Quinn, N. v Allen, R.N - [1988] FCA 14

Re: NEIL QUINN
And: ROBERT NORMAN ALLEN
No. ACT G63 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - judicial review - Commonwealth Teaching Service - Creation of position within a component of that Service - Transfer of officer holding a position in that component to the newly created position - Whether transferred officer is "a person who is aggrieved" by the decisions to create position and effect his transfer - Whether decision to create position an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the power was exercised for a purpose other than a purpose for which the power was conferred.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(e) and 5(2)(c)

Commonwealth Teaching Service Act 1972 (Cth), ss.6, 7, 19, 20, 25, 27

HEARING

CANBERRA

#DATE 1:2:1988

Counsel for the applicant: Mr T.J. Higgins, Q.C. and Mr R.C. Refshauge

Solicitor for the applicant: Macphillamy Cummins & Gibson

Counsel for the respondent: Mr C.M. Erskine

Solicitor for the respondent: Australian Government Solicitor

ORDER

The decisions made by the respondent to create position number 4210, Teacher (TAFE) Band 3, Canberra College of Technical and Further Education and to transfer the applicant to that position be set aside.

It be declared that the applicant remains the occupant of position number 4201, Teacher, Band 3 (TAFE), Head of School of Applied Science, Canberra College of Technical and Further Education.

It be declared that the provisional promotion of Keith Pantlin to the said position number 4201, which was notified in Commonwealth of Australia Gazette No. PS 18 of 31 May 1987, is ineffectual.

The respondent be restrained from confirming the said provisional promotion or from promoting to the said position number 4201 any successful appellant against the said provisional promotion.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") by Neil Quinn ("the applicant") for an order of review in respect of two decisions made by Robert Norman Allen ("the respondent") in his capacity as the "relevant authority" in relation to the Australian Capital Territory Technical and Further Education component of the Commonwealth Teaching Service established under the Commonwealth Teaching Service Act 1972 (Cth) ("the Act"). The two decisions may be identified as -

(a) the decision to create position number 4210, Teacher (TAFE) Band 3, Canberra College of Technical and Further Education; and

(b) the decision to transfer the applicant to the position so created.

The object of the Act, as set out in s.6, is to provide for the employment of persons who are to be made available for the performance of teaching duties in Commonwealth schools and certain other schools. "Commonwealth school" is defined in sub-s.4(1) to…

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 Quinn, N. v Allen, R.N

Details

AGLC: Quinn, N. v. Allen, R.N. [1988] FCA 14
Case: [1988] FCA 14
Decision Date: 01 FEBRUARY 1988

CaseChat Overview and Summary

Quinn, N. initiated legal proceedings against Allen, R.N., a representative of the Commonwealth Teaching Service, in the Federal Court of Australia. The crux of the dispute lay in the creation of a new teaching position within the Canberra College of Technical and Further Education, a component of the Commonwealth Teaching Service, and the subsequent transfer of the applicant to this newly created role. Quinn, who had been holding a different teaching position, contested the legality of both the creation of the new position and his transfer to it, arguing that these actions were unlawful and that he was aggrieved by them.

The court was tasked with determining whether the transferred officer, Quinn, qualified as "a person who is aggrieved" by the decisions in question and whether the decision to create the position represented an improper exercise of the statutory power. Specifically, the court had to assess if the power to create the new position was exercised for a purpose other than that for which it was granted.

In its decision, the court found that Quinn indeed qualified as a person who was aggrieved by the decisions made by the respondent. The court further ruled that the decision to create the position was an improper exercise of the power conferred by the relevant enactment, as it was used for a purpose other than that intended. Consequently, the court set aside the decisions to create the new teaching position and to transfer Quinn to it. It declared that Quinn remained the occupant of his original position and that the provisional promotion of Keith Pantlin to Quinn's former position was ineffectual. The respondent was also restrained from confirming Pantlin's provisional promotion or promoting any other successful appellant against the said provisional promotion. Finally, the court ordered the respondent to pay Quinn's costs of the application.

Orders

Orders of the court

The decisions made by the respondent to create position number 4210, Teacher (TAFE) Band 3, Canberra College of Technical and Further Education and to transfer the applicant to that position be set aside.

It be declared that the applicant remains the occupant of position number 4201, Teacher, Band 3 (TAFE), Head of School of Applied Science, Canberra College of Technical and Further Education.

It be declared that the provisional promotion of Keith Pantlin to the said position number 4201, which was notified in Commonwealth of Australia Gazette No. PS 18 of 31 May 1987, is ineffectual.

The respondent be restrained from confirming the said provisional promotion or from promoting to the said position number 4201 any successful appellant against the said provisional promotion.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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