Young, G.J. v Brennan, D.P

[1985] FCA 335

Re: GRAHAM JOHN YOUNG
And: DESMOND PATRICK BRENNAN; ROSS LLOYD HINTZ; ROBERT FROST THE CHAIRMAN;
MEMBERS OF DISCIPLINARY APPEAL BOARD FOR THE AUSTRALIAN POSTAL COMMISSION FOR
SOUTH AUSTRALIA and AUSTRALIAN POSTAL COMMISSION
No. G33 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Spender J.

CATCHWORDS

Administrative Law - judicial review - dismissal of officer of Australian Postal Commission - whether rules of natural justice observed in inquiry by the Disciplinary Appeal Board - severity of the punishment - whether regard may be had to prior employment history - Postal Services Act 1975, ss.61 and 65 - application dismissed.

Administrative Decisions (Judicial Review) Act 1977;

Postal Services Act 1975, ss.61, 65

Postal Services Regulations, Regns.19, 22, 24.

Postal Services By-Laws, By-Law 8.

Beck v. Thornett & Ors. (unreported Federal Court judgment of 31 August, 1984)

Local Government Board v. Arlidge (1915) AC 120

R. v. Thames Magistrates Court, Ex parte Polemis (1974) 1 WLR 137.

HEARING

ADELAIDE
#DATE 1:5:1985

ORDER

(1) the application be dismissed;

(2) the applicant to pay the respondents' costs, to be taxed if not agreed.

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

JUDGE1

This is an application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1975 ("the Act") to review a decision of the Disciplinary Appeal Board.

The Board is established pursuant to the provisions of the Postal Services Act 1975. The application is in respect of a decision of the members of that Board, the first respondents to this application, of 29 August, 1983. By that decision, they confirmed a decision of K.W. Faulkner, the delegate of the Australian Postal Commission of 21 December, 1982, dismissing the applicant from the service of the Australian Postal Commission, pursuant to the powers given to the Commission under s.61(11) of the Act and in respect of a charge laid under s.61(1)(f) of that Act. That charge had arisen out of an alleged breach by Mr. Young of By-Law 8(f) of the By-Laws made under the Act.

The circumstances in which the decision came to be made are these. On 16 November, 1982, the applicant was required to return from recreation leave. He failed to do that and thereby committed a breach of the By-Laws. On 25 November, 1982, he was charged pursuant to s.61 of the Postal Services Act with two charges:

(A) failing to fulfil his duty as an Officer in that, within the meaning of Section 61(1)(f), he committed a breach of the Postal (Staff) By-Laws applicable to him in that on the 16th day of November, 1982, he was, during his hours of duty absent from duty without the express permission of the Commission or his Officer in Charge in contravention of By-Law 8(f);

(b) failing to fulfil his duty as an Officer in that, within the meaning of Section 61(1)(f) he committed a breach of the Postal (Staff) By-Laws applicable to him in that on the 16th day of November, 1982 being prevented by illness or other emergency from attending for duty, did not, as soon as he may have done so, report the fact to his Officer in Charge in contravention of By-Law 8(g).

By letter dated 6 December, 1982 to the Acting Manager, Personnel Admin. Branch of the second respondents, the applicant advanced certain reasons for his not being able to report for duty on 16 November, 1982. The reasons related to a family bereavement and consequent matters arising therefrom. It is fair to say that the bereavement, which was of Mr. Young's grandmother, had occurred some time before the 16th and she was in fact cremated on the 9th, some several days before the day on which he was due to return to duty.

Pursuant to s.61(5) of the Act, Mr. K.H. Wait was authorized to hold an inquiry into the said charges. Having held that inquiry, he made a recommendation to the Australian Postal Commission, pursuant to s.61(9)(d) of the Act, that Mr. Young be dismissed from the Service.

On 21 December, 1982, notice in writing was given to the applicant, advising him that the charges had been found proved and that he was dismissed from the service of the Australian Postal Commission. That communication was under the hand of Mr. K.W. Faulkner, the State Manager for the Australian Postal Commission.

On 14 January, 1983, the applicant lodged a Notice of Appeal, pursuant to the provisions of s.65 of the Act, against that dismissal. That notice of appeal, which was filed without the assistance of legal advice, was on the grounds of:

(1) discrimination;

(2) harshness of decision under circumstances at the time.

If I may interpolate, at the hearing of this appeal, some criticism was directed to the nature of the proceedings leading to the notice of 21 December, 1982.

One such question is whether, in such an inquiry, reference may properly be made to the prior history and character of the person charged.

A second question is whether, pursuant to the requirements of natural justice, a person charged with an offence ought properly to be accorded not only the opportunity to make answer in relation to the charge, but also as to what penalties, if the charge be found proved, ought properly to be imposed.

It is not necessary for me to decide the matter, but I indicate that my impression is that, in a matter which has potentially as serious consequences as dismissal, not only is a person charged with a disciplinary offence of misconduct under the Act entitled, as the Act acknowledges, to make answer to the charge, but he ought also to be entitled to make submissions in relation to the appropriateness of any penalties to be imposed should such charge be proved.

I note that in the case of Beck v. Thornett & Ors., an unreported judgment of Mr. Justice Everett given in Canberra on 31 August, 1984, the circumstances there disclosed indicate that there had been a communication to the person charged with failure to fulfil her duty of the fact that the person conducting the inquiry was satisfied that the charge was proved, that further action was necessary against her, and that he intended to decide what such further action there would be in accordance with the provisions of s.56(d) of the Public Service Act 1922.

That approach seems, if I may say so, implicitly to acknowledge that, consistent with the requirements of natural justice, there ought to be the right to make submissions as to the appropriate further action which the authorized officer is empowered to either decide or recommend.

Be that as it may, the appeal to the Disciplinary Appeal Board was not on the basis that there had been a denial of natural justice to him in that he was prevented from making appropriate submissions on penalties, although that was an aspect canvassed at the first day of the hearing of that appeal. It is plain that what was sought to be challenged was the severity of the punishment that had been imposed.

On 8 February, 1983, the applicant's appeal came on for hearing before the first respondents. On that day he was represented by a solicitor, Mr. Wilson, who indicated that application was to be made to the Federal Court for a review of the decision under appeal and, also, for interlocutory relief directed to preventing the Disciplinary Appeal Board from continuing with the appeal.

Mr. Wilson was supplied on that occasion with a folder of documents containing both the material relating to the previous employment history of the applicant and the documents relating to the charges under consideration. I note in that regard that regn.24(1) of the Postal Services Regulations provides:

"Copies of all documents intended to be used at the hearing of a disciplinary appeal shall, where practicable, be furnished to the appellant by the Commission not later than 7 days before the date fixed for the commencement of the hearing."

Regulation 24(2) provides:

"Where a copy of a document intended to be used at the hearing of a disciplinary appeal is not furnished to the appellant in accordance with sub-regulation (1), he is entitled to inspect that document."

On 29 August, 1983, the applicant's appeal was relisted for hearing before the first respondents. On that day, an adjournment, sought by the applicant's solicitor, was refused. That aspect of the Disciplinary Appeal Board proceedings is a major question in this review.

The Disciplinary Appeal Board constituted by the Chairman of the Disciplinary Appeal Board, Mr. Brennan, the Commission representative Mr. Hintz, and the officer representative, Mr. Frost, proceeded to hear the appeal.

In the course of that appeal, it allowed Mr. Young to amend his notice of appeal in respect of the charge under By-Law 8(g) and the Board set aside the decision for dismissal in respect of that charge. However, it confirmed the decision with respect to the charge under By-Law 8(f).

In its written statement of reasons dated 29 August, 1983, the Board said:

"No real evidence was given to the Board but, by agreement between the parties, a bundle of documents (Exhibit A) was tendered."

Later in those reasons the Board said:

"In relation to the penalty imposed with respect to the charge laid under By Law 8(f) the Board notes that the Appellant has had a long unsatisfactory previous employment history. On 4 March 1982 he was fined $20.00 on each of three charges of wilfully disobeying a direction given to him as an officer by a person having authority to give the direction. In addition, he was counselled on no less than six occasions between October 1978 and February 1982 regarding his attitude to and unsatisfactory performance of his duties. Furthermore, between February 1978 and August 1982 he was warned in writing and cautioned on a number of occasions regarding his poor work performance.

The Board is satisfied that the Appellant has been given every opportunity and encouragement to carry out his duties diligently and efficiently but has not availed himself the opportunity so offered. The Board is also satisfied that he had no valid reason for not attending for duty on 16 November 1982.

In these circumstances the Board is firmly of the view that the penalty imposed by the delegate on the charge laid under By Law 8(f) is not excessive. Accordingly, it confirms the delegate's decision that the appellant be dismissed from the Service of the Commission."

Counsel for the applicant first submitted that the applicant had been denied natural justice when the Board refused the adjournment sought by his solicitor on 29 August, 1983, in that, in the circumstances then present, he was effectively precluded from making proper defence to the charge.

It is of course clear that natural justice demands that a person be given the right properly to answer a charge brought against him. As Lord Widgery C.J., said in R. v. Thames Magistrates Court, ex parte Polemis (1974) 1 W.L.R. 1371 at 1375:

"To start with, nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court and, of course, the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it."

Lord Widgery C.J., later referred to the observation by Viscount Haldane L.C., in Local Government Board v. Arlidge (1915) A.C. 120 at 132, where he said:

"My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made."

No quarrel of course can be made with the appropriateness of those observations.

The factual circumstances here, however, are that:-

(a) notice of appeal was lodged in January, 1983;

(b) the hearing was adjourned in February, 1983; (c) notice of the resumed hearing on 29 August, 1983 was given on 22 August, 1983; and

(d) the solicitor for the applicant had access to the documents which are contained in Exhibit A at least from February, 1983 onwards.

The appeal was one against the severity of the punishment that had been imposed. It may be that the material that was presented to the Board on the applicant's behalf on the 29 August, 1983 was not either as full or as researched as might have been possible. However, the fault certainly does not lie with the Board and, in my opinion, no error has been demonstrated in respect of its refusal to grant the further adjournment sought by the applicant's solicitor at that resumed hearing.

The next submission to which reference should be made was that the Board misconstrued the provisions of s.65(6) of the Act. This submission involves an associated submission in respect of the powers of the inquiring officer at first instance. In respect of disciplinary action, s.61 of the Act provides a quite detailed description of the procedure that is required to be followed.

Under s.61(2):

"If a supervisor of an officer has, at any time, reason to believe that the officer may have failed to fulfil his duty as an officer, the supervisor may require the officer to furnish to the supervisor, in writing, an explanation of the matters alleged to constitute the failure and may, after consideration of any explanation furnished by the officer, if he is of the opinion that the officer has failed to fulfil his duty as an officer -

(a) counsel the officer; or

(b) furnish a report concerning the matters, together with any explanation furnished to him, to an officer authorized for the purposes of sub-section (3)."

Where such a report has been furnished, that authorised officer must decide whether the officer should be charged and, in that case, must deliver the charge to that officer by writing under his hand. On request, a copy of the charge is also to be furnished to the organization to which the officer belongs.

Where an officer is charged with misconduct, the officer authorised under sub-section (3) is required to hold an inquiry without undue delay into the charge. A formal hearing is not required but the officer is to be given the opportunity to state in writing within seven days or such further period as may be allowed whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters.

He also has the opportunity of making a further oral statement to the officer holding the inquiry and, if such a statement is made, a written record is to be made of that further statement.

Section 61(9)(d)(iii) then provides:

"(9) Where the officer who held an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer or cause a supervisor of the officer to counsel him, or, if he is of the opinion that other action is necessary -

. . .

(d) recommend to the Commission in writing -

. . .

(iii) that the Commission dismiss the officer from the Service."

Section 61(10) provides:

"(10) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, he shall furnish to the Commission, with his recommendation, full particulars of his findings in relation to the facts giving rise to the misconduct."

Section 61(11) provides:

"(11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section (10) counsel the officer or if it considers that other action is necessary -

(a) admonish the officer;

(b) decide -

(i) to give effect to the recommendation; or

(ii) to take any other action that could have been recommended under that paragraph; or

(c) give a direction referred to in paragraph (9)(b) or (c)."

Section 65(6) provides:

"(6) Where an officer appeals under sub-section (1) against a direction or decision on the ground that the action to be taken in accordance with that direction or decision is excessively severe, evidence may be given on the hearing of the appeal

(a) if the officer was, under section 62, suspended without salary prior to the giving of that direction or the making of that decision - of any loss of earnings arising from that suspension;

(b) if the officer is to be transferred to another position - of the expenses that will be incurred by the officer in connexion with that transfer; and

(c) of matters relating to the previous employment history and general character of the appellant."

It was submitted by counsel for the applicant that no power exists under s.61 of the Act for the authorised officer conducting an inquiry pursuant to that section to have regard to the appellant's previous employment history and any disciplinary breaches in that history. It was further submitted that he is specifically required, under s.61(10), where he makes a recommendation that the Commission dismiss the officer from the Service, to furnish to the Commission "full particulars of his findings in relation to the facts giving rise to the misconduct".

Counsel further submitted that this requirement is an indication that it is only the factual circumstances of the misconduct the subject of the charge to which the authorised officer conducting the inquiry should have reference.

Furthermore, the words in s.61(11), "after consideration of the particulars furnished in sub-section (10)" indicate that the Commission similarly is to consider only the findings in relation to the facts giving rise to the misconduct. The Commission may not, therefore, in making the decision required by s.61(11) have regard, in determining what action should be taken, to the officer's previous employment history and, in particular, any previous breaches of discipline by the officer.

It was further submitted by counsel for the applicant that s.65(6) ought properly to be read down so that the matters referred to in s.65(6)(c) apply only to matters favourable to the appellant and not encompassing matters adverse to him.

That submission, it is said, is supported by the nature of the material referred to in s.65 (6)(a) and (b) of which evidence may be given on the hearing of an appeal.

First, in my opinion, that limited construction contended for in respect of s.65(6) is not correct. The Disciplinary Appeal Board is enjoined by regn.19 of the Postal Services Regulations to inform itself in such manner as it thinks fit and the procedure to be followed shall be as determined by the Board. That regulation further provides that the Board is not bound by the rules of evidence and is to proceed without regard to legal forms or solemnities.

The nature of the proceedings before the Disciplinary Appeal Board in my opinion is similar to that considered by Mr. Justice Everett in Beck v. Thornett & Ors. (supra).

Regulation 22 of the Postal Services Regulations provides:

"At the hearing of a disciplinary appeal, the appellant or the Commission may be represented by counsel, a solicitor, or agent who may examine witnesses and address the Disciplinary Appeal Board hearing the appeal on his or its behalf."

Section 65(5) provides:

"A Disciplinary Appeal Board shall hear each appeal submitted to it under subsection (1) and may confirm, vary or set aside the direction or decision against which the appeal is made."

In relation to not dissimilar legislation, Mr. Justice Everett, having examined that legislation, concluded:

" ... the alternative appellate procedure under the 1922 Act prescribes a de novo hearing, which involves the exercise of original jurisdiction. I have already canvassed the details of that procedure. It cannot, in my view, be described as other than completely fair and just. In particular, it enables the merits of charges against a nursing sister who held a senior position in a public hospital to be judged by an appropriate tribunal, with a right of representation of the parties by counsel and subject to the accepted safeguards of the adversary system of litigation between parties."

Further, in my opinion, while it is not precisely a question involved in the decision under review, an authorized officer conducting an inquiry under s.61 is not precluded from having regard to the prior employment history of the person charged in considering what course he should adopt under s.61(9) of the Act. Under that sub-section, he has the option of counselling the officer, causing a supervisor of the officer to counsel him or, if he is of the opinion that other action is necessary, adopting one of four broad areas of action, including admonition, fining, directing a reduction in salary, or making recommendations to the Commission in respect of transfer or dismissal from the Service.

Where the Act directs that choice to be based on whether he is of the opinion that that action is necessary, it seems to me that regard may properly be had to all the circumstances as they relate to the person charged. Such an interpretation accords not only with common sense but, more directly, has the effect of promoting a fair and efficient method of disciplinary supervision and efficient conduct of officers of the Australian Postal Commission.

To require a person to make such a recommendation on incomplete facts ignoring what may be highly material questions, not all of which need necessarily be adverse to the officer, seems to me to be a conclusion to which one ought not lightly come. Equally, it would be odd that s.65(6) should permit the Disciplinary Appeal Board to have regard to matters relating to the previous employment history and general character of the appellant if regard to those matters were properly to be denied the authorized officer conducting an inquiry into charges against an officer of the Service.

In my view, no error has been shown in the conduct of the proceedings by the Disciplinary Appeal Board in having regard to the prior history of the applicant in determining whether it should vary, set aside or confirm the decision of the Commission to dismiss him from the Service.

In my opinion no basis has been shown, pursuant to the Administrative Decisions (Judicial Review) Act 1975, to disturb the decision of the Disciplinary Appeal Board confirming the dismissal of the applicant from the service of the Australian Postal Commission. I, therefore, dismiss the application; the applicant to pay the respondents' costs, to be taxed if not agreed.