Yorke v Ross Lucas Pty Ltd

[1982] FCA 180

Re: DAVID VAUGHAN DAWES
And: CLIVE CONRAD GESLING; CARMEL MORFUNI; ROBIN THOMAS ROSS; THE COMMONWEALTH
OF AUSTRALIA; ROBERT WILLIAM COLE; ROBERT JOHN YOUNG; JOHN VINCENT MONOGHAN
No. G57 of 1982
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

ADMINISTRATIVE LAW - Judical Review of Administrative Decisions - Natural Justice - Public Service promotion appeal - whether party adequately informed of case against him and afforded adequate opportunity to present his own case.

Administrative Decisions (Judicial Review) Act 1977

Public Service Act 1952, ss. 50, 97

Public Service Regulations, Regs. 109, 109D, 109G

HEARING

BRISBANE

#DATE 23:8:1982

ORDER

1. The Application is dismissed.

2. The Applicant pay the Respondents' costs.

JUDGE1

These proceedings concern the position of Deputy Registrar of the Family Court of Australia at Brisbane, a position described as Clerk Class 8, Third Division, Family Court, Brisbane (No. 2243). Mr David Vaughan Dawes, one of the unsuccessful applicants, contends that he was denied natural justice and that, accordingly, there has been an improper exercise of power. He has brought an application under the Administrative Decisions (Judicial Review) Act 1977. The current appointee to the position, Mr Edward Robert Cannock, has elected not to be a party to these proceedings. For present purposes, it is irrelevant whether Mr Dawes or Mr Cannock was entitled to the position on a consideration of their respective merits.

Both Mr Dawes and Mr Cannock were among those who originally applied for the position when applications were called early in 1981. Mr Cannock was senior to Mr Dawes. Mr Cannock had been the Deputy Registrar of the Family Court at Hobart since 1976, and Mr Dawes the Deputy Registrar at Townsville since 1977. Hobart is a bigger Registry than Townsville, and employs more staff. The Deputy Registrar is the senior local officer in Townsville, whereas the Hobart Registry possesses a Registrar.

Detailed specifications were laid down concerning the position. The "Duty Statement", "Job Specification", and "Selection Criteria" respectively provided:

Duty Statement "1. Hold and discharge statutory powers and functions of Registrar as required.

2. Oversight administrative aspects of the Family Court Registry on behalf of the Registrar.

3. Conduct interviews with legal practitioners and members of the public regarding practice and procedure of the Court.

4. Assist the Registrar to manage and oversight the operations of the section.

5. Oversight the preparation of orders of the Court; settle orders.

6. Oversight the preparation of daily hearing lists for all Courts." Job Specification ". Sign Nisi/Absolutes as they fall due. . Check and sign Orders when Senior Legal Officer is unavailable. . Persue ex parte and abridgment applications. . Examine Deeds for registration under Section 96. . Appraise applications for Remission of Fees. . Answer more complex enquiries at counter, telephone and correspondence. . Record all draft Judgments and provide engrossed copies when requested. . Consider requests for Transcripts; order and distribute same as required. . Liaise with Administrative Services on accommodation problems (air conditioning and minor repairs). . Discuss staff relief and recruitment with Office Supervisor and prepare recommendations to Registrar. . Prepare estimates (Forward, Revised and Current). . Attend Judges as required. . Act as Security Officer for the Registry. . General supervision of all Sections. . Persue applications and arrange interview panels for advertised vacancies below Class 8 level. . Regular liaison with Administrative Officer." Selection Criteria ". Maturity . Administrative knowledge and staff management ability . Knowledge of the Family Law Act and Regulations and Registry operations . Ability to make decisions re listing of applications and the acceptability of documents . Ability to communicate satisfactorily with Judges, the legal profession and members of the public . Significant experience in a Court Registry, especially the Family Court, is considered desirable."

A Selection Committee consisting of the then Brisbane Registrar of the Family Court and two other officers of the Attorney-General's Department was constituted in Brisbane. Interviewing Committees were set up in other places, including Hobart. Both Mr Dawes and Mr Cannock were among those interviewed by the Selection Committee, which had available to it a report dated 27 April 1981 from the Hobart Interviewing Committee concerning Mr Cannock. The Selection Committee reported to the Principal Registrar of the Family Court by letter dated 12 May 1981. By a majority, it rated Mr Dawes as the most suitable and Mr Cannock as the next most suitable applicant, and recommended that Mr Dawes be promoted to the position. The material forwarded by the Selection Committee with its Report included a record of its assessments of the respective applicants, the Hobart Interviewing Committee's Report concerning Mr Cannock, and a note of a verbal "Referee's Report" with respect to Mr Cannock obtained from a previous Hobart Registrar of the Family Court.

The Selection Committee's recommendation was accepted, Mr Dawes was provisionally promoted, and Mr Cannock appealed as he was entitled to do by sub-s. 50(6) of the Public Service Act, 1922, which provides for appeals on the grounds of superior efficiency or equal efficiency and seniority. Sub-section (4) of the same section defines "efficiency", insofar as is presently material, as "special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct". Mr Dawes was duly notified that Mr Cannock had appealed, and requested to submit a statement dealing with, inter alia, his educational qualifications, his service, his experience, and a summary of his claims. Mr Dawes was aware that a similar statement would be submitted by Mr Cannock.

Sub-ss. (8C), (8D), (8E), (9) and (15) of s.50 of the Public Service Act respectively provide:

"(8C) Where the parties to the appeal proceedings do not all perform their duties in the 1 State, a Promotions Appeal Committee for the State in which a party performs his duties, or 2 or more parties perform their duties, shall make full inquiries into, and make a report to the Board on, the claim of that party of those parties." (The Board is the Public Service Board constituted under the Act.)

(8D) Upon receipt of all the reports required to be made in accordance with sub-section (8C) by Promotions Appeal Committees in relation to a provisional promotion, the Board shall refer them to a Central Promotions Appeal Committee, and the Committee -

(a) shall examine those reports;

(b) may make such further inquiries (if any) as it thinks necessary into the claims of the parties to the appeal proceedings; and

(c) shall -

(i) where the office concerned is an office referred to in paragraph (8A) (b) - make a report to the Board on the claims of all the parties to the appeal proceedings; or

(ii) in any other case - determine the appeal or appeals.

(8E) Upon receipt of a report of a Central Promotions Appeal Committee made under sub-paragraph (8D) (c) (i), the Board shall determine the appeal or appeals.

(9) Where an appeal is allowed in pursuance of this section, the Board shall cancel the provisional promotion and promote the appellant to the vacant office.

(15) For the purposes of this section -

(a) the parties to the appeal proceedings are the officer provisionally promoted and the appellant or appellants;

(b) a reference to a Promotions Appeal Committee shall, unless the contrary intention appears, be read as including a reference to a Central Promotions Appeal Committee; and

(c) where the Board considers it desirable, for the avoidance of doubt or by reason of special circumstances, and not contrary to the interests of any party to the appeal proceedings, to do so, the Board may determine that a party to the appeal proceedings is to be deemed to perform his duties in such State as the Board specifies."

Section 97(1)(h) of the Act empowers the Board to make regulations for regulating the procedure of Promotions Appeal Committees. Purporting to act pursuant to this power, the Board has made reg 109F which states: "It shall be the duty of a Promotions Appeal Committee or a Central Promotions Appeal Committee to make its inquiries without regard to legal forms or solemnities". Provision is also made in these Regulations for the constitution of Promotions Appeal Committees and Central Promotions Appeal Committees (reg. 109D) and for the procedure for instituting appeals against provisional promotions (reg 109).

In accordance with sub-ss. 50(8C) and (8D), Promotions Appeal Committees for the states of Queensland and Tasmania and a Central Promotions Appeal Committee in Canberra were constituted. Each of the Promotions Appeal Committees was furnished with a Report dated 27 October 1981 from the Administrative Officer of the Attorney-General's Department in Brisbane dealing with the proceedings of the original Selection Committee. The Administrative Officer enclosed copies of the Duty Statement, Job Specification, and Selection Criteria for the position, together with a copy of the Family Court's Organizational Chart. The original Selection Committee's assessment of each of Mr Dawes and Mr Cannock was set out. No reference was made to the Referee's Report concerning Mr Cannock, an abstract of which had been with the Selection Committee's Report, but the information contained in it was otherwise included. Reasons for its decision were obtained from the original Selection Committee and stated in the Administrative Officer's Report on pages 2 and 3 as follows:

"The reasons given for the selection of Mr Dawes were -

1. It was considered that Mr Dawes had had to manage a Registry on his own and make decisions without the benefit of being able to consult the Registrar although Mr Dawes did find it necessary from time to time to ring Mr Garsden (the then Registrar). It was impractical for him to do so on every occasion when a decision had to be made. On the other hand, although Mr Cannock has had to operate under many different Registrars, he generally had the benefit of a Registrar readily available to consult in matters of difficulty. This independent role of the Registry and the need to manage and make decisions was considered important, particularly in a Registry such as Brisbane where there is a large staff under the supervision of the Deputy Registrar (Admin.).

2. It was considered that Mr Cannock tended to give long rambling replies to questions by the Committee often containing irrelevant material. This aspect was confirmed by one of the referees for Mr Cannock. The Committee considered that this could be confusing when it was necessary for the Deputy Registrar to deal with members of the public and the legal profession.

3. A minor point for the Committee was that Mr Dawes displayed a superior knowledge of the relevant law."

The Tasmanian Promotions Appeal Committee also had Mr Cannock's statement setting out his educational qualifications, service, experience, and claims, a certificate that he is a member of the Institute of Affiliate Accountants, and a favourable Referee's Report from the then Registrar of the Family Court in Hobart. It interviewed Mr Cannock on 2 November 1981. Mr Dawes was not present. On 3 November 1981, it forwarded a very favourable report to the Central Promotions Appeal Committee rating Mr Cannock in the "upper bracket of above average", and noting his "very strong claims" for the position. The original Selection Committee's criticism of Mr Cannock in its reasons was rejected as "neither objective nor correct". Other passages in the Tasmanian Promotional Appeals Committee's Report included the following:

"Similarly the comments on his rambling replies appear unfounded. He answered all questions, including technical questions put to him by the Departmental nominee (the Deputy Registrar from Melbourne), in a clear, concise and authoritative fashion. A check with referees on his ability to deal with members of the public and the legal profession showed that he enjoys an extremely good reputation in that direction." ". . . the Registrar himself drew the Committee's attention to the fact that Mr Cannock has maintained a high standard in the Registry while the Registrar's position has been filled by many different Registrars. He referred also to the number of times that he is absent on Section 96 conferences and Registrar conferences leaving Mr Cannock to run the Registry. This has occurred on 12 occasions this year. Mr Cannock will act as Registrar (partial performance at Class 10) during the Registrar's forthcoming annual leave. Mr Justice Woods (who has been associated with the Hobart Court since its inception) said that Mr Cannock's standard is exemplary, that he is extremely sensitive and almost over conscientious in his work. He summed up by saying that "Mr Cannock could not be better". He said that following a visit to the Hobart Court Mr. Justice Marshall commented on the high standard of the Registry, in his view a compliment to Mr Cannock."

The Queensland Promotions Appeal Committee interviewed Mr Dawes on 3 November 1981 in Mr Cannock's absence. It concentrated on "matching" Mr Dawes to the position, rather than giving him detailed information concerning Mr Cannock for his comments. It did not have a copy of Mr Cannock's statement in support of his appeal and there was no discussion of his assertions in that document. Whilst that may be regrettable, Mr Cannock's general background and experience were alluded to, and reference was made to information concerning him which had been provided by the Administrative Officer in the Attorney-General's Department by letter dated 27 October 1981 which dealt with the proceedings of the original Selection Committee, including the references therein to Mr Cannock and his background and experience and claims. Mr Dawes was invited to forward everything which he wished in order to support his case. He neither requested nor desired the Queensland Promotions Appeal Committee to take any additional step or allow him any further opportunity before it reported to the Central Promotions Appeal Committee.

The Queensland Promotions Appeal Committee reported to the Central Promotions Appeal Committee on the same day as it interviewed Mr Dawes, after obtaining a Report favourable to Mr Dawes from the Acting Registrar of the Family Court in Brisbane at Mr Dawes' request. It also had before it Mr Dawes' statement setting out his educational qualifications, service, experience and claims. Its Report to the Central Promotions Appeal Committee was favourable to Mr Dawes and rated him as "'Above Average' lower bracket". Its comments concerning Selection Criteria 2 and 6 were as follows:

"Administrative Knowledge and Staff Management Ability: With a settling-in period he would handle this aspect quite well. He has not had practical experience in handling a staff of the size involved but he should develop quickly in the job. We questioned him on his role as a manager/supervisor and such functions as recruitment and selection of staff, probation, temporary transfers, counselling, communication and related staffing issues. He understands the basic principles and procedures. Significant Experience in a Court Registry, especially the Family Court: He has had 4 years as Deputy Registrar (Class 6) in Townsville and as pointed out above he left school in 1964 and ever since has worked mainly in State and Federal Court offices. The Committee conferred by telephone with Mr Peter McManus, acting Registrar, Brisbane. He said that he had known Mr Dawes for a little over 3 years. He keeps good control over the Townsville office including staff supervision even though there are only 4 staff. He has always been able to select good staff which is important in a small office. The Judges appear to be satisfied with his organising ability. Relations with the State Service have always been somewhat strained and he has always exercised discretion and diplomacy with State officers. His knowledge of the law is good. Mr McManus said he only hears from him on "the curly ones". He is seen as being suitable for the Class 8 position."

The Central Promotions Appeal Committee, one of whose members was the Deputy Registrar of the Family Court in Melbourne, had before it the material which was before the respective State Promotions Appeal Committees and their Reports when it met on 9 December 1981. It unanimously determined that Mr Cannock's appeal be allowed. As the delegate of the Public Service Board, and in accordance with s.50 of the Public Service Act and Regulation 109G made thereunder, the Chairman of the Central Promotions Appeal Committee cancelled the provisional promotion of Mr Dawes and promoted Mr Cannock. Reasons which have been given by the Central Promotions Appeal Committee since the commencement of these proceedings reveal that its view was that both Mr Dawes and Mr Cannock could perform the duties of the position in a most efficient manner but it considered that Mr Cannock was the more efficient officer for the position. It decided that they were equal in respect of the first, third, fourth and fifth of the Selection Criteria set out above, but that Mr Cannock was superior in respect of the second and sixth criteria. As to these two matters, it stated:

"Criterion No. 2: Administrative Knowledge and Staff Management Ability The Central Promotions Appeal Committee noted in the report of the original selection Committee that at the time of interview - Dawes had been in charge of a small sub-registry with a staff of 4 for over three years. His answers to questions on administrative and staff matters showed some lack of knowledge. The Brisbane Promotions Appeal Committee reported Dawes had not had practical experience in handling a staff of the size involved in the position being considered though he understood the basic principles and procedures of staff administration. The Central Promotions Appeal Committee noted in the report of the original selection committee that Cannock has been Deputy Registrar of a Registry which at present has a staff of 13 and he has been Deputy Registrar for over six years. Prior to his service in the Family Court Cannock had supervised a staff of twelve in the Sub-Treasury. On the weight of the evidence the Committee found that Mr Cannock should be rated ahead of you on this criterion. Criterion No 6: Significant Experience in a Court Registry, Especially the Family Court is Desirable You commenced as Deputy Registrar Townsville in November 1977 where with a staff of 4 you have had over four years experience. The Brisbane Committee reported that the Acting Registrar Mr P McManus said you had good control over the Townsville Office. You are also reported as having a good grasp of the duties of the position in dispute and could within a short time perform the duties in a most efficient manner. Mr Cannock has been Deputy Registrar Hobart since November 1975 with a staff of 13. The Hobart Committee reported as follows :- "Mr Justice Woods (who has been associated with the Hobart Court Service since its inception) said that Mr Cannock's standard is exemplary, that he is extremely sensitive and almost over-conscientious in his work. He summed up by saying "Mr Cannock could not be better". He said that following a visit to the Hobart Court Mr Justice Marshall commented on the high standard of the Registry, in his view a compliment to Mr Cannock". The Committee found on this evidence that Mr Cannock should be rated ahead of you in relation to this criterion."

Mr Dawes' complaints, shortly stated, are that he was not afforded an adequate opportunity to oppose Mr Cannock's appeal by the Central Promotions Appeal Committee and that it made no inquiries of its own before it made its decision. His case was expressly related to the proceedings of the Central Promotions Appeal Committee rather than to any other step in the selection process. That he had not been heard by the Tasmanian Promotions Appeal Committee and had not the opportunity to comment before the Queensland Promotions Appeal Committee on the detail of Mr Cannock's statement in support of his appeal were at most mentioned as background facts.

Numerous authorities were relied on, but none is more favourable to Mr Dawes than the decision of Ellicott J. in Finch v. Goldstein (1981) 36 A.L.R. 287. As was there recognized (p.305), that was a very special case. Mrs Finch and the appellant against her provisional promotion each performed duties in New South Wales. Thus, there was only a single Promotions Appeal Committee which was obliged by s.50(8A) to "make full enquiries into the claims of those parties and . . . determine the appeal". The appellant claimed superior efficiency to Mrs Finch. The relevant department not only did not support Mrs Finch, the provisional promotee, but actively sought to assist the appellant. Unknown to Mrs Finch, there was prejudicial material placed before the Promotions Appeal Committee attacking her competence, her loyalty, her attitude, and her conduct. Allegations against her were not investigated but were assumed to have some weight. Misconceptions by her concerning the conduct of the proceedings were not corrected. Requests that she might be present to hear evidence, cross-examine, and be legally represented were all rejected. She did not know either what was put against her or what was put in favour of the appellant against her provisional promotion. Perhaps not surprisingly, it was held that Mrs Finch had not received natural justice.

At p.298 of the Report (36 A.L.R.), Ellicott J. said:

"I do not think there can be any doubt that Parliament intended that, under the Public Service Act, principles of natural justice should apply to the proceedings of Promotions Appeal Committees. Stated broadly this means that the Committees have a duty to be fair to those interested in the proceedings before them. But the problem in this, as in most other such cases, is to give content to that duty."

His Honour went on to quote from Kitto J. in Mobil Oil Australia Pty Ltd v. Federal Commissioner of Taxation (1963) 113 C.L.R. 475, who said at p.504:

"What is fair in a given situation depends upon the circumstances."

Ellicott J. then continued at p.299:

"Because the decisions of Promotions Appeal Committees under the Act affect the promotion and advancement of individual public servants in the Public Service, I think the proper protection of their rights at least demands that those involved in appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing to the Committee dealing with the matter (cf: Dixon v. Commonwealth, 18 June 1981, Bowen CJ., Deane and Kelly JJ. (unreported) (see now, (1981) 3 A.L.D. 289); Hamblin v. Duffy (1981) 34 A.L.R. 33; Perkins v. Cuthill (1981) 34 A.L.R. 669)."

Those statements stop short of providing a basis for the order sought by Mr Dawes in the present case. Such support as Mr Dawes derives from Finch v. Goldstein comes primarily from statements made by Ellicott J. at pp. 301 and 302. His Honour concluded that each party involved in an appeal is not only entitlted to know the case put against him or her and to have an opportunity to put his or her case to the Promotions Appeal Committee, but is, in addition, entitlted to know in substance the case being put by or on behalf of his or her rival where there is an issue of relative efficiency. In arriving at that conclusion, Ellicott J. at p.301 expressed the view, in part by reference to the terminology of the statute, which refers to "appeal proceedings", "parties", and "claims by parties", that Promotions Appeal Committee proceedings are not "inquisitorial" but "adversary" proceedings, "even though . . . there is no general duty on a Committee to hold a formal hearing at which the parties are entitlted, as of course, to appear by counsel or to other rights common to court proceedings". Further, he said that, where superior efficiency is the issue, the alleged efficiency of one party "is in a real sense part of what is put against the other", and suggested that a party could not adequately put a case that he or she is superior in efficiency without knowledge of what was being put on behalf of the other. At p.302, his Honour stated that the same approach was applicable even if there were many appellants performing duties in several States and that, if suitable procedures to ensure that each knew the substance of the case for the other parties were not or could not be adopted, each party was probably entitled to be present when others were being questioned or their referees were being spoken to.

The apparent generality of those observations ought be taken in conjunction with the quite clear, and in my respectful opinion clearly correct, statements at pp. 303 and 304 that what natural justice requires in any particular case may vary not only according to the particular statutory provisions in question but also from case to case, depending upon the different circumstances in which a particular statutory power falls to be exercised. In my opinion, Finch v. Goldstein is not authority for any proposition of universal application concerning the essential procedures to be followed by Promotions Appeal Committees under s.50 of the Public Service Act. As Ellicott J. pointed out at p.300, the appeal provisions in question have to be adapted to a multiplicity of circumstances requiring flexibility of procedure. Cases such as Finch v. Goldstein and the present case are no more than examples of the attempted application of received doctrine.

Whilst there is no doubt great weight to be attributed to the matters mentioned in Finch v. Goldstein, including the function of a Promotions Appeal Committee and the importance of the proceedings to the parties, those are not the only considerations. The statutory scheme seems to envisage that trans-national travel and complex hearings will not be necessary each time public servants contest an appointment, and such a rare glimpse of sympathy for the taxpayer ought not be lightly disregarded. It must be remembered also that there is no restriction on who may apply for a position, or appeal, or how often. Although not necessarily providing an exhaustive indication of what may arise, the general nature of an appeal under s.50 of the Public Service Act is indicated by the statutory obligation to make "inquiries into the claims" of the parties: sub-s. 50(8A) and (8D)(b). In the case of a State Promotions Appeal Committee, its obligation is to make "inquiries into . . . the claims " of the party or parties in its State. Such claims are, primarily at least, intended to be directed to efficiency and seniority: sub-s.50(6). It is not at the moment apparent to me why comparative seniority and efficiency could not be fairly established, at least in an appropriate case, by inquisitorial proceedings in which a Promotions Appeal Committee heard each party separately, and investigated, tested, and weighed his or her claims. The simplest example of such a case might be one in which all that fell for consideration was the parties' respective work records.

I agree that natural justice will generally require that each party to an appeal before a Promotions Appeal Committee will be entitled to know the substance of the case for the other party or parties. However, in my opinion, the nature and extent of what natural justice requires to be disclosed, when disclosure is desired by a party, will depend on the circumstances as a whole, including what each other party puts forward as his or her case. It may be generally most satisfactory, and least likely to produce further disputation, if everything desired is revealed. However, there may be various reasons why that is not always appropriate; it will not necessarily follow that there has been a breach of natural justice.

I have briefly outlined the nature of Mr Dawes' complaint. It is not particularly easy to be more precise since a marked reluctance to be drawn into detail was exhibited. It did emerge, however, that his dissatisfaction related to findings of the Central Promotions Appeal Committee that he and Mr Cannock were equal in respect of the fifth of the Selection Criteria and that Cannock was superior in respect of the second and sixth Criteria.

The attack on the finding of the Central Promotions Appeal Committee that Mr Cannock was equal with Mr Dawes in ability to communicate satisfactorily with Judges, the legal profession, and members of the public seemed to centre upon the omission of the Central Promotions Appeal Committee to make further enquiries of its own when it had conflicting reports concerning Mr Cannock from the original Selection Committee and a Referee on the one hand, and the Tasmanian Promotions Appeal Committee on the other. All else aside, the submission for Mr Dawes on this aspect of the matter overlooks that the Tasmanian Promotions Appeal Committee was part of the appellate process from the original Selection Committee and entitled to disagree with its views. I cannot perceive any essential unfairness in a Central Promotions Appeal Committee accepting, without further inquiry, views of a State Promotions Appeal Committee on an aspect into which it had enquired, at least in the absence of some indication that those views were questionable or a conflicting report from another State Promotions Appeal Committee. Indeed, one might expect any different course to be exceptional.

One aspect of Mr Dawes' attack in relation to the findings of the Central Promotions Appeal Committee that Mr Cannock was superior to Mr Dawes in respect of the second and sixth Selection Criteria seemed to involve Mr Dawes' disagreement with a view which it was said had been taken of "Administrative Knowledge and Staff Management Ability", and his assertion that, in considering his experience, insufficient regard had been paid to his experience outside the Family Court. I propose to say no more of that submission than that it is not material to any question properly in issue in these proceedings.

Mr Dawes' principal submission in connection with the Central Promotions Appeal Committee's findings that Mr Cannock was superior in respect of the second and sixth Selection Criteria was that he was not shown Mr Cannock's "evidence" and the Reports from the Queensland and Tasmanian Promotions Appeal Committees, and was not heard by the Central Promotions Appeal Committee. Pushed to particularity, Mr Dawes nominated the following matters which are mentioned in Mr Cannock's statement in support of his appeal and the reports concerning him:

(i) Mr Cannock's performance of "higher duties", apparently without any increased remuneration;

(ii) the staff of 13 in the Hobart Registry, Mr Dawes' point being that by no means all of these were under Mr Cannock's direct control as he was Deputy Registrar, not Registrar;

(iii) Mr Cannock's knowledge of the Family Law Act and Regulations, and the Family Court and its Registry procedures;

(iv) Mr Cannock's experience in the Sub-Treasury (Department of Finance), particularly perhaps in respect of the preparation of estimates, the scheduling of computer processing, and the size of the staff supervised by Mr Cannock;

(v) claims by Mr Cannock -

(a) to responsibility "for setting up and controlling administrative aspects of the Registry since the Court's inception";

(b) to working closely with the Administrative Officer "over all staffing and financial matters";

(c) to a "more than satisfactory" performance of the role of Deputy Registrar (Admin), "contributing to the high standard of the Hobart Registry", which high standard was said to be "evidenced by observations by visiting mainland Judges, satisfactory audit reports, good working performance with A-G's Management Services Branch and lack of complaints from public or practitioners";

(d) to deep involvement in the present Registry accommodation, and assistance in a review of plans for a new federal courts building due for completion in 1983;

(e) that he was not only 9 years senior to Mr Dawes but that Mr Dawes "did not join the Family Court as a Regional Deputy Registrar until 1977", Mr Dawes' point being that he had extensive experience, including Court experience, prior to becoming a Deputy Registrar of the Family Court;

(f) that Mr Cannock had "superior and relative efficiency" compared to Mr Dawes; and

(g) that Mr Dawes had been favoured by the original Selection Committee because he was a local applicant (i.e. from Queensland);

(vi) allegedly inconsistent assertions by Mr Cannock as to the importance of various functions such as "court listings";

(vii) comment laudatory of Mr Cannock from Family Court judges.

In Dixon v. Commonwealth of Australia (1981) 3 A.L.D. 289, the Full Court said at pp 294-295 -

"In the forefront of the rules of natural justice which are prima facie applicable to the exercise of such a statutory power, there lies the obligation to give to a party liable to be directly affected by the decision, the opportunity of being heard. Here again, the precise scope of the obligation will vary according to the nature of the decision and the circumstances of the case. Ordinarily, in a case where a statutory decision depriving a particular individual of property, rights or legitimate expectations is in contemplation, the obligation to extend to him the opportunity of being heard will involve ensuring that he is given the opportunity of ascertaining the relevant issues and being informed of the nature and content of the material which is being considered against him."

In my respectful opinion, that passage correctly expresses the duty upon a tribunal which is required to act with natural justice by reference to an obligation to ensure to the parties appropriate opportunities, rather than an obligation related to disclosure irrespective of the attitudes and conduct of the parties themselves. The facts of Finch v. Goldstein were such that no occasion arose to make such a distinction.

Some of the matters referred to by Mr Dawes in Mr Cannock's statements and reports concerning him were merely argumentative, e.g. the assertion of local bias on the part of the original Selection Committee. Mr Dawes did not seek to show that any statement of fact was inaccurate. In any event, what were involved were only details. He had adequate knowledge of Cannock and his case to put his own case. Only one or two of the matters referred to by Mr Dawes were mentioned by the Central Promotions Appeal Committee in their reasons; for example the number of staff in the Hobart Registry. It is not credible that an experienced Committee, including the Deputy Registrar of the Family Court in Melbourne, would overlook such points as that there is also a Registrar at that Registry. Whilst proof of actual prejudice may not be necessary in order to show that natural justice has been breached it does not follow that it is unnecessary that there be at least some risk of prejudice or that regard may not be had to the degree of risk shown.

In any event, I do not consider that Mr Dawes was deprived of any relevant opportunity. He has been a Commonwealth Public Servant for many years. He is mature and experienced. He has been involved in a number of other promotion appeals. At all material times he knew of the detailed specification concerning the position which was laid down in the Duty Statement, Job Specification and Selection Criteria. He understood what was important in the choice between himself and Mr Cannock. He knew Mr Cannock and his public service background, including his position in the Hobart Registry. He knew the details of that Registry's operations. He understood the appellate process and that the Promotions Appeal Committees would have a statement from Mr Cannock, reports, etc. He knew that they would contain details of which he was unaware. He was under no misapprehension as to the course which was being followed or as to his rights.

I do not accept that Mr Dawes was inhibited by any misconception from taking any step; for example, from seeking to adduce other material in support of his claim; or from making any request, whether for access to Mr Cannock's material, or that reference to be made to Judges of the Family Court, or for a further hearing or otherwise. In my view, he did not think that the appeal would not be allowed without him being given some further opportunity to be heard. I am not persuaded that Mr Dawes was other than fully satisfied at the time with the procedures which were adopted or other than fully aware that if he wished different steps to be taken it was open to him to ask. In short, I am of opinion that he was not deprived of any opportunity to contest in the fullest sense Mr Cannock's appeal.

I have thus far glossed over Mr Cannock's position as the present incumbent of the disputed job. It is unnecessary to consider whether any unfairness to him in permitting Mr Dawes to seek a second chance to bolster up his claim when he had earlier been content to proceed to anticipated success by the procedures then followed would properly be considered as an aspect of natural justice or as part of a more general discretion to refuse relief under the Act.

In my opinion, the application fails and must be dismissed with costs.