Stenzel, Bonke & Lucas v McGaw

[1998] QSC 146

IN THE SUPREME COURT

OF QUEENSLAND

No.2375 of 1998

Brisbane

Before             Williams J

[Stenzel, Bonke & Lucas v McGaw]

BETWEEN:

ANNE MARGARET STENZEL,
DINA MAREE BONKE AND DAVID ALAN LUCAS

Applicants

AND:

IAN McGAW

Respondent

JUDGMENT - WILLIAMS J

Judgment delivered 28 July 1998

This is an application seeking a review, pursuant to the Judicial Review Act 1991, of a decision made by the respondent, as delegate of the Public Service Commissioner hearing an appeal pursuant to Part 7 of the Public Service Act 1996. The three present applicants were parties to that appeal.

In broad terms in early 1997 the Department of Training and Industrial Relations advertised for applications for a number of vacancies for the position of Executive Officer with a classification AO6. The three present applicants applied for that position and, together with others, were successful in being appointed to the vacancies. W B Joycey asserted that he was an applicant for that position who was unsuccessful and in consequence appealed pursuant to Part 7 of the Public Service Act.  The decision appointing the present applicants to the position in question was a “decision to promote an officer” within s.94(1)(c) of that Act.  In consequence s.96(c) applied and Joycey only had locus standi to appeal if he was “an officer aggrieved by the decision who was entitled to appeal under a directive of the Commissioner”.  Cl.1(2)(b) of the relevant directive provided that an officer entitled to appeal was one whose “application for the vacancy must have been received before the deadline for the receipt of applications.”  The respondent concluded that Joycey satisfied that test and proceeded to hear the appeal.

The appeal lodged by Joycey raised questions as to the selection process, and also a merits argument. The respondent determined only the issues relevant to the selection process.  In his decision handed down on 13 February 1998 he concluded that the selection process was flawed and that in consequence the appointments to the vacancies should be set aside.  In consequence there was no hearing of the merits argument.

The present applicants (and others) contended that Joycey had not lodged his initial application within due time and in consequence asserted that he did not have locus standi to be an appellant.  That issue was specifically addressed by the respondent in supplementary reasons published on 3 March 1998.  From those reasons it can be concluded that the respondent directed his mind to the standing of Joycey to initiate the appeal prior to delivering his reasons on 13 February 1998; his reasons of 3 March 1998 merely recorded why he had reached the conclusion that Joycey had made a timely application for the vacant position.

It is with respect to that decision that the applicants seek a statutory order of review. The grounds specified in s.21(2) of the Judicial Review Act on which the applicants  rely are either that the decision was contrary to law, or that there was no evidence justifying the making of that decision.

It is now necessary to refer to the relevant facts in a little more detail.

The vacancies in question were duly advertised in the Government Gazette; the reference number was LB108/97 and the closing date for applications 17 February 1997.  The Department made available a document relating to the vacancies and applications with respect thereto; it was entitled “Position Description”.  Relevantly on the front page thereof the following appeared:

“Your application for this position must specifically address each of the selection criteria listed in Section B of this Position Description.

Short listing and selection will be based upon how well you meet these selection criteria.

The application should also include a curriculum vitae.  (See Section C - “Other Information”).

Succinctness of application will be appreciated.”

There follows a number of pages setting out specifications of the position to be filled.  Under the heading “Selection Criteria” it is stated that there were no “mandatory qualifications”.  The last paragraph was in these terms:

“Applications (one (1) original plus two (2) copies of the complete document) should be forwarded to ... ”.

There is no statutory provision or regulation defining what is an application for a vacancy in the Public Service.  There is no form of application which by law must be used in order to make such an application.  The specific document to which I have just referred entitled “Position Description” did not indicate - otherwise than as may be inferred from what I have quoted above - that any particular form of application was required.

The Department of Training and Industrial Relations has published a document entitled “Applying for Vacancies”  which is obviously intended to provide some guidance on that topic.  It states, as does the “Position Description” document quoted above, that the “application should address all of the selection criteria”.  There is then a page headed “The Application”.  It commences by saying that: “Applicants should complete an “Application for Advertised Position” Form.”  Later it says that “Applicants should also provide a succinct Curriculum Vitae or Résumé containing personal details ... and comprehensive employment and educational information ...”.  It also contains, inter alia, the following relevant observations:

“In compiling your application you should ... give complete information.  The application should speak for itself so that you are not straining to get across your full story at the time of  the interview and neglect important facts.  Your application is a tool to sell yourself and your skills and make the first step in gaining an interview. ... Your application will have more chance of attracting interest from the Selection Committee if it is well presented, succinct and relevant.  It is often a good idea to ask someone you trust and respect to peruse the finished product for relevance, expression and clarity. ... To assist the Department in compiling data on the scope of its applicant pools, applicants are invited to indicate on the “Application for Advertised Position” form any information related to membership of an identified EEO group which may be relevant.”

Joycey and the other applicants for the position in question made use of a one page document headed “Application for Advertised Position”, undoubtedly the document referred to in the brochure “Applying for Vacancies”.  It is divided into 3 sections, delineated by 3 rectangles on the one page.  Within the first and largest rectangle the following detail is required to be stated: full name, telephone numbers, address, vacancy reference number, closing date, title of advertised position, the section or branch involved, the location of the advertised position, and the date and signature of the applicant.  Within the second rectangle there is provision for information from “Queensland Public Servants only”;  the particulars sought there are of the section, branch, division, and department relative to the applicant’s current appointment.  Within the third rectangle are a number of questions designed to elicit how the applicant became aware of the vacancy.

As already noted that particular form is not prescribed by law; it appears to have been put out by the Department of Training and Industrial Relations for the guidance and assistance of applicants.

Joycey completed all the detail required in the large rectangle and submitted that one page form on 17 February 1997, the closing date for applications.  It was apparently hand delivered to the appropriate officer in the Department. There is a stamp on the document that he submitted acknowledging that it was received by the Department on 17 February 1997.    He did not insert any particulars in either of the other 2 rectangles.

That was the only document submitted by Joycey on that day.  He did not then provide the Department with any document in which he specifically addressed each of the selection criteria listed in the “Position Description” nor did he submit a curriculum vitae.

Each of the present applicants attached many pages to their fully completed form headed “Application for Advertised Position” in which selection criteria were addressed and a curriculum vitae provided.

On 19 February 1997 the Manager of the Human Resource Administration Unit of the Department wrote to Joycey informing him that his “application for the above mentioned position has been received” and along with all the applications had been forwarded to the “Chair of the Selection Committee”.  That letter also stated: “Applicants are selected for interview on the basis of how well their applications address the selection criteria”.

Under cover of a letter dated 22 March 1997 Joycey forwarded material which addressed the selection criteria set out in the “Position Description” and also contained a curriculum vitae.  That letter commenced by saying: “I wish to apply for the position of Executive Officer, AO6, Division of Training Queensland, Brisbane, Reference No. LB108/97”.

It would appear that Joycey was placed on a short list for interview but that is not relevant for present purposes.  It is sufficient to note that he was unsuccessful in obtaining an appointment to one of the vacancies.  Hence his appeal.

The point which was taken on the hearing of the appeal, and which is relevant for present purposes, is whether or not by lodging the document which he did on 17 February 1997 he applied for appointment to the vacancy. If that document constituted an application then he satisfied the statutory requirements to be an appellant pursuant to Part 7 of the Public Service Act; if it was not an application which he lodged on 17 February 1997 then he had no standing to commence that appeal.

The following passages from the decision of the respondent published on 3 March 1998 are relevant for present purposes:

“The appointees base their claim on their belief that the form of application for the positions in question which was lodged by the appellant on or before the due closing date for applications did not constitute an application for the positions at issue, for the reason that it did not address specifically the selection criteria for the position, and accordingly, that the Tribunal had erred in accepting it as such and allowing the appellant a right of appeal.  The appointees have sought and the Tribunal has agreed to provide, the reasons for its decision that the appellant met the threshold requirement for a right of appeal, as specified in s.1(2)(b) of the Public Service Commissioner’s Appeals Directive, which states that in order for an officer to have a right of appeal “the officer’s application for the vacancy must have been received before the deadline for the receipt of applications”. ... The Tribunal was aware from the documents before it at the time that active consideration was being given to the matter of jurisdiction, that the appellant had lodged initially a single page application for the various positions, which application was supplemented with further material some considerable time later, but prior to the selection process proceeding.  From the point of view of determining the appellant’s eligibility to be regarded by the Tribunal as an appellant, the extent and/or the content of the appellant’s application was not a relevant consideration. ... When addressing the question of jurisdiction the Tribunal is only concerned with determining whether the eligibility requirements as specified in the governing legislation and Public Service Commissioner’s  Directive have been satisfied.

In the instant case the Tribunal’s finding that the appellant had satisfied the tests set out by s.1(2)(b) of the Public Service Commissioner’s Appeals Directive and consequently that the appellant had a right of appeal against the aforementioned appointment was supported by the following considerations:

(a)the fact that nowhere in the Public Service Act 1996; the Public Service Regulation 1997; or the Public Service Commissioner’s Appeals Directive is the term “application” defined;

(b)the fact that nowhere in the aforementioned instruments does it prescribe the form that applications for a position are to take;

(c)the fact that nowhere in the aforementioned instruments are applicants prohibited from supplementing their applications after the specified closing date; and

(d)the meanings assigned to the words “applicant”, “application”, and “apply” as provided in the Concise Oxford Dictionary containing nothing that would suggest that there is any one thing that should be taken as constituting an application.

In the absence of statutory requirement or other specific guidance to limit its judgment on what constitutes an application for an advertised vacancy in the Queensland Public Sector, for the purposes of establishing a right of appeal, the Tribunal has consistently determined that an inclusive approach should be taken and in so doing that the widest possible interpretation should be given to the term “application”. ...

... the Tribunal requires only to be satisfied that an applicant has by some means clearly notified his or her desire to be considered for appointment of the vacant position at issue to the relevant authority by the specified closing date.  In the instant case it was evident to the Tribunal that the appellant did clearly notify his desire to be considered for appointment to the positions under dispute to the relevant authority by the specified closing date.  The Tribunal reiterates its view that matters such as the extent and/or quality of that notification are not relevant considerations at the point of determining eligibility to appeal and subsequent thereto, matters relating to the efficiency and procedural fairness of the selection process.

... The Tribunal noted that at no stage had the agency suggested to the appellant that his notification of  a desire to be considered for appointment to the position under dispute was lacking in clarity of purpose.  The Tribunal also noted that at no stage had the agency suggested to the appellant that his notification did not constitute an application.  Additionally, the Tribunal noted that at no stage had the agency advised the appellant that, in its opinion, the lodging of supplementary information had the effect of making him a “late applicant” and therefore an officer without the right of appeal.”

I cannot find any error of law in the reasoning of the respondent and there was clear evidence upon which the decision was based.

In courts and tribunals a distinction is generally recognised between a formal application and the material on which the application is based; but even in that context it is not uncommon to refer to both the initiating document and the supporting material as the application.  The New Shorter Oxford English Dictionary relevantly defines “application” as “the making of a request, especially of a formal nature”.

The document delivered by Joycey to the Department on 17 February 1997 was clearly by its terms an application.  It was so headed, and it fully and clearly identified the vacancy with respect to which the application was lodged.  It clearly notified the Department of his desire to be considered to fill the vacancy.

The applicant’s contention is that for there to be an application in the present circumstances the material had to, in addition to the requirements of the Department’s form, address the selection criteria and contain a curriculum vitae.  Whilst the supply of that information would generally be critical to the successful processing of the application,  it is difficult to see why its inclusion was necessary before there was an application.  Failure to address one of a number of selection criteria surely could not mean that in law there was no application.

It may well be that if nothing more was received by those responsible for making the decision as to filling the vacancy Joycey’s application would have been peremptorily rejected on the merits.  But that does not mean that there was no application.

The applicants also argued that the form lodged by Joycey on 17 February did not constitute an application because it was not fully completed; in particular details of information from Queensland Public Servants were not provided.  There is no basis for concluding that the failure to provide that information had the consequence that the balance of the document was not in law an application.

As  there is no definition of  “application” for present purposes the ordinary, common sense meaning should be applied.  The document in question by its terms constituted an application and it should be regarded as such for purposes of the appeal provisions of the Public Service Act.

It was primarily for those responsible for making the decision to determine whether or not supplementary material from Joycey would be received.  The letter of 19 June 1998 from the Department to the solicitors for the present applicants indicates that there was “a widespread and accepted practice” throughout the Queensland Public Service of accepting the cover sheet as an application provided it was supplemented by additional information “within a couple of days (generally before the applications are sent to the nominated chair person).”  All such issues raise questions of fact and discretion for consideration and determination by the appropriate decision maker.  Such considerations cannot affect the determination of the question whether or not in law the single page document initially lodged constituted an application. 

Once the decision maker decided to accept the late submission of material addressing the selection criteria, the application could be considered on the merits.  In the light of that later material the appeal tribunal could determine whether or not an appellant had an arguable case - a precondition for the hearing of an appeal.

Having regard to the provisions of the Public Service Act, and in particular ss.23 and 24 thereof, no narrow, pedantic construction should be placed on provisions conferring benefits on public servants.  Such an approach is exemplified by the reasoning of the New South Wales Court of Appeal in Cole v Director-General of Department of Youth and Community Services [1987] 7 NSW LR 541.  The relevant question for the respondent was whether or not Joycey had lodged an application on 17 February 1997 and that had to be approached applying practical common sense considerations given the absence of any legislative definition.

For the reasons given I am of the view that the respondent arrived at the correct conclusion.

The application for a statutory order of review should be dismissed with costs.