Verran, R. v IAnson, B.M

[1988] FCA 815

JUDGMENT No. 8!.5.’/..&8-

IN THE FEDER.3L COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 84 of 1987
DISTRICT REGISTRY	)
1
GENERAL DIVISION	)

BETWEEN:  RAYMOND VERRAN

Applicant

ANI):	BRIAN MAURICE I’ANSON, WAYNE
BRUCE BERRY and ROBERT  JOSEPH
LILLEY

First Respondents

PATRICK EDWARD CONWAY, XEVIN

JOHN COPERFORD, PETER AEKE~ALD
McLEOD and WARWICK STEPHEN

COOMBE

Second Respondents

GEORGE BRAMWELL FOX

Third Respondent

WILLIAM MOORE GOULD KERR

Fourth Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.

DATE OF ORDER : 16 December 1988

.

- WHERE MADE : Canberra

THE COURT ORDERS THAT:

1.     The tlme wlthin-whlch the applicant mlght apply for

an ordcr of revlew under the Adminlstrative

Decislons (Judicial Renew) Act 1977 in respect of the declslon made by the fourth respondent on or about l8 August 1987 provlslonally to promote each

of the second respondents arid the thlra respondent to the rank of Distrlct Offlcer in the Australian

Capltal Terrltory Flre Brlgade be extended up to

and lncludlng 11 February 1988.

2 . The declslon of the fourth respondent made on or

about 18 August	1987 provisionally to promote the
third respondent to the rank of District Officer	b
set aside.

3.     The decislon of the Promotlons Appeal Tribunal made on 28 October 1987 disallowing the appeals by the

appllcant agalnst the provisional promotlon f each

of the second respondents and of the third

respondent be set aside.

4. The decislon of the fourth respondent confirming

the provlsional promotion of each of the second

respondents and of the third respondent to the rank

of Ihstr1ct Offlcer, notlflcation of which decision

was given on 9 November 1987, be set aside.

5.     The matter of the promotion of a member of the

Australlan Capltal Terrltory Fire Brigade to the

rank of Dlstrict Officer consequent upon the

setting aslde of the decision of the fourth

respondent provlslonally to promote the third

respondent to that rank be referred to the fourth

respondent for further consideratlon subject to a

direction that, In promoting a member to that rank,

the fourth respondent 1 s bound to act on the basis
that, where more than one person is eliglble for
promotion to that rank, the relative seniority of
those persons 1s to be determined by reference to

the dates of their respective appointments to the

Australian Capltal Territory Fire Brigade, a person

whose date of appointment to the Brigade was

earller than the date of appointment of another person bemg senior to that other person.

6. The appeals by the applicant against the

provlslonal promotlons of each of the second

respondents to the rank of Dlstrict Officer be

referred to the Promotions Appeal Tribunal for

further conslderatlon sub~ect to a direction that

the appllcant has seniority within the meaning of

that expresslon in section 33(1) of the

Briqade (Administration) Ordlnance 1974 (A.C.T.)

over each of those respondents.

7 .	The fourth respondent pay the applicant's costs	of
the application.
8.	The above orders shall take effect at a date later

than the date on which they are pronounced, namely

on 6 February 1989.

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

36 of the Federal Court Rules.

IN THE FEXIERAL COURT OF AUSTRALIA	)
)

AUSTRALIAN	C PITAL	ERRITORY	)
) No. ACT G 84 of 1987

DISTRICT REGlSTRY	)
\

DIVISION GENERAL )

EETWEEN:  RAYMOND VERm

Applicant

AND:	BRIAN MAURICE I'ANSON, WYNE
BRUCE BERRY and ROBERT  JOSEPH
LILLEY

Flrst Respondents

PATRICK EDWARD CONWAY, KEVIN

JOHN COMERFORD, PETER ARCHIBALD

McLEOD and NARWICK STEPHEN

-_ COOMBE

Second Respondents

GEORGE BRAMWELL FOX

Thlrd Respondent

WILLIAM MOORE GOULD KERR

Fourth Respondent

CORAM: Neaves J.

DATE: 16 December 1988

SUPPLEMENTARY REASONS FOR JUDGMENT

On 9 November 1988 I publlshed reasons f o r ~udgment

in thls appllcatlon but made	no flnal orders pending the
parties having an	opportunlty to make submlssions thereon.

The applicatlon was, accordingly, adjourned to a date to be fixed.

,

I have now had the benefit of submlsslons by the

parties ato he orders which should be made.

Unfortunately, there	1 s no unanimity as to what those orders
should be.

Counsel for the appllcant submitted that orders

should be made In tcrms of a draft mlnute whlch he handcd to

the Court. The e€fect of the orders set out in that mlnute

would be -

(a) to set aslde the declsion of the

Promotlons Appeal Trlbunal made on 28

October 1987 disallowing the appllcant's

appeals agalnst the provlslonal

promotion each f the of s cond

respondents and of the thlrd respondent;

and

to set aside the decislon of the fourth

respondent notified on 9 November 1987

conflrmmg the provlslonal promotion of each of the second respondents and of the third respondent.

Consequential orders would be made remltting to the

Promotlons Appeal Tribunal for determination accordlnq to

law the applicant's appeals against he provislonal

promotlon of each of the second respondents	and the thlrd
respondent.

Counsel for the fourth respondent submitted that

orders should be made setting aside the decision of the

fourth respondent that each of the second respondents and

the third respondent be provisionally promoted, the decision

of the Promotlons Appeal Trlbunal dismlsslnq the appllcant's

,

appeals agalnst hose provlslonal promotlons and the

declslon of the fourth respondent confirmlng those

promotlons wlth a	consequentlal order remitting the matter
to the fourth respondent	to make provlsional promotlons

according to law to the consequentlal vacancies m the rank

of Distrlct Offlcer.

The second respondents submitted that no order

should be made settlnq aslde the decislon of the fourth

respondent that they be	provlslonnlly promoted to the rank
of Dlstrlct Offlcer.

The thlrd rcspondcnt mJde no submlsslon beyond

acceptlnq that, to glve effect to the reasons for	judgment,
the various declslons relatlng	t o h l s promotlon t o the rank
of Dlstrlct Officer should	be set aslde.

Havlng heard the subrnlssions of counsel in relatlon

to the matter, I thlnk that, In all the circumstances, It 1 s

approprlate that the Court should set aslde the decision of

the fourth respondent provlslonslly to promote the third

respondent. However, in the exerclse of	Its discretlon, the
Court should, I thlnk, refraln from making	an order settlng
aslde	the declslon provislonally to promote each of the

second respondents. To make such an order In relation to

the provlsional promotlon	of each of the second respondents
would clearly be dlsadvantageous to them.	The only basls

for maklng the order would be that It might be of some

advantage to the appllcant that he be considered for

,

promotion in a situation where there are flve vacancies

rather than in the s~tuatlon where there is only one vacancy

consequent upon the orders made in respect of the promotlon of the thlrd respondent. On the other hand to refraln from maklng the order wlll allow the appllcant to proceed with

hls appeals against the provislonal promotion of each of the

second respondents and, If he 1s successful m any one

appeal, to have the benefit of s . 3 3 ( 4 ) of the Fire Briqade

(Admlnlstration) Ordinance 1974 ( A . C . T . ) There 1 s no

suggestion that the rights of any members of the Australlan

Capltal Terrltory Fire Brlgade other than those before the

Court wlll be affected whichever course is taken. The

applicant does not seek an order setting aside the declsion

provislonally to promote each of the second respondents.

I make the followlng orders -

1.         The tlme within whlch the appllcant mlght apply for

an order of review under the Adminlstratlve

Decisions (Judicial Renew) Act 1977 in respect of

the declslon made by the fourth respondent on or

about 18 August 1987 provlslonally to promote each

of the second respondents and the third respondent to the rank of Dlstrict Officer in the Australian Capltal Territory Fire Brigade be extended up to

and includlng 11 February 1988.

2 .	The decision of the fourth respondent made on or
about 18 August 1987 provisionally to promote the third respondent to the rank of District Officer be set aside.

3.     The declslon of the Promotions Appeal Tribunal made on 28 October 1987 disallowing the appeals by the

applicant agalnst the provlsional promotlon f each

of the second respondents and of the third

respondent be set aside.

4. The decislon of the fourth respondent confirming

the provisiohal promotion of each of the second

respondents and of the third respondent to the rank
of District O€flcer, notification of whlch decislon
was given on 9 November 1987, be set aside.

5.     The matter of the promotion of a member of the

Australian Capltal Territory Fire Brigade to the

rank of Dlstrlct Officer consequent upon the

settlng aslde of the decislon of the fourth

respondent provisionally to promote the third

respondent to that rank be referred to the fourth

respondent for further consideration subject to a direction that, In promotlng a member to that rank, the fourth respondent 1 s bound to act on the basls

that, where more than one person 1 s eligible for

promotion to that rank, the relative seniority of

those persons is t o be determined by reference to

the dates of thclr respective appointments to the

Australian Capltal Territory Fire Brlgade, a person

whose date of appolntment to the Brigade was

earlier than the date of appointment of another

person belng senlor t o that other person.

6. The appeals the hy applicant agamst the

provislonal promotions of each of the second

respondents to the rank of District Officer be

referred to thc Promotlons Appeal Trlbunal for

further consideration sublect to a direction that

the applicant has seniority within the meaning of

that	expresslon	In	section	33(1) of the m
Briqade	(Admlnlstratlon)	Ordlnance	1974	(A.C.T.)

over each of those respondents.

7.     The fourth respondent pay the applicant's costs of the appllcatlon.

The fourth respondent, envisaging an appeal against

the ~udgment hereln, has requested that there be a stay of

thc operation of the orders pendlng the hearing and

determination of any appeal that may be lodged. In my

oplnlon, it is Inappropriate that consideration be given to

the grantlng of a stay In those terms before	an appeal has
been duly instituted.	If an appeal 1s instituted the Court
wlll be m a posltlon to consider	the matter In the light of

the clrcumstances as they then exist.

r

However, lt seems appropriate to postpone the

operation to the orders for a period so as to give the

fourth respondent, and any other party who may be so advlsed, an opportunity to Institute an appeal against the

ludgment herein and to apply for a stay pendlng the hearing

a n i dcterti~lnatl~>!i of the appeal I, tlierrforc, order,

pursuant to Order 35, rule 3 of the Federal Court Rules,

that the orders herein take effect a a date later than the date on whlch they are pronounced. In all the clrcumstances I order that the orders herem shall take effect on 6 February 1989.

I certify that thls and

the precedlng 5 pages are

true a copy the of

Supplementary Reasons	for
Judgment herem of	the

Honourable	Mr	Justice
Neaves.
I
Assoclate

Dated: 16 February 1988

Counsel for the applicant : Mr G.A. Stretton

Solicltor for the applicant : Snedden Hall & Gallop

Counsel for the flrst and	: Mr B.C. Hungerford, Q.C.
fourth respondents	and MS L. Vardenega
Sollcitor for the first and	: Australlan Government
fourth respondents	Solicitor
Counsel for the second	: Mr R.L. Crowe

and third respondents

Solicitors for the second : Pamela Coward &

thir	respondents	and	Associates
Date of	hearing	: 14 December	1988