Velasco, Billy Pizarro v Carpenter, Phillip

[1997] FCA 598

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Public service - charges laid against applicant for failure to fulfil duty as an officer - interdepartmental enquiry - natural justice - whether inquiry officer had displayed an intention not to observe the rules of natural justice at the commencement of the inquiry - where no events prejudicial to applicant had yet occurred at relevant time -apprehended bias - inquiry officer and person laying charges both subject to same departmental head - whether inquiry officer disqualified by bias because of hierarchical association - test for determination of apprehended bias.

Public Service Act 1922 (Cth): s 61(2)
Administrative Decisions (Judicial Review) Act (1977) (Cth)

Livesey v New South Wales Bar Association (1983) 151 CLR 288
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103
Boucher v Australian Securities Commission (1996) 22 ACSR 503
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 330
R v Moss; ex parte Mancini (1982) 29 SASR 385
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215

BILLY PIZARRO VELASCO v PHILLIP CARPENTER
No VG 270 of 1997

MERKEL J
MELBOURNE
24 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)  No VG 270 of 1997
GENERAL DIVISION	)

BETWEEN:	BILLY PIZARRO VELASCO Applicant
AND:	PHILLIP CARPENTER Respondent

COURT:	MERKEL J
PLACE:	MELBOURNE
DATE:	24 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent's costs of and incidental to the application, including reserved costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)  No VG 270 of 1997
GENERAL DIVISION	)

BETWEEN:	BILLY PIZARRO VELASCO Applicant
AND:	PHILLIP CARPENTER Respondent

COURT:	MERKEL J
PLACE:	MELBOURNE
DATE:	24 JUNE 1997

EX TEMPORE REASONS FOR JUDGMENT

The applicant is a member of the public service. On 4 February 1997 two charges of improper conduct were brought against him pursuant to s 61(2) of the Public Service Act 1922 (Cth) (“the Act”). The particulars of the charges, which were set out in the notice of the charges, allege that the applicant made improper threats and accusations against a fellow officer and his manager respectively.

The respondent was duly appointed as the inquiry officer pursuant to s 62 of the Act. In accordance with the requirements of s 62, the respondent allowed the applicant 12 days to respond in writing to the charges.

The solicitor for the applicant informed the respondent that in order to accord natural justice to the applicant, he was required to provide the applicant with all the documents and evidence intended to be used by the respondent at the inquiry and to direct that evidence be on oath and that witnesses be subject to cross-examination.  The applicant’s solicitor also contended that as both the respondent, as inquiry officer, and Ms Carolyn McClean, the person bringing the charges, are answerable directly to a Mr James McCarthy, the area manager for South East Victoria, there is a reasonable apprehension of bias and the respondent should not conduct the inquiry.

The respondent did not agree to disqualify himself or to comply with the other requirements of the applicant’s solicitor.  He acknowledged that he was bound to comply with the rules of natural justice and said that he would comply with those rules.  However, he did not indicate the nature of the steps he proposed to take in that regard.  He did indicate that he was in the process of assembling all of the documents to be used by him in initiating the inquiry process, which were to be provided to the applicant. 

The applicant has applied under the Administrative Decisions (Judicial Review) Act (1977) (Cth) for injunctions restraining the further conduct of the inquiry on the ground that the inquiry will be conducted in breach of the rules of natural justice.

In substance, the application raises two issues.  The first involves whether the respondent has indicated that he proposes to conduct the inquiry in breach of the rules of natural justice.  The second is whether the hierarchical relationship between the respondent, Mr McCarthy (the area head to whom he reports) and Ms McClean, (the person bringing the charges) is such that the parties or the public might entertain a reasonable apprehension that the respondent might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the inquiry:  see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293.

I turn to consider the case based on denial of natural justice.  It is common ground that the rules of natural justice apply to the inquiry.  In Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123 I made certain observations concerning those rules in respect of an administrative inquiry:

“The rules do ‘not call into play a body of rigid procedural rules which must be observed regardless of circumstances’: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 648 at 652.  In Kioa v West Mason J said:

‘What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting.’

An applicant is entitled to know the case against him or her and be given an opportunity of replying to it. 

But procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or gravamen or the information intended to be relied upon is brought to his or to her attention:  see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 and McVeigh v Willara Pty Ltd (1984) 6 FCR 687 at 600-1 ...”

I added (at 123):

“But, as the decision in Kioa itself demonstrates, the disclosure is not limited to the matters intended by the decision-maker to be relied upon.  Quite often the decision-maker will only determine those matters in the course of preparing or making the decision. 

Rather, at least in a case as the present, the issue is whether the applicant has had brought to his attention ‘the critical issue or factor on which the administrative decision is likely to turn’ (Kioa at CLR 587 per Mason J)  or ‘relevant matters adverse to’ the interests of the applicant which are ‘credible, relevant and significant to the decision to be made’ (Kioa at CLR 629 per Brennan J) or ‘the matters raised against them’ (Kioa at CLR 634 per Dean J).

Where the information in question is prejudicial to the applicant or to the case he or she is putting it is not necessary to show that it did work to the prejudice of the applicant; it is sufficient to show that it was open for it to do so:  see Kanda v Government of Malaya [1962] AC 322 at 337-8”.

The present case raises issues analogous to those considered by the Full Court in Boucher v Australian Securities Commission (1996) 22 ACSR 503. At 510-512 the Court made observations about the flexibility of the rules in relation to the exercise of administrative functions which enable an inquisitorial rather than an adversarial inquiry.

In particular, the Court emphasised the ability of the person conducting the inquiry to utilise the flexibility of the procedures open to him to ensure that the inquiry is conducted fairly.  In such cases the rules requiring procedural fairness in relation to the conduct of the inquiry can be adapted to deal with the particular exigencies involved in the inquiry as and when they arise. 

In the present case, the inquiry is only in its formative stages.  The respondent is endeavouring to determine the scope of the matter the subject of the inquiry and the issues which will be contested before him.  When the scope of the inquiry and the issues involved are determined, there is no reason to expect that procedural fairness will not be accorded to the applicant.  It has already been indicated to him that he will be afforded the opportunity to put his case and to be heard.  In my view, the applicant has not established that he will be denied natural justice in the conduct of the inquiry.  Unlike the situation in Kioa, and even in Boucher, where the events said to be prejudicial had already occurred, in the present case the applicant is unable to point to any events which have occurred which are prejudicial to him in the conduct of the inquiry.  At most he can say that the inquiry might be conducted in breach of the rules of natural justice if he is not afforded a reasonable and appropriate opportunity to put his case.  Nothing in the material discloses that there is any likelihood of that occurring.  If and when the applicant is not afforded an adequate opportunity to put his case, then that may be a different matter.  At this stage I need only be satisfied that the applicant has not made out the case required to be made out of an actual or threatened denial of natural justice.

The second issue requires a careful consideration of the hierarchical relationship between the respondent, Ms McClean and Mr McCarthy, their area head.  Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 330, R v Moss; ex parte Mancini (1982) 29 SASR 385 and the Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375 are examples of cases where courts have been required to consider apprehended bias, as enunciated in Livesey (supra), in relation to an administrative decision maker who is answerable to a departmental head or to a Minister who might be apprehended by the public to have an interest in, or a view as to how, the matter to be determined by the decision maker ought to be decided.

I considered this kind of issue in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 224-226, and concluded at 226 that in such cases “... a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case” must be established. I added:

“It is the capacity of the association to influence the decision rather than the association as such that is disqualifying.”

Earlier at 222, I said:

“There must be something in the nature or extent of the association relied upon which leads that bystander [ie the reasonable bystander] to conclude, whether for friendship, love, money, fear, favour or otherwise, that the adjudicator might be influenced by it.  Where the association in question is trivial, remote or indirect the courts might conclude that it is not a disqualifying one.”

In the present case the link relied upon is tenuous and remote.  The evidence does not disclose that Mr McCarthy:

(a)has had any prior involvement in relation to the subject matter of the charges;

(b)is aware of the subject matter of the charges, or has any interest or view as to how they might be dealt with; or

(c)holds any view whatsoever in relation to the applicant.

The applicant relies on Mr McCarthy’s role in a decision not to gazette an upgraded position which the applicant recommended be created and for which the applicant intended to apply.  The extent of Mr McCarthy's involvement in the decision is set out in a departmental minute dated 24 September 1996.  The minute shows that in view of the generalised “recruitment/selection freeze” operating at that time, Mr McCarthy as area manager was only prepared to seek the necessary permission from National Office to gazette departmental positions where there are large numbers of identical vacancies. 

In reliance on that statement of policy, the upgraded position was not gazetted.  Although the failure to gazette the position may have led to some acrimony between the applicant and certain departmental officers, which in turn may have led to the events alleged in the charges, there is no evidence of any personal involvement in, or knowledge of, those events on the part of Mr McCarthy.  The kind of conscious or unconscious pressure on a decision‑maker to decide a matter in the way perceived to be preferred by a departmental or ministerial superior, which was said to be capable of existing in Mok and Fingleton, is absent in the present case.

In my view, the applicant has failed to establish that the parties or the public might entertain a reasonable apprehension that the respondent might not bring an impartial and unprejudiced mind to the resolution of the issues arising in the inquiry:  see Livesey (supra) at 293-4.

For these reasons the application is to be dismissed, and the applicant is to pay the respondent's costs of and incidental to the application, including reserved costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Date:              9 July 1997

Counsel for the Applicant:	Mr P Cawthorne
Solicitor for the Applicant:	Julian M Abrahams
Counsel for the Respondent:	Mr R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 June 1997