Preston v Carmody

[1993] FCA 542

GEOFFREY PRESTON v. L. CARMODY, J. CAUCHI and J. McAULIFFE and CHIEF EXECUTIVE
OFFICER OF THE FAMILY COURT OF AUSTRALIA
No. NG232 of 1993
FED No. 542
Number of pages - 18
Administrative Law
(1993) 44 FCR 1
(1993) 31 ALD 309 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J(1)

CATCHWORDS

Administrative Law - Public service - Inefficiency - Retirement of officer on the ground of inefficiency - Whether a non-cooperative or defiant attitude may constitute "inefficiency" - Complaint of denial of natural justice because a member of an advisory committee had earlier disapproved work of the applicant - Whether bias of advisor infects decision of primary decision maker - Failure of applicant to object to appointment of advisor when made - Whether any lack of natural justice is cured by appeal - Whether Appeal Committee placed onus of proof on applicant.

Public Service Act 1922, ss.56, 61, 62, 76S, 76W and 76Z.

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

HEARING

SYDNEY, 21 July 1993

#DATE 12:8:1993

Counsel for the Applicant: S. Gageler

Solicitors for the Applicant: Leitch Hasson and Dent

Counsel for the Respondent: R. Henderson

Solicitors for the Respondent: Australian GovernmentSolicitor

ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The applicant pay to the respondents their costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

WILCOX J This is an application under the Administrative Decisions (Judicial Review) Act 1977 seeking review of two decisions concerning the termination of the employment of the applicant, Geoffrey Preston, by the Family Court of Australia. The case raises the important general question of the width of the term "efficiency" in Division 8C of Part III of the Public Service Act 1922. That Division confers on Secretaries of Departments, and their equivalents, power to redeploy or retire inefficient officers, even though they have not been charged with misconduct.

1. The first decision was made by the third respondent, Mr L Glare, Chief Executive Officer of the Family Court. Mr Glare directed that the applicant be retired from the Australian Public Service. The second decision was made by the first respondents, Messrs L Carmody, J Cauchi and J McAuliffe, sitting as a Redeployment and Retirement Appeal Committee constituted under Part II of the Merit Protection (Australian Government Employees) Act 1984. The Appeal Committee confirmed Mr Glare's direction.

2. In the filed Application, the Family Court itself was made the second respondent. However, at the hearing of the matter, counsel accepted that the Court should not have been joined as a party. By consent, it was dismissed from the proceeding.

3. The first respondents appeared by their solicitor to submit to the order of the Court, except as to costs. The third respondent was represented by counsel, Ms Rhonda Henderson, who put arguments in support of the validity of both decisions. Mr Stephen Gageler appeared for the applicant.

The facts
5. The applicant is a qualified psychologist. In 1980 he became employed in the Parramatta Registry of the Family Court as a Court Counsellor Class 2. The title of the position was subsequently changed to Professional Officer (Class 2) Counselling. The published Position Profile gives this general description of the duties attaching to the position:

"Under general direction perform complex counselling of persons and families under the provisions of the Family Law Act; Carry out difficult investigations and report on parental access to, and the welfare of, children."

1. The job specification contained in the Position Profile spells out more detail:
   

"The occupant of this position is part of a counselling team which performs a range of duties allocated by the Director of Court Counselling under the supervision of the Senior Officer Grade C in the larger registries.

The range of duties performed at this level include: Undertake crisis and conciliation counselling for both voluntary and Court directed clientele who are in dispute over custody of, and access to, children. Undertake assessments and prepare family reports as ordered by the Court and be accountable for these reports and available for cross-examination.

Attend Family Court circuits servicing the country population; undertake associated counselling and administrative duties. Undertake administrative tasks as required. Liaise and consult on professional counselling matters with lawyers and other professionals. Provide education to the community about the services available in the Court. Participate in on-going supervision and professional development programs."

1. The Position Profile goes on to state the selection criteria attaching to the position, identifying some matters as "important". The important criteria include three personal qualities: "Ability to critically review own work, accept professional evaluation and be part of a professional team"; "Self starter, ability to manage a hearing case load with supervision"; and "Ability to communicate effectively".

2. Part of a court counsellor's duties is to prepare reports under s.62A of the Family Law Act 1975. That section applies to proceedings under the Act involving the welfare of a child. In such a case the Court may direct a court counsellor to furnish a report. I understand that reports are most commonly ordered in custody cases. The applicant said in evidence that, during his employment by the Family Court, he prepared approximately ten reports each year. I assume that, in order to prepare each report, it was necessary for him to interview the parties to the litigation, the children whose custody was in dispute and, possibly, others.

3. The evidence contains a considerable amount of material relating to the applicant's work history. Some of this material was tendered by each party, without objection from the other. But counsel demonstrated by their submissions that they realised that it was not for the Court to decide whether or not it was desirable for the applicant to be retired from the Australian Public Service. The questions whether or not the applicant was an inefficient officer, and (if so), what course ought to be taken in regard to his employment, were matters committed to the decision of Mr Glare in the first instance and to the Appeal Committee on review. The task of the Court is to address the legal issues raised by the applicant in connection with the making of the decisions. For this reason, I do not propose to set out the whole of the material adduced in evidence. I will summarise only the events leading directly to the decisions under challenge. However, it is appropriate, in order to put these events in perspective, to mention two non-controversial matters disclosed by the earlier material.

4. First, it is clear that Mr Preston is a well-qualified and competent psychologist. There is nothing in the evidence which suggests otherwise - the decisions to retire him from the Public Service arose out of his alleged inability, or unwillingness, to work constructively with other people in the Family Court. Second, although the question of the applicant's attitude to others came to a head in late 1991 and 1992, it was not then a new problem. Over the years, the applicant has had a difficult relationship with some, at least, of his superior officers. In making that statement, I do not attribute any blame. The existence of an uneasy relationship between an officer and his/her superiors does not necessarily indicate fault. In the wider interests of a government organisation, and the public whom it is designed to serve, it is sometimes appropriate for subordinate officers to question established practices and attitudes and to propose changes. Such actions may lead to ill-feeling. However, provided that officers act in a courteous and constructive way, no criticism ought be directed at them on that account. It is clear that, over the years before 1991, Mr Preston criticised some established practices and attitudes within the Family Court. This caused antagonism towards him. Whether his criticisms were justified, and whether they were made in a constructive and courteous manner, are not matters I have to determine.

5. The chain of events that led to the applicant's forced retirement commenced in late 1991. In August 1991 the applicant was asked to report on a case which I will identify as "K". He submitted his report in December. His supervisor, Ms Gordana Talevski, thought the report unacceptable, in terms of length, form and content. At her request, the applicant rewrote the report. Ms Talevski thought the report was still unsatisfactory. She referred it to the Director of Court Counselling, Mr Norman Goodsell. Mr Goodsell agreed with Ms Talevski's assessment and made a complaint to the Registry Manager, Mr F E Fitzpatrick. Mr Fitzpatrick directed that no further reports be allocated to the applicant. He also directed that proceedings be instituted against the applicant under the inefficiency provisions of the Public Service Act and instructed Mr Goodsell to prepare a report concerning the applicant's efficiency.

6. Mr Goodsell delivered his report on 30 January 1992. It dealt not only with Mr Preston's report in the "K" case, but also his general performance and his relationships with his supervisors and colleagues. Mr Fitzpatrick forwarded Mr Goodsell's report to the Regional Manager, Parramatta, Ms Jackie Klarkowski. She took up the matter with Mr Glare. Although the letters are not in evidence, it appears that, before he made any decision about the matter, Mr Glare wrote to the applicant inviting his response to Mr Goodsell's report and that the applicant replied.

7. On 28 April Mr Glare wrote to the applicant issuing a formal warning. He gave as his reason that:
   

"... I am not satisfied that you have, in the course of performing the duties required of you, sustained a standard of work performance that can reasonably be expected of a person performing those duties."

1. Mr Glare said in the letter that he was required to appoint an assessment committee to assess the applicant's work performance during the ensuing three months and to recommend the action, if any, that he (Mr Glare) should take at the end of that period. He named the three members of the assessment committee. In view of a submission put to me by Mr Gageler, I mention that one of the three assessment committee members was Ms Jenny Cooke, Regional Director of Court Counselling, Eastern Regional Office. Ms Cooke had previously been involved in the applicant's case, at least in a peripheral way. According to a file note, on 17 January she telephoned one of the counselling supervisors to say that she did not want the applicant's report in the "K" case to leave the office. I infer from this note that Ms Cooke read the report in January and was critical of it. The evidence does not disclose what other contacts (if any) Ms Cooke had with the applicant. Nor does it suggest that the applicant protested to Mr Glare about her inclusion on the assessment committee appointed to evaluate his case.

2. The applicant complained to the Merit Protection and Review Agency at the way he had been treated. This agency is established under the Merit Protection (Australian Government Employees) Act to provide review, external to the Department concerned, of decisions concerning the employment of Commonwealth employees. The Agency undertook a review. Perhaps because of this development, on 24 July Mr Fitzpatrick directed the applicant to resume his full range of duties, including production of s.62A reports. At about this time, Mr Preston was placed under the supervision of a different supervisor.

3. On 6 October 1992, the Merit Protection and Review Agency advised the applicant that it was satisfied that Mr Glare "acted correctly in the circumstances in initiating inefficiency assessment proceedings". The Agency enclosed a lengthy assessment of the case prepared by its Review Officer.

4. In the meantime, the assessment committee was gathering material. It received reports from several officers. Mr Preston's immediate supervisor furnished regular reports to the committee. They were generally favourable to Mr Preston. Nonetheless, when the assessment committee reported to Mr Glare, on 23 November, it recommended his retirement from the Australian Public Service.

5. Mr Glare accepted this recommendation. On 11 December 1992 he issued to the applicant a notice of retirement under s.76W of the Public Service Act in which he stated that he was satisfied that the applicant was, within the meaning of s.76S of the Public Service Act, "an inefficient officer". He attached a statement of his reasons. Omitting formal parts, the document stated:
   

"My reasons are:-

1. Mr Preston quite clearly does not acknowledge the right of his professional supervisors in the Court to give him directions about the manner in which he performs his professional duties unless that supervision conforms with his own views. In his own words, 'The issue at the heart of this matter is the relationship thatshould exist between managerial and professional authority. To the extent that management promotes and facilitates professional excellence (or at least optimal performance) their (sic) is no conflict between the values and aims of these two activities. On the other hand, when management is inept and heavy-handed, showing little regard for the expertise and sensibility of its professional workers then conflicts and disputes arise. When management, as has occurred in the Counselling Section at the Parramatta Registry, demonstrates a profound ignorance of the technical and ethical principles of the work they are intended to organise and supervise; when such management attempts to conceal and overlook policies and organisational practises

(sic) which contribute to, or, of themselves perpetrate child mistreatment, then such management forfeits its right to determine or direct professional practice.' Simply put, this is an unacceptable view for a person working within an organisation to hold. Mr Preston seems incapable of recognising that it is untenable for him to maintain that position while accepting the benefits of employment. He has had ample opportunity to reconsider but has, whenever an issue has arisen, reverted to the view which is summarised above. An examination of his views on the professional issues involved has been conducted by a number of people, including the Assessment Committee, and there is no support for them.

2. Mr Preston's conduct in using a family report to the Court pursuant to section 62A of the Family Law Act 1975 to advance his own interest in the debate about the handling of child abuse cases at Parramatta was highly unprofessional behaviour with the potential to operate to the detriment of the parties in the particular case. It is further evidence of his conviction that his own professional superiority overrides all other considerations.

3. Mr Preston's behaviour and inter-personal relationships are demonstrably disruptive in the Registry.

4. While acknowledging the right of Mr Preston to comment on and criticise the Case Management Guidelines issued by the Chief Justice, he is not free to disobey them. The risk of him doing so in the future appears to be unacceptably high. I am satisfied, for the reasons given above, that Mr Preston is inefficient within the meaning of section 76S of the Public Service Act 1922.

In considering the options for action as a result of my conclusions, I agree with the Assessment Committee that the matter is too serious for no action to be taken. He could not be transferred to another Counselling Section because his attitude is not dependent upon a particular locality but would probably arise in any Registry. I do not think it appropriate to transfer him to non-counselling duties which relied on his existing skills because of his attitude to authority and his lack of wider experience. The only possibility of research work is not available because no such position is vacant. I therefore conclude that Mr Preston should be retired from the Australian Public Service."

1. This decision is the first decision challenged in the present proceeding.

2. On 11 January 1993 the applicant lodged an appeal against Mr Glare's decision with the Retirement and Redeployment Appeals Committee. He forwarded a detailed submission. The submission included a complaint about Ms Cooke being a member of the assessment committee.

3. Over a period of six days, in February and March 1993, the Appeals Committee conducted a hearing of the appeal. It received written submissions from both parties and heard oral evidence and submissions. On 24 March the committee announced its unanimous decision to confirm Mr Glare's decision. This is the second decision challenged by Mr Preston in this proceeding.

4. The Appeals Committee published reasons for its decision. They are lengthy. I will not set them out in full. They summarised the evidence relating to each of Mr Glare's four reasons. The reasons concluded with this summary:
   

"29. The most significant issue in our decision is Mr. Preston's willingness and capacity to comply with the supervisory requirements of his position. This was the most contentious issue in written and oral submissions before our Committee and while it is only one of the reasons for the inefficiency finding by the Family Court, the submissions presented for and against the other three reasons impact to varying degrees on this core issue.

30. We recognise that Mr. Preston is in a unique professional position and his work requires a degree of independence in making client assessments and reports. We also recognise the assessment by the Family court (sic) and witnesses that he is capable of performing the duties of the position. We were also impressed with the written submissions Mr. Preston had made on issues that have emerged from his casework. A number of witnesses also attest to his research skills and his specialist knowledge.

31. We are mindful nonetheless that, like all Public Servants, Mr. Preston is accountable in the normal supervisory chain of command. This is a basic requirement for all staff whatever role they perform. While noting Mr. Preston's unique professional duties, he is not immune from direction from supervisors who, in his case, are also professionally qualified. We consider that Mr. Preston is free to discuss with his supervisors the nature of his supervision but the balance of evidence before our Committee has established that the ongoing dialogue and debate has lead to an unworkable situation. Mr. Preston's supervisors have attempted to accommodate him but there is no indication that he will comply with a normal supervisory relationship in the future.

32. The pattern of Mr. Preston's uncompromising attitude is disturbing. Supervisors prior to the assessment period referred to the time-consuming discussions with Mr. Preston about how he was to be supervised. Ms. Turner, Mr. Preston's supervisor in the assessment period noted some favourable aspects about his performance but overall her reports did not lead the Assessment Committee to conclude that he had changed his attitudes.

33. In response to the Assessment Committee's findings, Mr. Preston in his letter to Mr. Glare of 7 December 1992 ... maintains his position of assuming the right to decide when management forfeits its right to determine or direct professional practice.

34. We accept that statements like this are written in anger and frustration and in the heat of the moment, but Mr. Preston left us with the strong impression that not only had his attitude not changed but he was not displaying any willingness or capacity to compromise his stance.

35. In Mr. Preston's letter to our Committee of 11 January 1993 ... he sees the problem not in himself but with his supervisors.

36. When questioned by our Committee on 4 March 1993 about the supervisory issue Mr. Preston stated he would still have problems if there was not 'congruence' and 'compatibility' with supervisors.

37. Finally in his summary of the case on 5 March 1993, Mr. Preston stated

'... the professional supervision was unsatisfactory, whether this was due to me or Ms. Talevski, or as I have contended to problems in the supervisory relationships, I will leave open' and '... I did not refuse supervision, but did have difficulty with the form and nature of that supervision'.

38. We accept that Mr. Preston has a right to criticise his supervisors and negotiate an appropriate relationship, but he does not have the final say on the matter. While Mr. Preston has not established a pattern of wilful disobedience his attitude to supervision is nonetheless intractable. Unfortunately we saw no evidence of a change, or capacity to change, this attitude pattern. This has lead to an unworkable situation for his supervisors and there was no evidence before our Committee to establish that he can attain or sustain a standard of efficiency on this matter that he could reasonably be expected to attain or sustain. To this extent we find him inefficient. His attitude furthermore detracts from the overall efficiency of the Counselling Service of the Family Court.

39. In relation to the other three reasons of the Chief Executive Officer for the inefficiency finding, we consider there was some overlap with the 'supervision' issue which was crucial in our deliberations and therefore we do not deal with them in the same detail. We did conclude however that

(1) The balance of evidence did not establish that Mr. Preston'sbehaviour in using a Family Report to advance his own views on child abuse was so 'highly unprofessional', in itself, to render him inefficient.

(2) Mr. Preston's behaviour and inter-personal relationships were of concern in relation to his intransigence on supervision but there is insufficient evidence to conclude that he is inefficient in 'non supervisory' situations.

(3) Mr. Preston's continued criticisms of the Case Management Guidelines, while irritating to some Family Court staff, if harnessed in the right way, could have been beneficial to the Family Court.

40. It is a serious matter that Mr. Preston did not report the suspected child abuse to the appropriate welfare body. The legislation does not allow for such autonomy. On the evidence submitted, this appears to be an isolated incident, however, and one not corrected by his supervisors at the time. On balance we would not find him inefficient on this issue. What is of more general concern is the degree of independence Mr. Preston confers on himself which is the basis of our assessment of his incapacity to accept supervision.

41. In summary, because of our significant concerns about Mr. Preston's attitude to supervision we have concluded he has not attained or sustained a standard of efficiency that he may reasonably be expected to attain or sustain. We therefore confirm the retirement decision."

The statutory provisions
23. Ever since its enactment in 1922, the Public Service Act has contained a Division (Div. 6 of Part III) relating to the discipline of officers. Its terms have been amended from time to time but the Division has always provided a power of dismissal. Subdivision C of the Division, as it now stands and stood in 1992, provides for action against officers other than Secretaries of Departments. A Secretary may charge an officer with failure to fulfil his/her duty as an officer (s.61). Thereupon an inquiry must be held (s.62(1)). The person conducting the inquiry may direct that the officer be dismissed from the Australian Public Service. Subject to any appeal to the Disciplinary Appeal Committee, that direction is effective (s.62(10)).

1. Mr Gageler argued that it is important, in the context of the present case, to note the definition in s.56 of failure to fulfil duty as an officer. The section provides that:
   

"an officer shall be taken to have failed to fulfil his duty as an officer if and only if:

(a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply;

(b) he is inefficient or incompetent for reasons or causes within his own control;

(c) he is negligent or careless in the discharge of his duties;

(d) he engages in improper conduct as an officer;

(e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute;

(ea) the officer engages in conduct (including patronage, favouritism or discrimination) in breach of section 33;

(f) he contravenes or fails to comply with:

(i) a provision of this Act, of the regulations or of a determination in force under subsection 9(7A) or section 82D, being a provision that is applicable to him; or

(ii) the terms and conditions upon which he is employed; or

(g) he has, whether before or after becoming an officer, wilfully supplied to an officer or another person acting on behalf of the Commonwealth incorrect or misleading information in connexion with his appointment to the Service."

1. Mr Gageler pointed out that para. (b) includes that the officer "is inefficient". He suggested that the use of this term, in a context where particular types of defiance have been specifically mentioned (see para. (a)), suggests that mere defiant behaviour is not inefficiency within the meaning of the Act.

2. Division 8C of Part III was added to the Act in 1986. It contains ss.76S to 76Z and deals with redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers. The Division is not concerned only with redeployment or retirement for inefficiency; it deals also with retirement because of age or invalidity. But it does introduce into the Act a new power to terminate the employment of an officer on the ground of inefficiency and without the necessity of preferring a charge and conducting an inquiry under Div.6 of Part III.

3. Section 76S contains definitions of some terms used in the Division. Subsections (2) and (3) are presently important. They read:
   

(2) For the purposes of this Division, an officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.

(3) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in subsection (2):

(a) regard shall be had to:

(i) any written selection criteria or job

specifications applicable to those duties;

(ii) any duty statement describing those duties; and

(iii) any written work standards or instructions relating to the manner of performance of those duties; and

(b) regard may be had to:

(i) any written selection criteria or job specifications applicable to similar duties;

(ii) any duty statements describing similar duties; and

(iii) any written work standards or instructions relating to the manner of performance of similar duties."

1. The provision conferring power to retire officers on the ground of inefficiency is s.76W. Relevantly, it provides:
   

"(1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer's classification or retire the officer from the Service.

(2) ...

(3) ...

(4) ...

(5) ...

(6) In this section, "relevant matter", in relation to an officer, means any of the following matters:

(a) that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity;

(b) that an officer is inefficient;

(c) that an officer is not qualified to perform his or her duties;

(d) that an officer is an excess officer."

1. Section 76Z deals with appeals. It reads:
   

"76Z.(1) An officer to whom a notice under section 76W has been given (not being an officer who, before receiving the notice, consented in writing to the giving of the notice) may, within the prescribed period after receiving the notice, appeal to an Appeal Committee against the giving of the notice, on the ground that the reduction in the officer's classification, or the retirement of the officer, as the case requires, would be unreasonable.

(2) Where an officer appeals to an Appeal Committee against the giving of a notice, an Appeal Committee shall hear and determine the appeal and may:

(a) confirm the notice; or

(b) revoke the notice."

"Efficiency"
30. The first, and perhaps major, argument put by Mr Gageler in support of his challenge to the two decisions was that the findings of Mr Glare and the Appeal Committee, respectively, did not establish that his client was "inefficient" within the meaning of s.76S(2). Accordingly, he argued, it was not open to them to retire Mr Preston; the notice of retirement was not authorised by the enactment in pursuance of which it was purported to be made (Administrative Decisions (Judicial Review) Act s.5(1)(d)). Alternatively, Mr Gageler submitted, Mr Glare and the Appeal Committee erred in law in adopting an erroneous test of efficiency (Administrative Decisions (Judicial Review) Act s.5(1)(f)).

1. Mr Gageler pointed out that s.76S(2) defines the notion of inefficiency in terms of failure "to attain or sustain a standard of efficiency". As the word "efficiency" is not defined in the Act, he argued that it is necessary to apply the ordinary meaning of this term. In that regard he drew attention to definitions in two dictionaries. The Macquarie Dictionary relevantly defines "efficiency" as "the fact or quality of being efficient; competency in performance". The word "efficient" is said to mean "adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable". The Shorter Oxford English Dictionary defines "efficiency" by reference to "efficient" and, in relation to persons, gives the meaning of that word as "adequately skilled and active". Mr Gageler said that there is nothing in any of these definitions going to a person's compatibility with, or attitude to, others. According to him, s.76S(2) requires that there be asked two questions, and only two questions: what are the duties the officer is required to perform?; and is the officer competent in the performance of those duties? The duties that Mr Preston had to perform were those set out in the job specification, Mr Gageler submitted; and it was conceded that he was competent to perform them all. Accordingly, he could not properly be adjudged inefficient. The respondents did not look to the applicant's standard of performance, counsel said, but to his attitude; nobody doubted that he could perform the duties of a court counsellor at an acceptable level and he had performed those duties at an acceptable level during the assessment period. Mr Gageler said that both Mr Glare and the Appeal Committee adopted an incorrect test of efficiency; each of them found inefficiency while accepting that the applicant had the knowledge, skill and industry necessary for a performance of his duties. They erred in considering the applicant's attitude rather than his performance of his duties and in considering the efficiency of the organisation (the Family Court) rather than the efficiency of the individual officer. He said that, in taking this course, each of the respondents failed to take into account the job specification applicable to the applicant's position.

2. I do not know whether it is correct to say that Mr Preston performed his duties at an acceptable level during the assessment period. Neither Mr Glare nor the Appeal Committee made a finding on that point. But the more critical aspect of Mr Gageler's argument is his exclusion of the matter of attitude from consideration of an officer's efficiency. Ms Henderson submitted that this is wrong. She criticised Mr Gageler's reliance on dictionary definitions, pointing out that the statute itself contains guidance as to how efficiency is to be assessed. In particular, she noted that s.76S(3) requires that, in determining whether an officer has failed to attain or sustain the requisite standard of efficiency, regard be had to selection criteria. Ms Henderson drew attention to the "important" personal qualities identified for Mr Preston's position, especially "Ability to ... be part of a professional team". It follows, on her argument, that an attitude towards others that impedes a court counsellor's ability to be part of a professional team is a matter relevant to the assessment of that officer's efficiency. According to Ms Henderson, the critical question was whether Mr Preston's attitude caused him to fail to attain or sustain the standard of efficiency reasonably required of a person in his position. Ms Henderson said that this was a factual issue that was concluded against the applicant by the findings of Mr Glare and the Appeal Committee.

3. I think that the argument put by Ms Henderson on this aspect of the case is correct. The statute is intended to be given practical operation. An officer's standard of performance cannot be considered in the abstract. It is not enough that he/she have adequate knowledge, skill and industry. Efficiency is a concept concerned with the application of resources to the achievement of results; in this case the application of the knowledge, skill and industry of an officer to the performance of the tasks committed to him/her. The performance of tasks may be adversely affected by a defiant or obstructive attitude, however knowledgeable, skillful and industrious the officer may be, especially if the particular position is one requiring co-operation between two or more people.

4. Whatever the meaning of "inefficient" in s.56, a matter I leave open, it is clear from s.76S(3) that an officer's efficiency, for the purpose of Div.8C of Part III, must be assessed in the light of the relevant job specification and selection criteria. The job specification for the position of court counsellor refers to the occupant of the position being "part of a counselling team", the duties being performed "under the supervision of" a more senior officer. And, as Ms Henderson emphasised, capacity to be part of a professional team and to accept supervision was identified as an important personal quality in the selection criteria. At least in relation to this position, attitude is important.

5. I also agree with Ms Henderson that it is wrong to say that, in determining the issue of efficiency under s.76S, a decision maker must disregard the effect of the officer's conduct on the efficiency of the organisation in which he/she is employed. The only reason for seeking individual efficiency is to improve the organisation's efficiency. If a particular officer's productive characteristics are outweighed by the damaging effect of his/her behaviour on the organisation's productivity or efficiency, it would be open to a decision maker to find that the officer has failed to attain or sustain a reasonable standard of efficiency.

6. In holding that an officer's attitude may constitute a failure to attain or sustain a reasonable standard of efficiency, I wish to emphasise that this can only be the case where that attitude seriously affects the officer's work performance or the efficiency of the employer organisation. It is not enough that the officer holds unorthodox, even idiosyncratic, opinions or that those opinions are critical of superior officers. It is not enough that the officer has expressed those opinions, even in strong terms, and that this has caused hurt or annoyance. There is a place in every large organisation for "stirrers" who question established practices and attitudes; it is often through the activities of such people that organisations become more effective. The Appeal Committee made this point, in para. 39(3) of its reasons, when it said that Mr Preston's criticisms of the Case Management Guidelines "while irritating to some Family Court staff, if harnessed in the right way, could have been beneficial to the Family Court".

Reasonable apprehension of bias
37. Mr Gageler argued that, if it was open to Mr Glare to find inefficiency, his decision was nonetheless vitiated by Ms Cooke's membership of the assessment committee that advised him. He said that, as she had been involved in the events giving rise to the assessment, her appointment to that committee represented a breach of the rules of natural justice (Administrative Decisions (Judicial Review) Act s.5(1)(a)); her presence on the committee introduced into the decision making process a reasonable apprehension of bias.

1. Mr Gageler was unable to cite authority for the proposition that it is a breach of the rules of natural justice for a statutory decision maker to receive advice from a person having an earlier involvement in the issue and who has formed an opinion concerning its merits. Such a proposition would have far-reaching effects. There are many situations in which statutory decision makers receive advice, including recommendations, from individual officers or committees. In most cases the very reason these people give advice is their prior involvement in the matter. They have information and opinions that may assist the decision maker. Inevitably, they will have views about the merits. The decision maker may receive conflicting advice from different people. He/she may choose what advice (if any) to accept.

2. No doubt it is true, in the generality of cases, that the decision maker himself/herself must come to the matter with an open mind. So it is desirable, if not essential, for the decision maker to be a person not previously involved. But there is no reason, in point of principle, to extend this principle to people having a merely advisory role.

3. In any event, even if Mr Gageler's fundamental proposition is sound, Ms Henderson provided two answers to its application in this case.

4. First, it is now too late for Mr Preston to raise this objection. He knew of Ms Cooke's appointment to the assessment committee in April. At that time he was aware of her decision not to release his report on the "K" case; he had been so informed in a memo dated 17 January. Yet he made no protest about her appointment. In Vakauta v Kelly (1989) 63 ALJR 610 at 611 Brennan, Deane and Gaudron JJ pointed out that a litigant apprehending bias in the decision maker:
   

"is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object".

1. These remarks were made in connection with a case where the appellant was legally represented. So far as appears, Mr Preston was not in receipt of legal advice in April 1992. But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No.12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver. In Wentworth v Rogers the Court of Appeal obviously considered that Ms Wentworth had demonstrated that she had the requisite knowledge of her rights and the capacity to take an objection open to her. I think the same comment may be made about Mr Preston.

2. The second answer to Mr Gageler's fundamental proposition (if sound) is that it disregards the appeal. In Calvin v Carr (1980) AC 574 one of the issues the Judicial Committee of the Privy Council had to consider was the effect of a denial of natural justice at first instance (a stewards' inquiry held pursuant to the rules of a racing club) where there had been a fairly conducted appeal (to the club committee) at which the issues were canvassed de novo and new evidence received. The appellant contended that the stewards' denial of natural justice was not cured by the appeal proceedings. The Judicial Committee disagreed.

3. The Committee's advice was read by Lord Wilberforce. He dealt with this issue at 591-597. At 592 his Lordship disclaimed any absolute rule. But he identified some typical situations. At one extreme were:
   

"cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned."

1. At the other extreme, Lord Wilberforce said, were cases:
   

"where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc.) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage."

At 593 Lord Wilberforce referred to an intermediate class of cases:

"In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it

had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision.

These are all matters (and no doubt there are others) which the court must consider."

1. As these extracts make clear, Lord Wilberforce was considering the problem in the contractual context of a tribunal exercising authority pursuant to rules accepted by members on joining the club. But nothing turns on this. In his discussion of the decided cases, Lord Wilberforce made no distinction between decisions pursuant to contractual jurisdiction and those stemming from a statute. He noted, in particular, the decision of the High Court in Twist v Randwick Municipal Council (1977) 51 ALJR 193. That case involved a statutory discretion whereby a local council could require the demolition of a building. The statute conferred a right of appeal to a court. Lord Wilberforce described as "close to their Lordship's views" this passage in the reasons of Mason J at 196-197:
   

"Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness.

The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have 'cured' a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases - notably by the Privy Council in De Verteuil v. Knaggs, (1918) AC 557; Pillai v Singapore City Council, (1968) 1 WLR 1278, at p 1286; and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission (1966), 56 DLR (2d) 585 and King v. University of Saskatchewan (1969), 6 DLR (3d) 120; cf. Denton v Auckland City,

(1969) NZLR 256 and Leary v. National Union of Vehicle Builders,

(1970) 3 WLR 434 where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal."

1. It seems to me that the circumstances referred to by Mason J in Twist apply to the present case. By appealing against it, Mr Preston elected to treat Mr Glare's decision as legally valid. In taking that course, he acquired the opportunity to canvass the whole of the circumstances of the case (including the role played by Ms Cooke in Mr Glare's decision) and to have the opinion of an independent, multi-member committee upon the reasonableness of that decision. His appeal was heard de novo. Mr Preston was not confined to the material considered by Mr Glare. He was entitled to put new evidence and submissions to the committee; and he did so. The matter of "public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business" applies as much to a decision about the retirement of a public servant as it does to a building demolition order.

2. In connection with this issue, Mr Gageler referred to the decision of Neaves J in Inglis v Bateson (1990) 99 ALR 149. That decision concerned notices of motion whereby the respondents to two applications under the Administrative Decisions (Judicial Review) Act applied, under s.10(2)(b)(ii) of that Act, for the applications to be summarily dismissed. One principal proceeding attacked the decision of Bateson to retire the applicant. The other proceeding concerned two decisions of the Merit Protection and Review Agency refusing, in effect, to intervene on the applicant's behalf. The respondents argued that the applications should be summarily dismissed because s.76Z of the Public Service Act provided "adequate provision" for review of the challenged decisions. Neaves J dismissed the notices of motion, his reason being that s.76Z gave a right of appeal to an Appeal Committee only on the ground of unreasonableness. He said at 164-165:
   

"The legislation, however, does not confer on a redeployment and retirement appeal committee a general power to consider whether or not, in all the circumstances, the officer should be reduced in classification or retired. It is not sufficient to warrant the committee revoking a notice given under s.76W that it has reached a different conclusion from that reached by the Secretary. It may revoke such a notice if, and only if, it reaches the conclusion, on the material before it, that the reduction in classification or retirement, as the case may be, 'would be unreasonable'. Further, the committee's power is limited to confirming or revoking the notice given by the Secretary. The committee may not, for example, in a case where the appeal is from the giving of a notice that the officer be retired from the Australian public service, direct that, in lieu of such retirement, the officer be reduced in classification. There may be other limitations upon the role of a redeployment and retirement appeal committee but that aspect of the matter need not now be considered. In the light of these considerations, it cannot, in my opinion, properly be said that the appeal for which s.76Z of the Public Service Act provides is a full and comprehensive appeal. Nor, in my view, having regard to the grounds upon which the applicant seeks to challenge the legal effectiveness of the notice given to him by Mr Bateson, can it properly be said that, in the circumstances of this case, s.76Z makes adequate provision within the meaning of s.10(2)(b)(ii) of the Judicial Review Act, for the review of the decision embodied in that notice."

Neaves J went on to refer to the decision of Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 and my decision in Reid v Australian Telecommunications Commission (1988) 14 ALD 554. In each of those cases it was held that there had been a denial of natural justice in the original decision to retire the applicant and that this denial was not "cured" by the fact that the employee sought review of the decision by a Review Tribunal. Central to each decision was the view that the doctrine of "curing" depended upon two circumstances: a full hearing of the case on review with an entitlement to present additional evidence, and that the reviewing tribunal has power to substitute its own decision for that of the original decision maker. Burchett J and I each held that the doctrine of "curing" did not apply to an appeal to the Telecom Review Tribunal because that body had no power to make a binding decision; it merely made a recommendation to the Commission, the primary decision maker. In Colpitts at 67 Burchett J said that the circumstances of that case fell within the situation discussed in Calvin v Carr. The regulations "provided a less than perfect appeal process"; consequently, the existence of a right of appeal to the Review Tribunal did not cure the denial of natural justice at first instance. In Reid I expressed the gist of my view at 556:

"A decision whose implementation depends upon the concurrence of the body who made the primary decision runs the risk of being rejected for reasons affected by the initial defect."

1. I do not disagree with the decision of Neaves J in Inglis v Bateson. With respect, his Honour was clearly correct in saying that the ambit of the appeal was limited to the ground stipulated in s.76Z. Although submissions of law may be put to an Appeal Committee in support of an argument that the retirement of an officer would be unreasonable, having regard to the composition and procedures of the committee this would not normally be a satisfactory course. Review by an Appeal Committee is not an adequate substitute for a right of appeal to a court on a relevant matter of law. I therefore agree with Neaves J that the existence of a right of appeal to an Appeal Committee would not usually be an "adequate provision" enlivening s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act.

2. I doubt that his Honour intended to say more than this in the passage I have quoted. He certainly did not suggest that an Appeal Committee is confined to the material before the original decision maker, that in this sense the review is not a full appeal. At 164 he specifically said:
   

"That is not to say, however, that the Redeployment and Retirement Appeal Committee is, in determining that ground of appeal, limited to the material that was before the primary decision-maker. Clearly that was not the Parliament's intention."

1. If Neaves J intended to go further than this, and to say that the appeal under s.76Z is not an effective appeal on the merits, I would respectfully disagree. It is true that the Appeal Committee is limited to confirming or revoking the Secretary's notice. It has no power to substitute a less onerous disciplinary order. But this is a limitation favourable to the officer. If the Appeal Committee thinks the Secretary's decision too harsh, having regard to the evidence before it (and whether or not it was too harsh on the evidence before the Secretary), it must conclude that the reduction in classification or retirement, as the case may be, would be unreasonable. It must set aside the Secretary's notice, leaving the officer unpenalised.

2. I do not think that any effective limitation on the ambit of the appeal arises from the circumstance that the issue is couched in terms of unreasonableness. In this context, the word "unreasonable" does not mean Wednesbury unreasonableness; that is, that the primary decision is "so unreasonable that no reasonable authority could ever have come to it": see Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 at 230. To import that concept into s.76Z would be to leave an officer without remedy in a case where the Appeal Committee considered that it would be wrong to require the officer's retirement or reduction in classification, on the materials before the Committee, but where it could not say that, on the materials before the Secretary, his/her decision was one that a reasonable person could not reach. It cannot be supposed that Parliament intended that result. In this context, the word "unreasonable" must be given its ordinary English meaning. It is a term of wide import. It is certainly wide enough to permit consideration of the question whether the officer has been shown to be inefficient. It would plainly be unreasonable to retire on the ground of inefficiency an officer not shown to be inefficient.

3. In my opinion, there is nothing in the bias point. Even if, contrary to my view, Ms Cooke's presence on the assessment committee gave rise to a breach of the rules of natural justice, that breach was both waived by the applicant and cured by the appeal.

Onus of proof
54. Finally, Mr Gageler submitted that the Appeal Committee erred in law in casting onto Mr Preston the onus of proving that he was efficient. He referred to para.38 of the committee's reasons, set out above.

1. I do not think that the committee placed a burden of proof on Mr Preston. The second sentence of para. 38 amounted to a finding that, although Mr Preston's behaviour did not constitute a pattern of wilful disobedience, his attitude to supervision was intractable. This was a finding purporting to be based on the evidence, considered as a whole. Mr Gageler did not submit that there is no evidence to support that finding. Giving "efficiency" the meaning I ascribe to it, this amounted to a finding of inefficiency. The committee then commented that they saw "no evidence of a change, or capacity to change, this attitude pattern". The possibility of a change in attitude was relevant to the question whether it would be unreasonable to insist on Mr Preston's retirement. If there was evidence of a change, or capacity to change, it might have been appropriate to set aside Mr Glare's notice and give Mr Preston the chance to implement his changed attitude. Of course, evidence of a change, or capacity to change, might have been placed before the Appeal Committee by Mr Preston; indeed this would be its most likely source. However, to say that there is in fact no evidence of change or capacity for change is not to lay upon Mr Preston any onus of proof. It is simply to say that, past inefficiency having been proved, there is no evidence, from any party, to suggest that the position would be better in the future than in the past; with the consequence that the theoretical possibility of change is not a reason for concluding that it would be unreasonable to confirm Mr Glare's notice.

2. None of the grounds of challenge to the decisions is made good. The Application must be dismissed with costs.