 12(a) and (b) and accordingly failed to take relevant considerations into account in exercising its powers (cp. s.62(6)(c) of the Telecommunications Act). In reaching that conclusion I have been influenced by the whole tenor of the board's reasons for decision rather than the absence of any express reference to either matter.

It was common ground that the court has a discretion as to whether to make the orders sought (see s.16(1) of the Judicial Review Act). In its statement of contentions the commission submitted that:

"Even if some or all of the grounds relied upon by the Applicant are made out, nevertheless the Court in the exercise of its discretion ought not to make any of the orders sought because -

(a) no injustice was done to the Applicant;

(b) the decision was manifestly correct."

Mr Callaway submitted that the board's decision, involving, as I have decided, a breach of the rules of natural justice, is a nullity as regards the applicant, citing Durayappah v. Fernando and others (1967) 2 A.C. 337 at pp.352-354, Calvin v. Carr and others (1979 53 A.L.J.R. 471 at p.474, Ridge v. Baldwin and others (1964) A.C. 40 and Banks v. Transport Regulation Board (Victoria) (1968) 119 C.L.R. 222 at p.233. I accept that submission and refer to a decision given by a Full Court of this Court whilst this case was being heard. In Dixon v. The Commonwealth of Australia and others (judgment given 18 June 1981 - not yet reported), Bowen C.J., Deane and Kelly JJ. said:

"If the applicable rules or standards are not observed, it is not relevant to inquire whether the decision reached was the correct one. If that decision adversely affects the rights, property or legitimate expectations of a person who has been denied natural justice, the decision will, at least to that extent, be void (see, Calvin v. Carr (1979) 22 A.L.R. 417 at pp. 425-426; and, as to the reference to 'legitimate expectations', Salemi v. Minister for Immigration and Ethnic Affairs (No. 2), (1977) 137 C.L.R. 388 at pp. 419-420, 437-440 and 451-452 and Heatley v. Tasmanian Racing and Gaming Commission, (1977) 137 C.L.R. 487 at pp. 508-509)."

However, in his address Mr Black very properly said that if the court found that a substantial injustice, as distinct from a "technical breach" of the rules of natural justice, had occurred he would not contend that the court should exercise its discretion against the applicant. In my opinion it has been amply demonstrated that a substantial injustice was done to the applicant. Having regard to the views which I have expressed, this is plainly not a case where it would be proper to exercise the court's discretion against the applicant.

The orders sought by the applicant were as follows:

"1. An order quashing or setting aside the decision with effect from and including the date on which it was made.

2. An order directing the fourth Respondent to arrange for a Disciplinary Appeal Board under section 63 of the Telecommunications Act 1975 constituted by a different Chairman and different Members from the first, second and third Respondents to hear and determine the Applicant's appeal from the decision of the Delegate.

3. Alternatively to 2, an Order referring the matter to which the decision relates to the Board for further consideration, subject to such directions as this Honourable Court thinks fit.

4. An order declaring that the decision of the Delegate has not taken effect and does not take effect unless the Applicant's appeal therefrom lapses or is withdrawn or the Board or a differently constituted Disciplinary Appeal Board confirms, either with or without a variation, that decision.

5. An order directing the fourth Respondent to pay to the Applicant an amount after allowance for income tax, equal to the difference between -

(a) the salary he would have received as a Senior Technical Officer Grade 3; and

(b) the salary he has in fact received as a Senior Technical Officer Grade 1,

on each pay day from 12th March, 1981 to the first pay day when his salary as a Senior Technical Officer Grade 3 is restored, with interest thereon at % per annum from each such pay day to the date of payment of that difference."

The commission conceded that if, contrary to its submissions, the court were to make an order directing a fresh hearing then such a hearing should be by a disciplinary appeal board constituted by persons other than the first, second and third respondents. For the reasons already given, orders will be made in terms of orders 1 and 2 above.

The commission submitted that in its discretion the court should refuse to make the orders sought in paragraphs 4 and 5 above because during the material period the applicant had not in fact performed the work and exercised the responsibility of the position of a Senior Technical Officer Grade 3. It was put that pay is recompense for work done and the applicant should not be paid for work which he did not do. I am not prepared to accept that submission where, as here, the applicant was prevented by his employer, the commission, from performing the work of the higher classification. It was not disputed that the applicant was ready, willing and available to perform the work of the higher position and it was work that he had been performing before the events of August 1980.

In addition to that general consideration, on the facts of this matter the commission's actions contributed to the board's error of approaching its task on the wrong basis, namely, of considering whether the punishment inflicted by the delegate was appropriate. Firstly, at the hearing before the board the commission's representative gave an affirmative answer when asked by the chairman whether "the only problem" before the board was "to decide whether or not the penalty is appropriate". Secondly, the commission led the applicant to believe that it had imposed a penalty. When the delegate earlier wrote to the applicant to inform him of the decision he enclosed a statement headed "appeals against the imposition of a penalty" which informed the applicant that he had "the right . . . to appeal against the penalty imposed upon you". Perhaps I should add that it appears that it is the commission's practice to forward that statement as to the right to appeal to officers who have been transferred by decision of the delegate under s.61 of the Telecommunications Act; if so, it is desirable that the commission take the necessary steps to amend that statement to make it clear that it is not an appeal against a penalty.

In my opinion it is fair and just that, pending the proper determination by a disciplinary appeal board of his appeal against the decision of the commission's delegate, the applicant should be paid the salary he would have received as a Senior Technical Officer Grade 3 and that the necessary adjustments be made in relation to the period since 12 March 1981.

As appears from the latter part of the applicant's proposed order 5, an order is sought for the payment of interest on the amount of additional salary claimed in respect of the period commencing on 12 March 1981. Notwithstanding what I have said as to the applicant's claim to be paid the salary for the higher classification, I am not satisfied that the commission should be ordered to pay interest.

Accordingly, I shall make an order in the terms of the orders sought in 4 and 5 above, but omitting the words "or the Board" from order 4 and omitting from order 5 the words commencing "with interest thereon . . ." The orders will be renumbered as a consequence of the omission of the applicant's alternative order 3.

The commission is also ordered to pay the costs of the applicant which, in default of agreement, shall be taxed.