Wavell-Smith, B. v Mussared, P

[1987] FCA 367

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD- of 1987
GENERAL DIVISION	1

BETWEEN: BRIAN CUVELL-SMITH

Appllcant

AND: P. MUSSARED

First Respondent

AND: J. ROACHE

Second Respondent

AND: K. CONKAY

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J.

DATE OF ORDER:	1987	7 JULY
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

The appllcatlon for lnterlocutory rellef made	6
July 1987 be dlsmissed.

m:

Settlement and entry of orders 1s dealt wlth in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD of 1987
GENERAL DIVISION	)

BETWEEN: BRIAN WELL-SMITH

Applicant

AND: P. MUSSARD

First Respondent

AND: J. ROACHE

Second Respondent

AND: K. CONWAY

Third Respondent

PINCUS J. 7 JULY 1987

EX TEMPORE REASONS FOR JUDGMENT

Thls 1 s an ex parte appllcatlon but, In vlew of the

careful argument addressed to me, I have thought it right to give

my reasons for declslon in some detall. The appllcant 1 s employed

by AS10 under determinatlon 4 / 0 5 . Clause 55 of that document

contemplates that in certain circumstances likely to result in

some officers of a functlonal unit being ldentlfled as excess officers, a Personnel Assessments Committee is to be appolnted - c1.55(3). Its purposes are to identify the excess officers and

recommend to the Chief Officer as to which of them should be

declared in excess of requirements. Under c1.55(5) the criteria

t o be applied by the Personnel Assessments Committee in

L.

identiflcation of excess offlcers are to be, in the present

circumstances, the order of relative efficiency. It will be noted

that the power of the Personnel Assessments Committee as to a

declaration in excess of requirements is merely recommendatory

under c1.56. It is the Chief Officer who may declare an officer

eligible for edeployment and that seems to follow on a

recommendation that they be declared In excess of requlrements.

It is unnecessary to consider in detall the fate of the declared

officers, dealt wlth In c1.57 and c1.58. The applicant says he may well be transferred interstate and I decide this appllcation on the assumptlon that that is so. Under c1.60 there 1 s a rlght

of appeal agalnst a declaration of ellglblllty for redeployment,

where it results from a recommendatlon under power 55(3)(b), 1.e.

a recommendation that the offlcer be declared in excess of

requlrements. The grounds of appeal are greater efflciency than

officers not so declared and other grounds not necessary to be

mentioned In detall. Under c1.60(4)(c) the appeal 1 s to be

referred to a Redeployment and Retirement Revlew Committee. Under

c1.61(3) that Committee is to enquire into the merits and under

sub-c1.(4) Its proceedings -

".. . shall be conducted with as little formality and

technicality and with as much expedltlon as a

proper consideration of the matter before it

permlts and the Commlttee may inform Itself on any

matter in such manner as it thinks appropriate."

The Committee is to report to the Director-General recommending

whether the appeal should be allowed and the Director-General	is
then empowered to confirm or revoke the declaration.

,

3.

The applicant has been an officer of AS10 for more than

2 0 years. In May 1987 a Personnel Assessments Commlttee met to

identify officers In excess of those requlred for the operatlon f

the Queensland Regional Office and to recommend those officers who

should be declared in excess of requirements. In the applicant's

classiflcation - Intelligence Officer Grade 1 - six (including the

applicant) were identified as excess to requirements and three

not. That was done on the basis of interview, answers to

questionnaires, review of files and staff assessments and the

like. On the basls of that informatlon "summary assessments" were

prepared. The appllcant was provided on 1 July with a copy of the

section of the Committee's report regardlng hlmself, together wlth

a copy of the section relating to the successful officers.

As I read the report concerning the appllcant, no

allegatlon of mlsconduct or the like 1 s made against hlm. An

example of the sort of praislng remark made was that he "remalns

loyal to the organisation and holds a strong convlctlon regardlng

Its functions and responsibillties." A contrary example is that

he is "generally dlsorganlsed and hesitant In hls approach to work

and lacks precislon and incisiveness". Comments	of the latter
sort prevail.

On 3 June 1987 the applicant was sent a memorandum, of whlch I have no copy, apparently advising him of the adverse

result. On 17 June he sent in a notice of appeal and asked that

the principles of natural justice be complied with and in

particular that he be personally heard and represented, that he be

able to call witnesses and tender documentary evidence, and be

4 .

able to cross-examine any person giving evidence or tenderlng

documentary material before the Committee, and that he or hls

legal advisers be given access to any and all departmental

correspondence files, reports and the like relevant to the ground

of appeal. On 1 July 1987, the chairman of the R.R.R.C. sent a

telex setting out the procedures of the Committee. The principal

features were that parties might nominate referees to determlne

their relative efficiency; written references in advance of the

Committee hearing were requested. They were not to call witnesses

and challenges to the findings of the P.A.C. were to be made In

writing before the hearings. Appellants were invlted to submlt

supporting statements elaboratlng on the grounds of their appeal.

On 2 July the applicant and others replied to the chalrman

complainlng of the restrictlons on the hearlng notified In the

telex of 1 July and asklng for more time to prepare the case. On

3 July the Revlew Commlttee replied and sald, wlth partlcular reference to the time for preparatlon, that the appellant should have had four weeks to prepare the appeal. A telex of 3 July in reply to that substantially restated the applicant's posltlon.

In his affldavlt m support of thls application, the applicant says, among other thlngs, that the only way for him

properly to contest the adverse findings relating to hlm "is to

cross-examine the person or persons who made them or who provided

the information which allegedly supports them". In a further

affidavit, the applicant says that he is incapable of properly

representing his own interests in the matter and pursuing the

points that would be relevant to his appeal.

,

5.

In my view, the most important authorlty relating to the

duties of such a body as the Review Committee 1 s the decision of

the Full Court in Ansell v. (1982) 43 A.L.R. 41. That

concerned a promotion appeal and it had in common with the present

case that the task of the appeal committee was to grade people in

accordance with their respective efficlencies. I should have

thought the right to natural justice would be rather more evident

in the present case than in Ansell v. Wells, because here an

adverse result could ultimately lead to retrenchment. So far as

the statute was concerned, the provisions were much the same in

that there was no express right to legal representatlon and

regulation 109F requlred the trlbunal 'I... to make its enqulrles

without regard to legal forms or solemnltles". Frank1 J. was	of
opinlon that "the requirements of natural lustice appllcable	in

proceedlngs before a committee do not necessarily extend beyond

making certain that each party is aware of the substance of the

case against hlm (Including the case for the other party) and

glvlng each party an opportunlty to put hls case to the

committee". Hls Honour also had some difficulty m visuallslng

any case before the commlttee "where the requlrement to observe

principles of natural ~ustlce would necessarily require a

committee o allow cross-examination of wltnesses or

cross-examination by one party of the other party." Davles J.

said that the task of the committee had "traditionally ... been

achieved through interview of the contending officers and inquiry

rather than through the weighing up of evidence adduced". He

thought a process of separate interview of the parties and inquiry

of referees might be the most appropriate means by which the

committee could fulfil its function and expressed himself in terms

1.

. 6.

which would not encourage the thought that those providing adverse

opinions had to be unmasked. His Honour emphasised the discretion

the committee had as to what it dld and dld not dlsclose.

Lockhart J. expressed himself opposed to the idea that the

committee had to "conduct a formal hearing at whlch the partles

are entitled to be present when they and others glve evldence

relevant to the appeal, to cross-examine persons who give

evidence, to be represented by solicitors or counsel, to adduce

evidence, and to put their respective cases to the committee". He did not think that importation of the adversary system Into that sltuation was warranted and stressed the "aim of fostering

harmonlous relations between fellow offlcers who must work OK

continue to work together and not of promotlng dlscord between

them. "

It appears to me that the general tenor of the

observations In Ansell v. Wells 1s not easy to reconclle wlth the

approach of Ellicott J. in Flnch v. Goldstem (1981) 36 A.L.R. 287

and two of the ~udges In the Full Court implied that there might

be some mconslstency with the earlier declslon.

One point on which the Full Court was clear was that, at

least in general, the appellant had a right to be made aware of

the substance of the case agalnst him and the case for the other

party. It appears to me possible that it was reference to that

authority which induced the Review Committee, somewhat belatedly,

to cause copies of the relevant documents to	be sent	to	the
applicant.

. .

7.

It I s that delay which has most troubled me. It may

seem rather hard on the appllcant that he will have had only SIX

days' notice of the allegations against him when he goes before

the Review Committee. On the other hand, the general subject

matter - relative efficiency - has been known to him, as the

Review Committee says, for some weeks longer, and one would have

expected that if he had prepared material relating to it, that

could not have required any drastic revlsion when he had the

rather general terms of the praise and dispraise relatmg to

himself and the successful officers. Although my mind has

fluctuated on the question, and I think it unfortunate that the necessary information was supplied rather late, It does not seem appropriate in the exercise of discretion to prevent the review

committee from deallng with the matter. It appears to me,

however, that they might well be w1se to conslder glvlng the

applicant a further opportunity to place addltlonal rnaterlal

before them, if it appears that the fairly short time available

since he received the details of the P.A.C. assessment has been

insufflcient. I do not think I should assume agalnst them,

however, that they will act unfairly In that respect. They have

given an assurance that they will stay in Brlsbane until all

partles have had an opportunlty to be heard, and no doubt if that

turns out to be inconvenient, they will consider receivlng further

submissions within a	reasonable time after thelr departure	from
this city.

One reason for my conclusion that it is inappropriate o

prevent he hearing is that he principal thrust of the

applicant's complaints is not that he has been unable in the time

8.

available to prepare a case on relative efficiency, but rather

that there is no intention of conducting just that sort of

adversarial hearing which, as I read Ansell v. Wells, is not

required. I think I should apply Ansell v. Wells to the present

situation. It would seem to me unllkely that, if this matter went

to trial, it would be held that there is a right to have legal

representation, to cross-examine anyone who has provided

information relevant to the applicant's efficlency, to renew all

the departmental papers relevant to the issue and so forth.

It might be thought rather harsh, in view of the

applicant's long servlce, to dispose of his posltion in a hasty

way, but thls Court has no ~urisdictlon to make such orders as will, in its opinion, make for falr deallnq between the applicant

and his employer. Its only relevant power is to l ook into the

questlon of observance of the rules of natural ~ustlce. In the

grading of the relative efficiencies of these offlcers, the

ultimate responslbillty of the Revlew Commlttee is to glve a fair

hearlng and a fair chance to the applicant o put his case. In my

opinlon, despite the able argument put forward, he has not

advanced grounds of sufficient strength against the legality of

the mode of proceeding which is outlined in the Review Committee's

telexes to warrant the grant of an interim injunction. In

accordance with the principles laid down by the Full Court in

Ansell v. Wells, the application must be refused.

l certify that thls and the 7 preceding

pages are a true copy of the reasons for

judgment hcreln of His Honour

Mr. Justlce Pincus

Qa&d 1 ~ U ( Y r q s7