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Perkins v Cuthill

Perkins v Cuthill

Case [1981] FCA 92 2 July 1981

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the said delegate has not taken effect and does not take effect unless the applicant's appeal therefrom lapses or is withdrawn or a differently constituted disciplinary appeal board confirms, either with or without a variation, that decision.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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Perkins v Cuthill

Details

AGLC: Perkins, Lyle John v Cuthill, William John & Ors [1981] FCA 92
Case: [1981] FCA 92
Decision Date: 02 JULY 1981

CaseChat Overview and Summary

The case of Perkins v Cuthill involved an appeal against the dismissal of an appeal against demotion by the Disciplinary Appeal Board, pursuant to the Telecommunications Act. The applicant, Perkins, sought judicial review of the decision of the Disciplinary Appeal Board, which had dismissed his appeal against the decision of the delegate of the Australian Telecommunications Commission to demote him from Senior Technical Officer Grade 3 to Senior Technical Officer Grade 1. The applicant argued that the Board had erred in its consideration of the nature of the offences of which he had been convicted, and that this had led to an incorrect determination of the effect of a Queensland Act which deemed a conviction not to be a conviction.

The primary legal issue before the court was the interpretation of section 61(1) of the Telecommunications Act and the meaning of "nature" in the context of the offences for which the applicant had been convicted. The court was required to determine whether the Board had correctly applied the law in dismissing the applicant's appeal, and whether the Board's determination of the effect of the Queensland Act was correct. The court also had to consider the effect of the Board's mistaken understanding of the nature of the offences on the outcome of the appeal.

The court found that the Board had erred in its consideration of the nature of the offences of which the applicant had been convicted. The court held that the Board had misunderstood the effect of the Queensland Act, and that this error had led to an incorrect determination of the nature of the offences. The court quashed the decision of the Disciplinary Appeal Board and directed the Australian Telecommunications Commission to arrange for a differently constituted disciplinary appeal board to hear and determine the applicant's appeal. The court also declared that the decision of the delegate had not taken effect and would not take effect unless the applicant's appeal lapsed or was withdrawn, or a differently constituted disciplinary appeal board confirmed the decision. The court further directed the Commission to pay the applicant an amount equal to the difference between the salary he would have received as a Senior Technical Officer Grade 3 and the salary he had in fact received as a Senior Technical Officer Grade 1, for each pay day from 12 March 1981 to the first pay day when his salary as a Senior Technical Officer Grade 3 was restored. The court also reserved liberty to apply to each party and directed the Commission to pay the applicant's costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Perkins, Lyle John v Cuthill, William John & Ors [1981] FCA 92

Most Recent Citation

Dawes, D.V. v. Gesling, C.C. & Ors [1982] FCA 180

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Citation 1 (Para 18)

…are not confined to the principles that support the grant of an interlocutory injunction. In that respect, the applicant relied on Perkins v Cuthill (1981) 52 FLR 236 ( Perkins ) at 237-238 per Keely J; Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 ( Snow ) at 129 per French J; Galaxy at [19] per Thawley…
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Citation 2 (Para 5)

…lation may be little distinguishable from the application of principles governing the grant of interlocutory injunctions. 7. In Perkins v Cuthill (1981) 52 FLR 236, to which French J referred, Keely J accepted a submission that he should not apply the principles relevant to the grant of interlocutory injunctions, an…
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Citation 3 (Para 7)

…In Perkins v Cuthill (1981) 52 FLR 236, to which French J referred, Keely J accepted a submission that he should not apply the principles relevant to the grant of interlocutory injunctions, and stated at 238 – In my opinion s 15(1)(a) requires an applicant to satisfy the Court that reasons or circumstances exist whi…
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Citation 4 (Para 1)

…e circumstances of the case. The essence of the discretion is whether circumstances exist which make it just that the court should make the order. In Perkins v Cuthill (1981) 52 FLR 238, Keely J considered the discretion under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s15, couched in broad terms, and r…
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Citation 5 (Para 4)

…t satisfies the Court that it is just in all the circumstances to make such an order. That was the approach suggested by Keely J in Perkins v Cuthill (1981) 34 ALR 669 at 671 and favoured by French J in Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 at 131.…
Broadbent, M.R.M. v Fairbairn, W.A [1995] FCA 501
Citation 6

…Ethnic Affairs (1991) 24 ALD 405 Referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Referred to Perkins v Cuthill (1981) 34 ALR 669 Referred to Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 Applied…
Mair, P.J. v Bartholomew, J.E [1992] FCA 283
Citation 7

…g to the Committee dealing with the matter (cf Dixon v Commonwealth (1981) 3 ALD 289; Hamblin v Duffy (1981) 34 ALR 333; 3 ALD 153; Perkins v Cuthill (1981) 34 ALR 669). ... On the approach to the Act which I have adopted a Promotions Appeal Committee in a case such as this has two basic duties - to make full inquir…
Huang, N. v Owen, K.T. & Minister for Immigration Local Government & Ethnic Affairs [1989] FCA 96
Citation 8

…d in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 ALN 237 by Toohey J., who agreed with the criterion suggested in Perkins v Cuthill (1981) 52 FLR 236 at 238, namely, that the court must be satisfied that "reasons or circumstances exist which make it just that the court should make the order sought"…
Munchies Management Pty Ltd v Belperio [1988] FCA 413
Citation 9

…Perkins v Cuthill (1981) 34 ALR 669…
Snow, P.J.R. v Deputy Commissioner of Taxation [1987] FCA 22
Citation 10

…Perkins v. Cuthill (1981) 34 ALR 669, 671 per Keely J.…
Karina Fisheries Pty Ltd v Mackie, D.W [1986] FCA 58
Citation 11

…Perkins v. Cuthill (1981) 34 A.L.R. 669…
Azemoudeh, M. v Minister for Immigration & Ethnic Affairs [1985] FCA 518
Citation 12

…Migration Act 1958 ss.6, 6A, 18, 36A Administrative Decisions (Judicial Review) Act 1977 ss. 5, 15 Faingold v. Zammit (1984) 1 F.L.R. 87, Dallikavak v. Minister for Immigration and Ethnic Affairs (6 August 1985, not reported), Australian Coarse Grain Pool Pty Limited v. Barley Marketing Board of Que…
Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449
Citation 13

…Jenkinson J. adopted with approval the criterion suggested by Keely J. in Perkins v. Cuthill (1981) 52 F.L.R. 236 at 238 - "s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought". I respectfully agree.…
Dallikavak v Minister for Immigration and Ethnic Affairs [1985] FCA 374
Citation 14

…In my opinion the criterion suggested by Keely J., in Perkins v. Cuthill (1981) 52 F.L.R. 236 at 258, for the exercise of that power - "s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought" - is a bet…
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46
Citation 15

…Perkins v. Cuthill (1981) 34 ALR 669; Plegas v. McCabe (unreported, Federal Court of Australia, Lockhart J, 3 August 1984; Willara Pty Ltd v. McVeigh (1984) 54 ALR 65; Re W (an Infant) (1971) AC 682; Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223; Secretary of State for Education and…
Martin Karunakaran v the Minister for Immigration & Ethnic Affairs [1984] FCA 381
Citation 16

…considered by Bowen C.J. in Collins v. Minister for Immigration and Ethnic Affairs (unreported - 26 November 1982) by Keely J. in Perkins v. Cuthill (1981) 34 ALR 669 and by Northrop J. and a Full Court of this Court in Faingold v. Zammit. The decision of Northrop J. is not reported: the decision of the Full Court…
Dean, Allan Kendrick v Woodward, Lionel Barrie [1984] FCA 365
Citation 17

…circumstances exist which make it just to make the order sought. The reasons or circumstances need not be special or exceptional (Perkins v. Cuthill (1981) 34 ALR 669 at 671).…
Murchison, Ian McKenzie v Keating, Paul John [1984] FCA 176
Citation 18

…under that Act is that laid down in the Australian Coarse Grain Pool Case, or the slightly different test propounded by Keely J. in Peakins v Cuthill (1981) 34 ALR 669, i.e. whether circumstances exist which make it just that the court should grant interlocutory relief, is of little consequence for the purposes of d…
Faingold v Zammit [1984] FCA 1
Citation 19

…lief should be granted and in any event in practical terms this test is not very different from the test formulated by Keely J. in Perkins v. Cuthill (1981) 52 FLR 236.…
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Citation 20

…"Because the decisions of Promotions Appeal Committees under the Act affect the promotion and advancement of individual public servants in the Public Service, I think the proper protection of their rights at least demands that those involved in appeal proceedings have the right to know the case put …

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Cases Cited

Banks v Transport Regulation Board (Vic) [1968] HCA 23
Citation 1

…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.…
Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6
Citation 2

…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 …
Calvin v Carr (1980) AC 574
Citation 3

…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.…

Legislation Cited

Administrative Decisions (Judicial Review) Act 1977 (Cth) 5
2 mentions
Telecommunications Act 1975 (Cth) 61(1)
2 mentions