Thomas Edward Williamson v Charles Ross Marrison

[1982] FCA 36

Re: THOMAS EDWARD WILLIAMSON
And: CHARLES ROSS MORRISON
And: JOHN WALTER SLEEP
And: DOUGLAS DOWSTOW CARPENTER
And: DONALD ROY WHITE (1982) 59 FLR 473
No. A.C.T. G 48 of 1981
Administrative Law - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

A.C.T. DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - employee of Commonwealth - charged with failure to fulfil duties - finding by Chief Officer that charge made out - appeal to Disciplinary Appeal Board - hearing before Board - submission of no case to answer - employee required by Board to elect not to call evidence - whether error of law

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

Practice - Public service - Commonwealth - Disciplinary Appeal Board - Charge of failure in duty as employee - Plea of no case to answer - Board refused to decide no case plea unless employee elected not to bring evidence - Whether Board had right to put employee upon election - Whether employee charged with criminal offence - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5(1) - Public Service Act 1922 (Cth), ss. 56, 61, 62(1), (3), (6), 63D(2), (3), 63E(12), 63G(1).

HEADNOTE

The applicant, an employee of a Commonwealth department, was charged with having failed to fulfil his duty as an employee. An inquiry found that the matters charged were true and constituted misconduct as defined by the Public Service Act 1922. The applicant appealed against that decision to a Disciplinary Appeal Board. At the close of the Commonwealth's case the applicant's counsel submitted to the Board that there was no case to answer. The Board ruled that it would not deal with the no case submission unless the applicant elected not to bring evidence before the Board. The applicant then applied to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the Board's decision.

Held, that it was open to the Disciplinary Appeal Board, as a matter of law, to decline to entertain the submission that there was no case to answer in the absence of an election by the applicant not to call evidence because s. 63E(1)(a) of the Public Service Act 1922 provides that the procedure of the Board is within its discretion and because in the present case the charge against the applicant was that he had failed in his duty as an employee but not that he had infringed the criminal law.

R. v. White; Ex parte Byrnes (1963), 109 CLR 665; Wright v. Mooney, (1966) VR 225; Bodna v. Deller, (1981) VR 183; Union Bank of Australia Ltd. v. Puddy, (1949) VLR 242; Trade Practices Commission v. George Weston Foods Ltd. (No. 2) (1980), 43 FLR 55; Stevenson v. Barham (1977), 136 CLR 190, referred to.

HEARING

Canberra, 1982, March 18, 22, 26. #DATE 26:3:1982

APPLICATION.

Application to the Federal Court of Australia under s. 5(1) of the Administrative Decisions (Judicial Review) Act 1977 for an order to review a decision of a Disciplinary Appeal Board. The following judgment deals almost exclusively with the question whether, in law, the applicant had the right to require the Disciplinary Appeal Board to hear and determine his submission that there was no case to answer without requiring him to elect not to call evidence in his own case.

B.R. Maguire, for the applicant.

L.E. Vardanega, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Pamela Coward & Associates.

Solicitor for the respondents: Deputy Crown Solicitor of the Commonwealth.

E.F. FROHLICH

ORDER

1. The further hearing of the appeal stood over to allow the parties to consider their positions in the light of these reasons.

JUDGE1

The applicant is an employee of the Commonwealth. He is a driver in the Department of Administrative Services. In the circumstances which I shall later relate he was charged with having failed to fulfil his duties as an employee. The charge was laid under s.56(d) of the Public Service Act 1922 (Cth) which provides that an employee shall be taken to have failed to fulfil his duty as an employee if he engages in improper conduct as an employee. The particulars of the charge were that he assaulted another employee who had a supervisory role in relation to him. In due course an enquiry pursuant to s.62(1) of the Act was held into this charge. The enquiry was conducted by the Chief Officer, the person designated by the regulations made under the Act as the appropriate person to determine such a charge. The Chief Officer concluded that the matters alleged in the charge were true and constituted misconduct as defined in s.56(d) of the Act. He directed that the applicant be transferred to perform other duties in the Department, this being a direction which he was authorised by s.62(6) of the Act to give.

Pursuant to the right given to him by s.63D(2) of the Act the applicant appealed to a Disciplinary Appeal Board against the Chief Officer's decision. Pursuant to s.63D(3) a Disciplinary Appeal Board shall hear each appeal submitted to it under ss.(2) and may confirm, vary or set aside the decision against which the appeal is made.

When the appeal came before the Disciplinary Appeal Board the applicant was represented by counsel and the Commonwealth by a legal officer in the Deputy Crown Solicitor's Office Canberra. The appeal was heard on 4 and 5 November 1981. The proceedings were conducted upon the basis that the Commonwealth called its evidence first. A number of witnesses were called by the Commonwealth's legal representative and in due course he closed his case. At that point some exchanges took place between Mr Purnell, who appeared for the applicant, and Mr Davidson, who represented the Commonwealth. As the exchanges are of some importance, I set them out verbatim:
"MR PURNELL: I wish to make a no case submission.

CHAIRMAN: Before you do Mr Purnell I think we ought to be clear as to just what procedure we are going to follow. As I understand what you are putting to the Board you are now going to submit that on the evidence that is presently before the Board that the charge with which the appellant was charged, which was charged before the Board, is not sustained on that evidence.

MR PURNELL: That is right.

CHAIRMAN: If the Board decides that there is a case to answer then you would consider that you would go into evidence. After you have addressed on this issue then we will hear Mr Davidson. Well you will be aware that, well as I said to you before this isn't a prosecution and the Board has got certain statutory powers and functions as to what it has to do. It may well be that after we have heard both you and Mr Davidson that we will have to adjourn to consider the matter and we will then have to inform you how we see the next stage of the proceedings, understood?

MR PURNELL: Yes, fine. Thank you Mr Chairman.

MR DAVIDSON: Before Mr Purnell goes into his submission Mr Chairman I would like to point out another alternative to the Board. As yourself, Mr Chairman has pointed out this is not a criminal proceeding. Accordingly it is perhaps in a group of its own; it is a discipline proceeding rather than merely a civil matter. However as I understand the position in matters other than criminal proceedings if a no case submission is made the person who made that no case submission is then, unless otherwise allowed specifically by the Board, not allowed to call further evidence in support of his case.

CHAIRMAN: Well that is a matter for the Board, isn't it?

MR DAVIDSON: It certainly is, and I wish the Board to consider that matter also.

CHAIRMAN: Yes, alright we will do that."

Thereafter Mr Purnell submitted to the Board that the evidence led by Mr Davidson had not made out a case which his client should be called upon to answer. Mr Davidson submitted to the contrary. At the end of the addresses the Chairman announced that the Board would adjourn for a short period. After a brief adjournment the Chairman made the following statement:
"The Board is now in a position of being asked to decide if the charge involved in this hearing should be dismissed. In terms of sub-section 63D(3) of the Public Service Act it is being asked to vary or set aside the decision against which the appeal is made. The Board will reserve its decision on this matter and will give its reasons in writing. We now propose to adjourn but before doing so does either representative wish to put anything to the Board?"

In response to this announcement Mr Purnell and Mr Davidson both informed the Board that they did not wish to put anything further to the Board.

On 4 December 1981, a document headed "Decision and Reasons for Decision of Disciplinary Appeal Board" was sent to the applicant. This document, which was signed by the Chairman and the other members of the Board, recited some facts relevant to the appeal and concluded in the following terms:
"6. After a short adjournment, the Chairman, on behalf of the Board, stated that, in terms of sub-section 63D(3) of the Public Service Act, the Board was being asked to vary or set aside the decision against which the appeal had been brought, and that the Board reserved its decision. Before adjourning the proceedings to a date to be fixed, the Chairman asked the representatives whether either wished to put anything to the Board. Neither did so.

"7. The Board has considered the evidence at present before it and the proper course for it to take at this stage of the proceedings. Sub-section 63D(3) of the Act provides as follows:

'(3) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (2) and may confirm, vary or set aside the decision against which the appeal is made.'

The duty of the Board is first to hear the appeal. If evidence by or on behalf of the appellant is to comprise part of the appeal, the sub-section requires the Board to hear that evidence before deciding whether it should confirm, vary or set aside the Chief Officer's decision dated 1 September 1981.

"DECISION OF BOARD

The Board therefore decides that the appellant should inform the Board, on or before 11 December 1981, by letter to the Chairman, whether the appellant wishes to bring evidence before the Board. If he does not, the Board will make a decision under sub-section 63D(3) on the basis of the evidence at present before it. If he does, the Board would require a statement in the letter as to the number of witnesses who would give evidence and the likely time the resumed hearing would take, so that the Board can fix an appropriate date, time and place for the resumed hearing."

Upon receipt of this document the applicant applied to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the Board's decision. The applicant claimed that he was a person aggrieved by the Board's decision because, so it was argued, he was potentially deprived of the opportunity of setting aside the Chief Officer's decision. He also claimed that the decision deprived him of the right to have considered and determined a submission that the evidence called by the Commonwealth did not make out a case which he should be called upon to answer.

Section 5(1)(a) and (f) of the Act were relied upon in support of the application for the order of review. Those provisions are in the following terms:
"5. (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds: -

(a) that a breach of the rules of natural justice occurred in connexion with the making of the decision;

. . .
(f) that the decision involved an error of law, whether or not the error appears on the face of the decision;"

The respondents did not contest that the Board's decision was a decision to which the Administrative Decisions (Judicial Review) Act applied, nor that the applicant was aggrieved by that decision within the meaning of s.5(1).

In support of the argument that there had been a breach of the rules of natural justice in the making of the decision, it was submitted that, whether by inadvertence or otherwise, the Board had rejected Mr Purnell's submission that his client had no case to answer without affording to Mr Purnell a proper opportunity to argue that submission. However, Mr Maguire, who argued the matter for the applicant before me, frankly conceded that little would be achieved for his client were he to succeed solely upon this basis. The real point of the application for an order of review was to obtain from the court a ruling that, as a matter of law, the applicant had the right to require the Board to hear and determine a submission that there was no case for him to answer without requiring him to elect not to call evidence in his own case. It is clear that the Board required the applicant to call his evidence before it determined his appeal. As this is the substantive point in the appeal, I shall deal with it first. At the conclusion of argument I was informed by counsel that if this point of substance were determined by the Court, the parties could reach agreement as to all other matters in dispute. They accordingly asked me not to decide the natural justice point at this stage of the proceedings.

The Public Service Act makes extensive provision for rights of appeal by employees who are subject to disciplinary action. Section 63T of the Act provides for the making of regulations applying the provisions of the Act to employees employed ina department continuously for a period of not less than one year. Regulations have been made pursuant to the section and consequently the provisions of ss.61-63G (inter alia) apply to the applicant. Pursuant to s.61, where the supervisor of an employee is of the opinion that the employee may have failed to fulfil his duty he may charge the employee with such failure. Section 62(1) provides that where an employee is charged under s.61, an enquiry must be held into the charge by the Chief Officer. Section 62(3) provides that, in an enquiry for the purposes of s.62(1), a formal hearing is not required but the employee shall be notified that an enquiry is to be held into his alleged misconduct and he is to be given an opportunity to admit or deny the truth of the matters alleged against him. If the Chief Officer who holds the enquiry is satisfied that the employee has failed to fulfil his duty, he may direct that the employee be transferred to other duties. In the present case, this is what happened. Section 63D(2) provides that an employee may appeal to a Disciplinary Appeal Board. The Board is given power to "confirm, vary or set aside the decision against which the appeal is made" (s.63D(3)) and it is required to give its reasons in writing for its decision on an appeal (ss. (7)). Section 63E(12) provides:
"(12) In proceedings before a Disciplinary Appeal Board for the hearing and determination of an appeal or request referred to in sub-section (2) or (3) -

(a) the procedure of the Board is, subject to this Act and to the regulations, within the discretion of the Board;

(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, and a proper consideration of the matter before the Board permit; and

(c) the Board is not bound by rules of evidence."

Section 63G(1) gives to an employee against whom a charge is found to have been established the right to request the Disciplinary Appeals Board to review its finding if fresh evidence becomes available. It will thus be seen that the Public Service Act sets up a most comprehensive scheme for the determination of charges of misconduct made against employees of the Commonwealth.

Mr Maguire submitted that in the present case the applicant was, in effect, charged with a criminal offence, i.e. assault. He argued that his client therefore had the right given to a person charged with a criminal offence to submit that he does not have a case to answer without being put to his election not to call evidence.

Section 56 of the Act refers to a number of circumstances in which an employee is to be taken to have failed to fulfil his duty as an employee. But in no sense do any of these circumstances amount to offences against the criminal law. They are nothing more than examples of failure by an employee to fulfil his duty as an employee. The relevant provisions of the Act do no more than define what constitutes misconduct on the part of a public servant warranting disciplinary action and what penalties may be imposed for such misconduct. They do not create offences punishable as crimes. See The Queen v. White; ex parte Byrnes (1963) 109 C.L.R. 665 at 670. Cf. Wright v. Mooney (1966) V.R. 225 at 228 and Attorney General (Victoria) v. Riach (1978) V.R. 301 at 304-5, where Kaye J. held that the hearing and determination of a charge against an officer laid under s.59 of the Public Service Act (Victoria) is neither a criminal prosecution nor a civil action. See also Bodna v. Deller and Public Service Appeals Tribunal (1981) V.R. 183.

In my opinion there is no warrant for holding that a Disciplinary Appeals Board is required as a matter of law to hear and determine a submission made on behalf of an employee that the evidence does not make out a case of misconduct without requiring the employee to elect whether he will go into evidence. No authority was advanced in support of this proposition. In civil actions the general practice is, of course, that a defendant will be required to elect: see The Union Bank of Australia Limited v. Puddy (1949) V.L.R. 242 and Trade Practices Commission v. George Weston Foods Limited (No. 2) (1979) 43 F.L.R. 55 and cases there cited. The rule is not inflexible and may be departed from when it is appropriate to do so: see Stevenson v. Barham (1977) 136 C.L.R. 190 at 203 per Mason and Jacobs JJ. Section 63E (12)(a) provides, in terms, that the procedure of the Board is to be within its discretion. The charge against the applicant was in no sense a charge that he had infringed the criminal law. It was no more than an allegation that he had failed in his duty as an employee. It was for the Board to determine whether it would hear the whole of the evidence before reaching a decision on the charge. In my opinion, it was plainly open to the Board to decline to entertain the submission that there was no case to answer in the absence of an election by the applicant not to call evidence.

What I have so far said is sufficient to dispose of the point of substance in the appeal. At the request of the parties the further hearing of the appeal is stood over to allow the parties to consider their positions.