Szelagowicz, W.M. v Stocker, J.W.

[1993] FCA 765

JUmIENT No. .a ...*..... 76s- 93 . ,..*,, , , I,

NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

No. NG 396 of 1993

GENERAL DIVISION 1

BETWEEN:	W O J C I E C H	M A R I A N
SZELAGOWICZ
Applicant

AND :	JOHN W STOCKER First Respondent and
BRIAN G GIBBS, GERALD
NEIL HADDAD and W I L L I A M H A R K TUNNINGLEY
Second Respondents

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	8 OCTOBER 1993

MINUTES OF ORDER

Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also
Order 37 rule 2(3)].

THE COURT ORDERS THAT:

1. The Application be dismissed.

IN TRE FEDERAL COURT OF AUSTRAtIA )

1 No. NG 396 of 1993

NEW SOUI'E WALES DISTRICT REGISTRY )

1

GE~RAI. DIVISION i

BETWEEN :	WOJCIECH MARIAN SZELAGOWICZ
Applicant
AND :	JOHN W STOCKER
First Respondent
and
BRIAN G GIBBS, GERAI;D NEIL HADDAD and W I L L I A M M A R K TDNNINGLEY
Second Respondents

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	8 OCTOBER 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application under the Administrative Decisions (Judicial Review) Act 1977 challenging the decision

respondents, Brian Gibbs, Gerald Neil Haddad and William Mark	of a disciplinary appeals committee constituted by the second
Tunningly. The committee decided to recommend to the first respondent, John Wilcox Stocker, the dismissal of the applicant, Wojciech Marian Szelagowicz, from his position as an employee of the Commonwealth Scientific and Industrial Research Organisation ("CSIRO").
A number of grounds of challenge were set out in the amended application, but only two matters have been argued. The first of these is an allegation that the second respondents failed to take into account a relevant consideration; namely, that those responsible for the applicant's supervision at CSIRO had every reason to dislike him and waht him out of the organisation and behaved towards him in a way that was suggestive of bad feeling or bias.
Essentially this submission involves an attack upon the merit of the decision made by the second respondents to
accept the evidence given in support of the decision under
review; namely, a decision by Dr Frater to recommend the
applicant's dismissal. The submission does not concern a
subject matter left out of account. Rather, it goes to the
quality of the judgment that was made. I think there is a
question whether such a case falls within the category of -
error referred to in s.5(2)(b) of the Administrative Decisions JJudicial Review) Act as being an improper exercise of a power- and therefore reviewable under s.5(l)(e) of that Act.
However, assuming that it is legitimate to attack the decision in this way, it seems to me the attack must fail. Counsel for the applicant took me to the transcript of the committee's proceedings. I need not set out the passages that were read. It is enough to say that they demonstrate that the committee was aware that there was a background of ill feeling between the applicant, on the one hand, and some other CSIRO

officers on the other. The committee did not express itself about the circumstances of the ill feeling. It was not necessary for it to do so. But it must have been obvious to the members of the committee that it was important to scrutinise carefully the evidence concerning the applicant that was given by the three CSIRO officers who were called. The committee, in its reasons, expressly stated that they accepted the evidence of the three witnesses, notwithstanding denials of some important parts of their evidence by the applicant. I see no basis for assuming that the committee members failed to take into account the circumstances out of which the charges arose and the personal relationships between the parties, when they made their decision to accept that evidence. It is not to be assumed that a decision maker has failed to take into account something which is in fact before him or her. A person asserting such a failure bears the onus of demonstration.

The second ground raised by the applicant is an

alleged breach of the committee's duty to accord to him

procedural fairness. There is no question that the committee	had this duty; the question is whether it was breached. A
number of submissions are put under this heading. They reduce, I think, to three topics.
The first matter concerns representation of the applicant. The evidence contains the correspondence that
preceded the hearing. It appears that the applicant was given
a copy of a manual which dealt, amongst other things, with i
disciplinary proceedings. This manual included the following

i

para. 5.7A.2: ! ,

"As the investigation of an appeal will be

conducted with the minimum of formality, legal

representation should not be necessary. Where the	I
appellant chooses to be represented by a lawyer,	I
the Organisation may be similarly represented. The
appellant may be accompanied and represented by a
staff association representative and/or a colleague
officer. CSIRO will normally be represented by a	i
senior officer (e.g. an advocate from the
Industrial Relations Section, Human Resources	. !
Branch) .

Counsel for the applicant submits that an affected person would reasonably read this paragraph as suggesting that	:	.
, , .
, .'
CSIRO is unlikely to be legally represented unless the
appellant chooses to be represented by a lawyer. I accept
that submission. It is true that the paragraph does not	l .
unequivocally state that CSIRO will not be legally represented

unless the appellant takes that course, but I think that a , I

l .

person would read- the paragraph in the suggested way.

Apparently, Mr Szelagowicz so read the paragraph when he was

first aware of it.

By a letter dated 26 March 1993, MS Venslovas, Secretary, Appeals and Grievance, of the Human Resources Branch of CSIRO wrote to Mr Szelagowicz concerning the appeal hearing which had been fixed for 4 May 1993. She set out some information about the location of the hearing and the members of the board. Her letter concluded with a request for information regarding the arrangements that Mr Szelagowicz proposed to make for his representation at the hearing. She also requested:

"notice of the names of the persons you believe should be interviewed by the Committee and any other request you may wish to raise in relation to the hearing."

Szelagowicz apparently read this last paragraph as an indication that, if he supplied the names of people who could provide relevant information, the committee would take steps to ensure their presence. He responded with a letter dated l 9 April which dealt with a number of matters but concluded with the names of four people whom he thought the committee should question. These people included Dr Cooper, the chief of the CSIRO Division of Radio Physics and the person who laid the original complaint against him; Dr Frater, the person who had made the primary decision; an officer of the American Consulate General in Sydney and an officer of the Australian Security Intelligence Organisation. The last two	people had apparently been involved in an earlier incident	resulting from information that Mr Szelagowicz had given
concerning alleged activities of a CSIRO officer.
Apparently nobody took any steps to procure the attendance of those people. On 26 April 1993, only seven days after he wrote his letter to MS Venslovas, Mr Szelagowicz received a letter dated 21 April from MS J. Anderson of the office of the Australian Government Solicitor. This letter stated that the Australian Government Solicitor acted on behalf of Dr Frater concerning Mr Szelagowicz's appeal and that Dr Frater proposed to call Dr John Archer, Dr Neil Barrett and Dr Bob Batchelor as witnesses at the hearing on 4 May. These three persons were officers of CSIRO who had been involved in events the subject of the charges. MS Anderson said:

~ r :

"You will of course be entitled to cross-examine these witnesses. If you propose to call any further persons as witnesses in support of your appeal you will need to make arrangements yourself for those persons to be available at the hearing."

On 27 April, 1993 MS Venslovas wrote a further letter to Mr Szelagowicz referring to her earlier letter and giving further information regarding the hearing. Her letter referred to Mr Szelagowicz's letter of 19 April in which he had said that he would not be legally represented. She mentioned that the Australian Government Solicitor would be providing legal representation for CSIRO. This last statement

was not technically correct; the Australian Government	Solicitor was acting for Dr Frater rather than the
organisation as a whole. Mr Szelagowicz realised this and picked up the point in a response he immediately sent to MS Venslovas. In his letter he referred to the fact that a significant amount of relevant correspondence and papers relating to his case had not been produced to the members of the committee. This reference apparently arose out of the fact that he had received a bundle of documents which Dr Frater proposed to tender at the hearing. He apparently thought the bundle was incomplete. He mentioned one particular document in the letter.
When the hearing commenced on 4 May, Mr Szelagowicz made no application for an adjournment to obtain legal representation, notwithstanding the fact that Dr Frater was represented by a solicitor from the Australian Government Solicitor's office, Mr Howe. He disclosed the reason for this decision in his affidavit filed in this proceeding. In that affidavit he says that, after the correspondence to which I have just referred, he decided to obtain legal advice on a number of matters: first, confirmation of his interpretation of the terms and conditions and the manual with respect to legal representation before the committee; secondly, the director's entitlement to be legally represented, if he was not represented; thirdly, the likely course and outcome of the proceedings if he was unrepresented; and, fourthly, what he should do general1y.h relation to the proceedings.
Mr Szelagowicz contacted the Legal Aid Commission of New South Wales. He was apparently told that the earliest date upon which somebody could see him was 15 May 1993, after the projected hearing date. He thereupon decided not to pursue further the matter of legal representation. He says in his affidavit that he intended, prior to the hearing, to object to the director being legally represented. Apparently, that was still his intention when the hearing started.

However, the Chairman made some comments about the way in which the proceedings would be conducted. These comments caused him to decide not to make application for an adjournment in order to obtain legal representation. No application for an adjournment was made during the hearing.

In relation to this aspect of procedural fairness, counsel for the applicant emphasises the correspondence to which I have referred. It seems to me that, if the manual had been the only information Mr Szelagowicz received, he might have been seriously misled as to what would happen. However, the situation developed in the period of two weeks or so be£ ore the hearing. As he conceded in cross-examination today, Mr Szelagowicz was aware, when he received Miss ~nderson's letter on 26 April, that Dr Frater would be represented by a solicitor; that the named three witnesses would be called; and that, if he wished to present other witnesses, he would have to take steps to ensure their attendance. Mr Szelagowicz is obviously an intelligent man; but notwithstanding the information he had, he took no steps

adjournment. I think it is clear that he made a deliberate	to obtain legal representation, nor to apply for an
decision to represent himself. He knew that, if he could not afford legal representation, he could be accompanied by a colleague. This was set out in the manual. I note that, during the hearing, one of the members of the committee, Dr Haddad, specifically asked Mr Szelagowicz about this. Mr Szelagowicz confirmed that he appreciated that he had this

option; but he said that he had chosen not to take that
course.

Where a person is not legally represented, and the issue is one of substantial importance, the question whether there has been prejudice is of considerable moment. Perhaps it does not require much to persuade a court to find a denial of procedural fairness. But I cannot see any such denial in this case. The decision that Mr Szelagowicz made - to go to the hearing without legal representation, given his knowledge that Dr Frater would be legally represented, and the importance to him of the case - was an unwise one. But the fact that a person knowingly makes an unwise decision does not show denial of procedural fairness.

The second matter relied upon by the applicant relates to documents. As I have said, a bundle of documents was provided in advance of the hearing. Apparently there were 176 pages. Mr Szelagowicz did not have a long time in which-

to read them. But no complaint is made about this; I think

with matters with which he was familiar. As he was then under	reasonably enough, given the fact that all the documents dealt
suspension, but with pay, he would not have lacked time to digest them.
I have mentioned the fact that, in one of his letters, he said that the documents were not complete. At an early stage of the hearing he made a similar complaint.

According to the transcript, this took place only about 15 minutes after the hearing commenced. The bundled documents were tendered, and the Chairman asked M r Szelagowicz whether he had copies of all of them. He replied that some documents had not been included. The Chairman asked Mr Szelagowicz to identify the missing documents, but he was unable to do so. The Chairman then said this:

"Now, if you can, during the course of the day perhaps try and bring to mind what those documents are and make a note of them then I am sure we can ask the organisation to try and locate them and produce them, providing Mr Howe has got no objection to them being tendered to the committee. I do not think we can do any more than that because you do not know what the documents are at the

moment. "

Mr Szelagowicz responded:  "I agree."

-

It is conceded by counsel for Mr Szelagowicz that nobody made any. further reference to the suggested-

insufficiency of documents, at any time; neither during the
day nor during the two weeks which elapsed after the hearing	, .
and before the committee made its decision.	I
I-
The submission put on this matter is that, knowing that Mr Szelagowicz was concerned about missing documents, the Chairman should have again raised the matter and asked Mr Szelagowicz whether he could yet identify the missing documents, or whether he was still concerned. Perhaps this course might have been taken; but I do not think that the Chairman's failure to do so represents lack of procedural fairness . Procedural fairness is about giving people the opportunity to put information before the decision maker. It is not about assisting them to conduct their case.

v

The third matter of complaint relates to the failure of the committee to grant an adjournment at the end of the hearing. The transcript shows that the hearing occupied a full day. Fairly late in the afternoon, Mr Szelagowicz said that he wished to have an adjournment of the hearing so that he could call witnesses. This intimation arose out of an incident that occurred when Mr Howe commenced a cross examination of Mr Szelagowicz, he having made a statement that was apparently treated as evidence in chief. M r Szelagowicz declined to answer the questions, explaining that he did not wish to conclude the case on that day because he wished to bring other witnesses. The Chairman asked him about this. Some discussion ensued. In the course of this discussion, the Chairman said:

picture and I understand what you were saying about	"I mean, you are talking about the so-called big
that but if you wanted to call witnesses today they would have to be - in relation to these proceedings they would have to be in respect of the charges and the decision that has been made. We are not here to look at anything other than the charges and the decision."

Mr Szelagowicz acknowledged that fact and made some statements about the time taken by Canberra in deciding what to do about his appeal. There was some discussion about that

, ~

topic. The Chairman brought the discussion back to the

original subject by asking Mr Szelagowicz to "take us through

once again what relevance you see those witnesses having to

these proceedings". Mr Szelagowicz replied "a lot of	i
evidence". The Chairman asked him to be specific about the
r
1.
matter, because it involved an adjournment and a necessity to reconvene on another occasion. Mr Szelagowicz said he did not wish to annoy the Chairman. The Chairman assured him that he was not doing this; but he said that he wanted to be firm about a suggestion which had significant implications both in cost and time. He said "the main thing is that we need to be
i
satisfied as to the relevance of what you are suggesting".
Mr Szelagowicz replied:	. .

"What sort of relevance when they were suggesting	i'
to me voluntary inefficiency retirement when it has	I

been not proved yet, they were suggesting to me	-	. .
already.	"	!
1
l l

. ' 8 .

This was clearly a different subject.	It apparently	I
, '

the appeal, as an alternative to the course being pursued.

related to a suggestion made not long before the hearing of

There was further discussion about that matter. The Chairman

then tried once again. He asked Mr Szelagowicz to "outline	, ,
for us the relevance of their evidence if they are brought". The response he obtained was "I've told already, I didn't get answer from my letter in regard to the witnesses which I was suggesting". The Chairman said:	I '

"Yes, but I am talking about relevance, I am not talking about availability or response from the secretary of the Appeals Committee, I am talking about - I am trying to find out from you what is the - so that we can make a proper judgment about the calling of these witnesses. I am trying to find out from you, what is the relevance as you see it, of their evidence."

Szelagowicz replied:

"For example, Mr Chairman, I can tell you. If the chief of division is using my feelings to his some sort of excitement, I think it's not good. If he is suggesting to me that it's not secret that you have strong feeling, but I understand you, I do not understand him at the moment of his words, and he had opportunity to explain to me that it never happened."

The answer went on but it did not constitute a response to the
Chairman's question.

I have set out these exchanges at some length because they show that the Chairman made considerable efforts to obtain an indication from Mr Szelagowicz of the relevance of the witnesses whom he desired to call, and whose calling

would necessitate an adjournment to another day. He did not

get an answer to his questions.

I inquired from counsel today about the relevance of the proposed witnesses. Apparently they were the four people referred to in the letter. It was difficult for me to understand how they would have been able to give evidence relevant to the committee's deliberations. The only answer that counsel could give me was that they would have provided some background information concerning the relationship between the applicant and other officers at CSIRO. This reverts to the matter first mentioned: namely, that some CSIRO officers may have been glad to see him leave the organisation.

~t seems to me that this is really evidence on credit. I do not think that it would have been admissible for witnesses to be called if the only purpose of their evidence was to impugn the credit of another witness. It follows that, even if what counsel told me today had been indicated to the Chairman, the committee would have been justified in taking the view that the proposed evidence was not relevant; and, therefore, that there was no point in granting an adjournment in order that the evidence might be received. Of course, even that was not spelled out before the committee.

It is unfortunate that Mr Szelagowicz did not have

legal representation at the committee's hearing. Whether it-
would have made any ultimate difference, I do not know. But

brought on by his deliberate decision to represent himself, it seems to me that the problems, such as they are, have been

rather than by denial of procedural fairness.

The portions of the transcript I have read show that the committee went to pains to assist Mr Szelagowicz. More than once the Chairman said that there was no particular urgency about finalising the matter, and that he did not wish to rush Mr Szelagowicz in any way. The Chairman gave Mr Szelagowicz a full opportunity to participate in the hearing. The handicap he suffered was the self-inflicted one of

attempting to conduct an important legal proceeding without

the benefit of legal representation. AS I say, this is not a
matter going to denial of procedural fairness.

I am of the view that all the challenges to the committee's decision fail. The application should be dismissed. Counsel for the respondents does not seek costs. So I simply order that the application be dismissed.

I certify that this and the preceding fourteen (14) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.

Associate:

Dated:  8 October 1993

Counsel for the Appiicant:  L T Grey

Solicitors for the Applicant:	JJ Wheeler & CO
Counsel for the Respondent:	S Gageler
Solicitors for the Respondent:	Australian Government Solicitor
Date of hearing:	8 October 1993