a CATCHWORDS Administrative Law - Judicial Review of Adminstrative Decisions - Public Service Promotions Appeal on the ground of superior efficiency - failure of the Promotions Appeal Committee to supply the appellant with a copy of material which the Committee had before it resulting in misunderstanding between the Committee and the appellant - failure of Committee tc supply the appellant with the substance of the matters put forward by the other contender for the position - failure of Committee to supply the appel- lant with the identity of the referees of the other con- tender for the position - whether a breach of the rules of natural justice Public Service Act 1922; Adminstrative Decisions (Judicial Review) Act 1977; s5, 16 Ansell v Wells & Ors (1983) 435 ALR 41 Finch v Goldstein (1981) 36 ALR 287 Dawes v Gesling (1982) 4 ALN No 129 Rv Wells (1982) 41 ALTR 31 Hamblin v Duffy (No. 2) (1981) 37 ALR 297 ROBERT CHARLES MOSTYN HURT v TERENCE RICHARD ROSSALL & ORS ACT G75 of 1982 CORAM: Sweeney, Kelly & Neaves JJ 22 July 1983 Canberra UN THE PEDERAL COURT OF AUSTRALTA No ACT G75 of 1982 AUSTRALTAN CAPTTAT TERRITORY DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDCE OF THE FEDERAI. COURT OF AUSTRALIA ROBERT CHARLES MOSTYN HURT Appellant and TERENCE RICHARD ROSSALL DAVID FREDERICK BRUCE JOHN ARTHUR CA?ORN First Respondents ROBERT WILLIAN COLE ROBERT JOHN YOUNG JOHN VINCENT MONAGHAN Second Respondents CHRISTOPHER EDMUND JEFFREY SUMMERS GODIN (added by leave as a respondent to the appeal) ORDER JUDGES MAKING ORDER: Sweeney, Kelly and Neaves JJ. DATE OF ORDER: 2D July 1983 VUHERE MADE: Canberra THE COURT ORDERS THAT: 1. i) the appeal be upheld and the order of the court of 29 September 1982 be set aside. AY the decisson of the first respondents of LO September 1981 allowing Mr GLodwin's appeal aparnst the provisional promotion of the appellant ta Position No 3015 be qutshca | /3. \ 3. 4. the cancelling of that provisional promotion and the promotion of Mr Godwin to thal position be quashed. Mr GCodwin's appeal be dealt with according to law by a Promotions Appeal Committee constituted by persons other than the first respondents. the taxed costs of and incidental to the application for an order of review and to the appeal to the Full Court including the notice of motion that Mr Godwin be added as a respondent be paid by the second respondents. the taxed cots of Mr Godwin of and incidental to the notice of motion be paid by the appellant, with an order over, in respect of such costs, in favour of the appellant against the second respondents, IN THE FEDERAL COURT OCT AUSTRALIA No ACT G75 of 1982 AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGU CF THE FEDERAL COURT OF AUSTRALIA ROBERT CHARLES MOSTYN HURT Appellant and TERENCE RICHARD ROSSALL DAVID FREDERICK BRUCE JOHN ARTHUR CAPORN First Respondents ROBERT WILLIAM COLE ROBERT JOHN YOUNG JCHN VINCENT MONAGHAN Second Respondents CHRISTOPHER EDMUND JEFFREY SUMMERS GODWIN {added by leave as a respondent to the appeal) Coram: Sweeney, Kelly and Neaves JJ: Sweeney J REASONS FOR JUDGMENT 2® July 1983 This is an appeal from an order of a single judge of this court mad2 on 29 September 1982 py which his Honour dismissed an application made by Robert Charles Mostyn Hurt '"the appellant"), an officer of the Commonwealth Public Service, under S.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). [fn that application the appellant had sought an order of reviev of the decision of the first respondents allowing the appeal of Christopher Edmund Jeffrey Summers Godwin "against the provisional promotion of the appellant to position No3015 and the conduct of the second respondents in cancelling the provisional promotion" of the appellant to that position and promoting Mr Godwin to 1t. The first respondents were the three members of the Promotions Appeal Committee, ("the Committee") including a representative of the Department of Defence and a representative of the Association of Professional Engineers of Australia. Two of those respondents had engineering qualifications. The second respondents were commissioners of the Public Service Board sitting as the Public Service Board under the Public Service Act 1922. In his application to this court at first instance for an order of review the appellant stated trat he was aggrieved by the decision hecause:- "lL. The First Respondents did not act lawfully in the procedures which led them to decide that Christopher Godwin was of superior efficiency to the Applicant. 2. The Second Respondents were not 'justified in their conduct because the First Respondents did not act lawfully." He stated the grounds of his application as follows: "y. A breach of the rules of natural Justice occurred in connection with the making of the decision by the First Respondents. The making of the decision by the First Respondents was an lmproper exercise of the power conferred by the Public Service Act 1922 in that- {a) the First Respondents fa1rled to take relevant considerations into account in the exercise of that power; and (b) the First Respondents exercised the power ina way that constituted abuse of the power." On his appeal to the Full Court the appellant claimed~ l. 2. That this appeal be allowed and the order of 29 September 1982 be set aside. That the decision of the first respondents of 10 September 1981 allowing the appeal of Mr Godwin against the provisional promotion of the appellant to position No. 3015 be set aside. That the conduct of the second respondents cancelling the provisional promotion of the appellant to position No. 3015 and promoting Mr Godwin to the position be declared void and of no effect. That the appeal be dealt with by a Promotions Appeal Committee constituted by persons other than the first respondents according to Law. That the second respondents pay the costs, of the appellant before the trial judge. 4. Such further or other order or relief as the court thinks fit. At the hearing of this appeal Mr. D.J.M. Bennett OC, who Appeared with Mr T.M. Johnstone for the appellant, was granted Leave to add Mr Godwin as a respondent, and Mr S. Wilcox announced his appearance for him. fir P.G. Hely, QC and Mr J. Spigelman appeared for the second respondents and announced that the first respondents simply submitted to such order as the Court might make. Before us, the appellant relied upon only two of the six grounds relating to natural justice which had been raised at first instance. They were:- "}. At the promotions appeal hearing the Committee did not inform Mr. Hurt of all of the material before it. In particular, the avoplicant did not have access to some matter concerning himself, or to anformation concerning Mr. Godwin and the case being presented by him. Mr. Hurt thus did not, so 1t 1s submitted, have knowledge of any material before the Committee which may have been adverse to him, and was not, to use his words, "informed of the supstance of the case I had to meet." 2. The Committee did not afford Mr. Hurt a full opportunity to develop his own case. In particular, he did not have adequate opportunity to speak to the change in job classification, and, more aiumpertantly, to the fact that despite the change in job classification the duties of the new position were basically the same as those of the old." « Ansell v Walls and Others, (1983) 43 A.L.R. 41 was decided by a ful] court of this court after the respondents had made the decisions now in question. In that case, all three members of the court were of opinion that a Promotions Appeal Committee in making "full inquiries" into the claims of the respective parties, as required by the Public Service Act 1922, had to act fairly according to the appropriate principles of natural justice, which were flexible and might vary from case to case. Franki, J. fat p-.47) said: "It was not suggested that there was any reason why the whole of the departmental report to the chairman of the Committee should not have been made avarlable to the appellant. Tn general, unless there 1s some compelling reason to the contrary, the whole of the departmental report should always be made available to an appellant as long before the hearing as is reasonably practicable. I do not regard the failure to request access to the whole of this report as critical. I agree with the learned judge that the relevant requirements of natural justice were not satisfred in relation to that part of the departmental report which did not deal with the appellant. Merely reading the report to the appellant, instead of providing her with a copy, is not a satisfactory procedure, and, of itself, in this case 1t may have been a sufficzrent departure from fair practice to constitute a denial of natural justice. Where the question of comparative efficiency 1s involved I consider that the substanc® of matters put forward about or by the "other party" must be known in order to enable each party to put her case. I consider that at Jeast the substance of the written statement by Mr Mungoven (the provisional promotee to the position the appellant was seeking' and the substance of any relevant oral submissions and answers to questions at the hearing before the Committee shoulcé have been available to the appellant. By this I do not mean that a copy of the written statement, or the words of the oral submissions and answers should have been provided to the appellant, but that the substance of anything relevant ought to have been available to her." Davies J (at p53) said:- "As Fitzgerald J said in Dawes v Gesling (1982)4 ALN No 129: "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; 1t will not necessarily follow that there has been a breach of natural justice." > In the present case, the failure to disclose to Miss Ansell (the appellant) prior to the interview the contents of the report dated 19 August 1977 given by the secretary of the relevant Department .to the chairman of the Promotions Appeal Committee led to the very problem which the rules of natural justice seek o to avoid. The report summarized the relevant facts and the Department's view of the contending parties. It provided significant material for the Committee to take unto account and it expressed a view which strongly favoured Mr Mungoven. There appears to be nothing in the report which could not have been disclosed to Miss Ansell. As to the provisional promotee, Mr Mungoven, the report said: "He was rated a very suitable candidate for promotion to the position in question." There was nothing in the report concerning Mr Mungoven which could not have been disclosed. Moreover, there was no reason why there should not have been disclosed to Mass Ansell the fact that,, of the original applicants for the position, Mr Mungoven had been placei at the head of the field while Miss Ansell had been placed sixth. Nor does it seem to me that there was any reason why the criticisms or Limitations that were stated in the report with respect to Miss Ansell's work should not have been disclosed to her, or to the other party. If Miss Ansell had known of those matters before she had gone to her interview, she would have been fully prepared. However, Miss Ansell was not advised of the contents of the secretary's report and was not aware, prior to the interview, of the substance of the matters contained therein. Nor was she aware of the incorrect statement therein that "departmental applicants were counselled on any matters which may have militated against their selection". In the result, the tunterview which Miss Ansell had with the Promotions Appeal Committee was an unsatisfactory and unfair interview so far as she was concerned." . On the question of the claim by an appellant to superior efficiency, Davies J (at p52) cited with approval the observations of Ellicott J, in Finch v Goldstein (1981) 36 A.L.R. 287 at p301l:- "The duty of the Committee is to make full inquiries into the claims of the parties. In a case such as this, the issue is whether one party (the appellant) is of superior efficiency to the other (the officer promoted) and this will inevitably involve weighing one person's efficiency against that of the owner. Each 1s, in my view, entitled to an opportunity to make his or her case on this 1ussue. In order to do so, T think it is fundamental that each be entitled to now in substance what 1S being put on behalf of the other, for 'vithout such knowledge, how could a party adequately put a case that he or she is superior in efficiency to the other. Where as here superior efficiency 1s the issue the alleged efficiency of one 1s in a real sense part of what 1s put against the other."" Davies J went on to say (at p52): "As the issue of consideration is that of relative efficiency, each party must be given a fair opportunity not only to promote his own efficiency but also to state why he considers that efficirency to be superior to that of the other contender for the position. What must be done in each particular case will depend upon the circumstances of the case. As Tucker LJ said in Russell v Duke of Norfolx (1949) 1 AlJ ER 109 at 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that 1s being dealt with, and so forth." But, ordinarily, a contender for a position will not have an opportunity to put fairly his or her case on relative efficiency unless he or she is given due notice of the substance of the case put by the other contender for the position. And, ordinarily, a contender for a position will not have a fair opportunity to put a case unless he or she is given due notice of the adverse factors which will be considered against him or her. Such notice should be given in time sufficient to enable the party properly to prepare his or her case." Lockhart, J. (at p62) was of opinion that "each party Must be told the substance of the case being advanced by the other party or parties. So far as practicable, this unformation should be given to him in writing and before he 1s interviewed". His Honour said (at pp63, 64): "In the present case, the Supreme Court was clearly correct in holding that the respondents failed to disclose to the appellant, prior to the determination of her appeal, the report of the relevant Department of 19 August 1977, the weitten statement made by Mr Mungoven to the Committee and the oral submissions and answers to questions given by Mr Mungoven at the hearing by the Committee. Plainly the Committee was bound to inform the appellant of the adverse statements made about her in the Department's report of 19 August 1977. The appellant was entitled ta .%& informed of these adverse statements before her interview commenced on 5 October 1977. The members of the Committee thought that the appellant was aware of those criticisms before the commencement of her interview and that she had been "counselled" with respect to them. In fact she had not been "counselled". She heard of the criticisms for the first time during her interview on 5 October 1977. a a a 10. oe Although the appellant may have grasped the essentials of the criticisms when confronted with them during her interview by the Committee, she was nevertheless shocked and surprised by them. In my opinion the fallure of the Committee to disclose to the appellant, prior to her interview, the substance of the material before the Committee constituted a breach of the rules of natural justice." The hearing before us proceeded on the cammon view that a person in the position of the appellant was entitled to the benefit of the appropriate principles of natural justice, which are flexible and may vary from case to case. In accordance with its then current practice, the Committee did not make available to the appellant copies of the official documents which constituted its file in the matter. One of those documents, which was an attachment to the departmental report, was a copy of the duty statement of the new position, which was incomplete, in that its reverse sid@ was completely blank, whereas the original of this duty statement contained on its reverse side a Position Evaluation, including the words - "Basically the duties approved for this new position remain unchanged." The appellant had a complete copy of the duty statement, uncluding those words, and when he was told by the Committee, during the course of his interview, that each of them had a copy of the duty statement, he assumed that it was complete, just as his copy was. Had he been given a copy of the duty statement, in the incomplete form in which it was supplied to the Committee, he would have been able to draw the defect to their attention. Not having this opportunity, he mistakenly believed throughout the interview that, because of the words contained in this official statement, 1t was common ground between him and the Committee that basically the duties approved for the new position remained unchanged. The appellant was not made aware by the Committee that his application for the redesignation of the position was not in the material before it. It was submitted that this contributed to the mistaken belief held by the appellant, as the regulation 6 application also made it clear that there was basically no difference betweeen the duties of the two positions. Mr Bennett relied upon paragraphs 5 and 6 of the affidavit of Mr Bruce, a member of the Committee, which read:- "5. In view of the previous experlence of both officers and the references, the interviews were conducted in an open forum manner. Each was of at least one hour's duration. Each officer was encouraged to discuss his previous experience, the duties of the new position, to; compare these with the previous duties of the Class 11 position, and to describe his approach towards the way ahead in carrying out these duties. Both officers were given every opportunity to express themselves on the related subject matter and encouraged to speak on any other points which they felt were relevant to the appeal. 6. In spite of much prompting Mr Hurt appeared unable to comment upon the difference between the duties of the two positions, the reasons for the change in duties (apart from the additional salary aspect), nor did he seem to fully comprehend the zmplications of the new Duty Statement relating to the Engineer Class 5 position. This was difficult to understand as he himself had anitiated the Mr 12. chang=- Bennett also cited paragraphs 6 and 7 of the affidavit of Mr Caporn, also a member of the Committee, which were in the follow1ng terms: "6. 7. In As a starting point Mr Hurt was asked by Mr Rossall to talk to the duty statement detailing his experience and the reasons, as he saw it, for the need for the reclassification. It was in this context that I recall the comments referred to in paragraph 5 of the Affidavit of Robert Charles Mostyn Hurt sworn the 22nd day of December 1981 ("the Applicant's Affidavit") Mx Hurt sa1d words to the effect "Let's be honest, the main reason for the reclassification was that an Engineer Class 5 gets paid some $1,500.00 more than a Class 11 Clerk". Me Rossall said: "Surely that's not what you told the Establishments Inspector!". Mr Hurt then went on to say that in his view the duties were what he had been doing for some time and had not changed. He failed, or was not prepared to satisfactorily answer questions aimed at elaborating the difference in duties described un the duty statements for the Engineer Class 5 or Clerical Class ll. Mr Hurt described the duties of the job as he saw zt as unchanged and principally administrative/ Managerial that required the occupant to be a "deputy second division officer". This did not fully accord with the formal descriptions of the positions as described by the duty statements." his notes made in relation to the hearing the chairman of the Committee, 'ir Rossall, observed that the appellant "did not sound at all convincing on his understanding of the new duties as Eng. 5" and that he had very good "referee reports but we got the impression they related to his previous Class Ll duties not the new Engineer Class 5." In my opinion, the appellant and the members of the Committee were at cross purposes in reference to the duties .f the old and the new positions. They were looking to the appellant to give an account of the differences between the duties, whereas he thought that 1t was common ground that they were basically unchanged. This misunderstanding between the Commttee and the appellant resulted from the fact that he did not have a copy of the material before them, and probably led him to be unresponsive to thelr questions which were designed to afford him an opportunity to elaborate upon differences in the dutires. It seems to me that his reaction to these questions was, in the minds of the members of the Committee, a material factor in leading them to decide against him. The learned trial judge dealt with the question of the duty statements, observing that "these documents (at least those relating to the new position) were not filled in on the reverse side." [lizs Honour went on say that at least two members of the Committee "were aware that the form made provision for its reverse side to be completed ,(as appropriate) and the nature of the material usually found there. Nor could there be any doubt that all three members of the Committee were well aware that the new position had been created from one which was very similar, and that Nr Hurt had been in the old position since 1973. They were also aware that he had sought the reclassification." However, the appellant's difficulty arose, not from thease circumstances, 14. but from his belief that the members had before them a copy of the duty statement in the form in which he had it. In the circumstances of the present case I consider that the failure to supply the appellant with a copy of the duty statement of the new position in the form in which the Committee had it amounted to a denial of natural justice, and that it materially affected his chances of success before the Committee. I turn next to consider the appellant's ground that he did not have available to him at the hearing before the Committee the substance of matters put forward by Mr Godwin on the question of his claim to superior efficiency, which was contained in his document dated 31 august 1981, which unecLuded the following statements: "It is considered that the Position requires a balance of engineering management experience and competence of a high order combined with sound knowledge and experience of the principles and applications of Automatic Data Processing (ADP) to the management of engineering organisations and engineering tasks and functions, and that a person lacking in higher management experience cannot carry out the duties and responsibilities of the position in an effective manner. I consider that my knowledge, experience and training over the last fifteen years has developed me to a level of efficiency across the Full spectrum of the requirements of the Position, which iS superior at Class 5 Engineer level to that of the provisional promotee to the Position." ° Those statements were plain assertions of the superior efficiency upon which he based his appeal Section 50(4) of the Public Service Act 1922 provides, inter alia, that in this section "efficiency" means "Special qualifications and aptitude for the discharge of the office to be filled, together with merit diligence and good conduct." Had the appellant been provided with a copy of Mr Godwin's document, or with the substance of 1t, 1t would have given him the opportunity to answer the contention, which was at least implicit ain Mr Godwin's statement, that the appellant was a person lacking in higher management experience and thus incapable of carrying out the duties and responsibilities of the position in an effective manner. He would have had the opportunity to contend that the position did not require the qualities set out by Mr Godwin, or that, 1£ it did, Mr Godwin was not his superior in relation to them, and that Mr Godwin's knowledge, experience and training over the last fifteen years as detailed in the document, had not developed him to a level of efficiency across the full spectrum of the requirements of the position which was superior at Class 5 Engineer level to that of the appellant. In my opinion, the fact that the appellant was rot told of those statements or the substance of them hampered him in the presentation of his case and in the circumstances amounted to a denial of natural justice. There appears to have been no reason, other than the then current practice of the Committee, why a copy of Mr Godwin's document and its enclosures, other than the references to his proposed referees, should not have been supplied to the appellant before the hearing. Mr Bennett did not seek to rely upon the argument, put below, that the appellant should have been given the opportunity to hear "Mr Godwin's evidence and to cross-examine him upon it, nor did he submit that he should have been shown ' 16. the references provided in support of Mr Godwin's appeal. He did, however, contend that the identity of those referees should nave been disclosed to the appellant. In my opanion, in the circumstances of this case, which included the fact that one of the referees was the immediate superior of the occupant of the disputed position, considerations similar to those which made it undesirable to disclose the references themselves, justified the preservation of confidentiality in respect of the names of referees. In the last paragraph of his reasons for judgment, the learned trial judge said: "In my view, there was no denial of natural justice. It is certainly not a case in which relief should be granted on that ground. The Committee did not fail to consider relevant material. Accordingly, the application should be dismissed." It seems to me that his Honour clearly stated his findings that there was no denial of natural justice to the appellant and that the Committee did not fail to consider relevant material. When his Honour said - "It as certainly not a case in which relief should be granted on that ground," he was not expressing a view that, although satisfied that there was such a denial, or failure to consider relevant material, in the exercise of a judicial discretion he did. not think that he should grant the relief sought. Accordingly the present case is not one in which it 2S appropriate to apply the considerations which become relevant when a court of appeal is asked to review the exercise of a judicial discretion. . In my opinion, for the reasons stated above, a breach of 17. the rules of natural justice, within the meaning of s.5(1)(a) of the Act occurred in connection with the making of the decision here in question and the case 1s one in which the court should in its discretion make an order pursuant to s.16(1)(a) of the Act quashing or setting aside that decision. I would order that: 1. the appeal be upheld and the order of the court of 29 September 1982 be set aside. 2. the decision of the first respondents of 10 September 1981 allowing Mr. Godwin's appeal against the provisional promotion of the appellant to Position No 3015 be quashed. 3. the cancelling of that provisional promotion and the promotion of Mr Godwin to that position be quashed. 4e Mr Godwin's appeal be dealt with according to law by a P,omotions Appeal Committee constituted by persons other than the first respondents. 5. the taxed costs of and incidental to the application for an order of review and to the appeal to the Full Court including the notice of motion that Mr Godwin be added as a respondent be paid by the second respondents. 6. the taxed costs of Mr Godwin of and incidental to the notice of motion be paid by the appellant, with an order over, in respect of such costs, in favour of the appellant against the second cs 18. respondents. I would make no order as to Mr Goodwin's costs in relation to the appeal to the Full Court. The order that the further hearing should take place before a differently constituted Committee is not intended to suggest any personal criticism of the first respondents. I certify that this and the seventeen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Sweeney. Reker Co le Associate. o Dated: 2ZO- ?7?-%$3 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACF G75 of 1982 DISTRICT REGISTRY ) ) ) ) ) ) ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA Between: ROBERT CHARLES MOSTYN HURT Appellant t And: TERENCE RICHARD ROSSALL DAVID FREDERICK BRUCE JOHN ARTHUR CAPORN First Respondents And: ROBERT WILLIAM COLE ROBERT JOHN YOUNG JOHN VINCENT MONAGHAN Second Respondents And: CHRISTOPHER EDMUND JEFFREY SUMMERS GODWIN (added by leave as a respondent to the appeal) CORAM: Sweeney, Kelly and Neaves JJ. AG July 1983. REASONS FOR JUDGMENT KELLY J: I have had the advantage of reading the reasons for judgment prepared by Sweeney J. I agree with those reasons and with the orders he proposes. The earlier decisions of this Court to which Sweeney J. refers establish that a Promotion Appeals Committee is required to act in accordance with the Sot % . i ~ : 2 - <é v , -2- principles of natural justice. If the circumstances of a particular case disclose that a Committee has failed to take into account something it should have because, due to some oversight on its part, it does not have all relevant and pertinent material furnished by a party appearing before it there will be, in my opinion, a denial of natural justice if that party does not know that the Committee does not have possession of that material, relies on the Committee's possession of 1t, believing that the Committee will take it unto account, and presents his o. her case on the basis that the Committee is fully acquainted through that possession with all the relevant and pertinent Facts. In those circumstances, the Committee and the party appearing before it lack that common ground which is essential to the adeguate presentation by the party to the appeal of his or her case and the adequate and fair consideration of that case by the Committee. mane I csrtily that white ani the c~ve preceding pages ae a true covy of the Reasons for Judgment herein of his Honour Mr. Justacelziucy . Associate Dated: 20-7-~<a3 tr ert tee ee en na Sr ken ee et a enna Set ey IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRTUTORY No. ACT G75 of 1982 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : ROBERT CHARLES MOSTYN HURT Appellant AND: TERENCE RICHARD ROSSALL, DAVID FREDERICK BRUCE, JOHN ARTHUR CAPORN First Respondents AND: ROBERT WILLIAM COLE, ROBERT JOHN YOUNG, JOHN VINCENT MONAGHAN Second Respondents AND: CHRISTOPHER EDMUND JEFFREY SUMMERS GODWIN (added by leave as respondent to the appeal) REASONS FOR JUDGMENT NEAVES J: For some years prior to the events which have given rise to these proceedings the appellant held an office in the Department of Defence of the Australian Public Service designated Chief Executive Officer and classified as Clerk, Class 11. The office had been ereated in 1972 and the appellant had been promoced to it in March 1973. The duties of the office were concerned with the development and implementation of management information systems in relation to a project then current for the acquisition by the Navy of destroyers. When that project was cancelled the duties of the office were oriented towards the requirements of other specific projects. However, it was always envisaged that the management systems developed should, as far as practicable, be of general application to ship acquisition and modernisa- tion projects being undertaken by the Department of Defence. In July 1977, it was decided to locate the office held by the appellent in the Office of the Chief of Naval Technical Services and the necessary steps to achieve that result were put in hand. A statement of the duties of the office and of the qualifications and experience considered necessary in the occupant was then approved. According to the statement so approved, the holder of the office was to advise on the specification, development, operation and monitoring of management information systems in relation to the performance of activities connected with Naval Technical Services, to identify management information system require- ments, to identify the information necessary to enable the effectiveness of reporting systems to be assessed continu~ ously, and to advise on the need for outside management consultancy services. The immediate supervisor of the office in question was to be the Chief Staff Officer of Naval Technical Services, an officer with the rank of Captain (R.A.N.). It appears thac, at the time that statement of duties was approved in 1977, it was envisaged that in due course of time the duties and responsibilities of the position might develop to a point where engineering qualifications in the occupant should be mandatory. It was, therefore, proposed that the office be reviewed in the event of it becoming vacant and that its duties and responsibilities should then be re-examined "in accordance with the criteria for engineering positions as shown in the approved classification standards". In May 1980, the appellant, pursuant to regulation 6 of the Public Service Regulations made under the Public Service Act 1922, applied to the Public Service Board that the office he occupied be re-designated from the Clerical/Administrative Employment Group to the Engineering Category with no change in classification at the top of the Third Division of the Australian Public Service. After due examination by the Public Service Board, approval was given on 10 March 1981 to the existing office of Clerk, Class 11 being abolished and a new office of Engineer, Class 5 being created. A new statement of duties was approved and, although the office remained within the Naval Technical Services Division of the Department of Defence, the immediate supervisor was to be the Chief of Naval Technical Services, an officer with the rank of Rear-Admiral. Pursuant to section 50 of the Public Service Act 1922 the appellant was provisionally promoted to the newly created office of Engineer, Class 5 on 23 July 1981. Two officers of the Australian Public Service appealed against a the provisional promotion on the ground of superior efficiency. One of the appeals was withdrawn before the matter came before the Promotions Appeal Committee established under the Public Service Act 1922. The remaining appeal was that of Mr. Godwin and his name was added as a party to these proceedings by this Court on 23 March 1983. The Promotions Appeal Committee which heard the appeal comprised the first respondents. Mr. Rossall was a person appointed by the Public Service Board as a Chairman of a Promotions Appeal Committee for the Australian Capital Territory. Mr. Bruce, who held the position of Assistant Secretary Level 2, Head of Dockyard Secretariat, Department of Defence was the nominee of the Department of Defence. Mr. Caporn was an Engineer, Class 4 employed in the Department of Housing and Construction and was the nominee of the Association of Professional Engineers of Australia. On 10 September 1981, the Promotions Appeal Committee allowed Mr. Godwin's appeal. Later on the same day Mr. Rossall, acting as a delegate of the Public Service Board, cancelled the appellant's provisional promotion and promoted Mr. Godwin to the vacant office. The appellant subsequently applied to this Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977. That application was dismissed. From ~ that order the appellant has appealed. It is now well established by decisions of this Court that a Promotions Appeal Committee, in making the full inquiry which it is required by the Public Service Act 1922 to make, is obliged to act fairly. It is also well established that what is fair in a given situation will depend upon the circumstances of the particular case, The appellant submits that the proceedings of the Promotions Appeal Committee were unfair to him in a number of respects. First, it is said that the Committee failed to advise the appellant of the specific documents which were before it with the consequence that the appellant did not become aware that particular documents were not before the Committee. The appellant submits that, if the Committee had fulfilled its duty in this regard, he would have become aware that the Committee did not have before it his application under regulation 6 of the Public Service Regula- tions for the re-designation of the office of Clerk, Class 11 or a document headed "Position Evaluation" containing material supporting the proposition that the duties of the office of Engineer, Class 5 were basically the same as those of the . office of Clerk, Class 11 which it replaced. " The appellant's concern that the Committee should have had these documents before it stems from a conviction that the Committee was under a misapprehension that the duties of the new position differed from those of the old and was critical of the appellant for his failure to recognise this distinction and to answer satisfactorily to the Committee questions addressed to him in relation to such distinction. It is conceded that the appellant was in possession of copies of the material which he now says the Committee should have had before it. Further, it is not suggested that he did not have an adequate opportunity to put before the Committee any material, including the documents referred to, that he considered would advance his claim that his provisional promotion should be confirmed. It is said that, because he was not advised by the Committee that it did not have the material, he was at an unfair dis- advantage in putting his case. The Committee was clearly entitled, in carrying out its task of determining the relative efficiency of the appellant and Mr. Godwin for the office in question, to ask questions concerning differences in the duties and respon- sibilities of the office as it had evolved since 1977. Apart from the documents to which the appellant refers, the Committee had before it a departmental statement in support of the appellant's provisional promotion. That statement referred to the abolition of the position of Clerk, Class 11 and the creation of the position of Engineer, Class 5. The approved statements of duties for the two positions were attached. The Committee's attention was directed to the fact that no interviews had beeu conducted for the position, the appellant (Mr. Hurt) having performed the duties of the position since its creation in 1972, and that he was selected for promotion to the position "when it was reclassified". Other material in the statement referred to the fact that the position had been established initially to replace progress- ively the use of management consultants in support of ship acquisition projects and had "evolved" to its prime role in 1981 of providing an "in house" engineering management consulting service to Naval Technical Services. It was further said Lhal during the preceding eight years the appellant (Mr. Hurt) had "moulded the job into its present valuable place" in the Naval Technical Services Division. It is not for this Court to inquire whether the Promotions Appeal Committee acted on the basis that there were significant differences in the duties and responsibilities of the new and the old positions or, if it did so, whether it misdirected itself. The only question is whether the manner in which it conducted its proceedings resulted in unfairness to the appellant. In my opinion the dictates of fairness and justice did not require the Committee in the particular circumstances of this case to do more than it did by way of informing the appellant of the specific documents which were before it. Secondly, the appellant submits that the pro-~ * ceedings of the Promotions Appeal Committee were unfair to him in that the Committee failed to make available to him copies of the written statement (with annexures but ex- cluding reports by referees) made to the Committee by Mr. Godwin in support of his claim to superior efficiency and the departmental statement (wich attachments) in support of the provisional promotion. > 7 An examination of Mr. Godwin's statement shows it to contain what he considered the requirements of the position to be, a summary of his personal particulars, a brief synopsis of the positions he had formerly held and reports by two referees. The appellant concedes that it was not a denial of fairness and justice to fail to provide him with copies of the reports of the referees but submits that it was a denial of fairness and justice to decline to advise him of the names of such referees. It is said that he should have been given the names, not for the purpose of enabling him to attack their views, but for the purpose of enabling hin, if he so wished, to compare the opportunities those referees would have had for studying Mr. Godwin with the opportunities the appellant's referees had for studying him. It, is also suggested that he may have wished to compare the status of the referees nominated by Mr. Godwin with those nominated by himself. The departmental report referred to details of the position and the qualifications necessary or desirable in the occupant, gave details of the employment history of Mr. Hurt and set out the text of an assessment of Mr. Hurt which was very favourable to him. In relation to Mr. Godwin the report set out his employment history and commented favourably upon his knowledge for the position and his personal qualities. It concluded that Mr. Hurt had been selected for the position on the basis of his depth of - experience and outstanding performance in the position and that Mr. Godwin could not match Mr. Hurt's relevant knowledge or experience. To establish that the Committee's failure to make available to the appellant the material to which I have referred caused the proceedings of the Committee to miscarry, the appellant relies on Finch v Goldstein (1981) 36 A.L.R. 287 at p. 301 and Ansell v Wells (1982) 43 A.L.R. 41 at pp. 47, 52 and 62. Ansell v Wells was an appeal from an order of a Judge of the Supreme Court of the Australian Capital Territory discharging an order nisi for a writ of certiorari to set aside and quash a decision of a Promotions Appeal Committee dis- missing an appeal by Miss Ansell against the provisional promotion of a Mr. John Mungoven. The Supreme Court had discharged the order nisi on the ground that the prosecutrix had been guilty of undue delay in seeking relief. The appeal to this Court was dismissed on the same ground but both the Supreme Court and this Court expressed views upon the question whether, in the circumstances as disclosed by the evidence, the proceedings of the Promotions Appeal Committee had mis- carried by reason of unfairness in the way in which the proceedings were conducted. The Supreme Court, following what was said by Ellicott J in Finch v Goldstein (1981) 36 A.L.R. 287, took the view that there had been a denial of natural justice by reason of the failure of the Promotions Appeal Committee to disclose to the prosecutrix prior to making its decision the departmental report on the provisional promotion, the written statement made to the Committee by the provisional promotee and oral submissions and answers to questions at the hearing by the Committee given by the promotee. In this Court, Franki J said at p. 46 of the report: ae "The requirements of natural justice applicable before a committee do not necessarily extend beyond making certain that each party is aware of the substance of the case against him (including the case for the other party) and giving each party an opportunity to put his case to the Committee." Dealing with the departmental report to the Committee, Franki J expressed the view (p. 47) that: "In general, unless there is some compelling reason to the contrary, the whole of the depart- mental report should always be made available to an appellant as long before the hearing as reason- ably practicable". His Honour went on: "Where the question of comparative efficiency is involved I consider that the substance of matters put forward about or by the 'other parry' must be known in order to enable each party to put her case. I consider that at least the substance of the written statement by Mr. Mungoven and the substance of any relevant oral submissions and answers to questions at the hearing before the Committee should have been available to the appellant. By this I do not mean that a copy of the written statement, or the words of the oral submissions and answers should have been provided to the appellant, but that the substance of anything relevant ought to have been available to her." Davies J considered that the proceedings of the. Promotions Appeal Committee had miscarried because the , interview with Miss Anse!l was an unsatisfactory and unfair interview so far as she was concerned. The atmosphere of the interview was, in his Honour's view, inimical to the presentation of her case by reason of the failure to dis- close to her prior to the interview the substance of the material before the Committee and the substance of the matters she had to meet. At p. 52 of the report Davies J said: "As the 1ssue of (sic) consideration is that of relative efficiency, each party must be given a fair opportunity not only to promote his own efficiency but also to state why he considers that efficiency to be superior to that of the other contender for the position. What must be 10. done in each particular case will depend upon the circumstances of the case.......... But, ordinarily a contender for a position will not have an uppor- tunity to put fairly his or her case on relative efficiency unless he or she is given due notice of the substance of the case put by the other contender for the position. And ordinarily, a contender for a position will not have a fair opportunity to put a case unless he or she is given due notice of the adverse factors which will be considered against him or her. Such notice should be given in time sufficient to enable the party properly to prepare his or her case." After referring to the need in some circumstances that the rules of confidentiality apply and the discretion which a Promotions Appeal Committee has as to what it does and what it does not disclose to the "parties", Davies J (p. 53) cited with approval the following passage from the judgment of Fitzgerald J in Dawes v Gesling (1982) 4 A.L.N. No. 129: "I agree that natural justice will generally require that each party to an appeal befcre 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 3 mature and extent of what natural justice re- quires to be disclosed, when disclosure is desired by a party, will depend on the circum- stances 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 1s not always appro- priate; it will not necessarily follow that there has been a breach of natural justice." Lockhart J concluded that the failure of the Committee to disclose to Miss Ansell, prior to her interview, the substance of the material before the Committee, being material that was adverse to her, amounted to a denial of justice. His Honour, while recognising that no inflexible ll. rules of procedure may be laid down for the guidance of Promotions Appeal Committees which must adopt procedures to meet the requirements of each particular case, set out what he regarded as essential standards in the following terms: - "(1) Each party must be told the substance of anything adverse to him relevant to the appeal which comes to the attention of the Committee and which is alleged by any other party, witness, superior or other officer in the Public Service or anybody else. This information should be given to him in writing as soon as reasonably practicable after it comes before the Committee and before he is interviewed unless, in a particular case, this is not possible. He must have an opportunicy quietly to consider the allegations against him and, if necessary, to obtain material to rebut them. He ought not to be confronted with allegations of this nature for the first time when he is facing the Committee and obviously at a dis- advantage in such unfamiliar and formal surroundings: see Board of Education v Rice [1911] AC 179, per Lord Loreburn LC at 182; Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955, especially per Lord Parker CJ at 968. "(2) Each party must be told the substance of the case being advanced by the other party or parties. So far as practicable, this information should be given to him in writing and before he is interviewed. The right of each party to be given the material mentioned in (1) and (2) above is not dependent upon his making a request for it. It should be furnished to him, whether requested or not. Of course, if he informs the Committee that he does not want the material it need not be given to him. ™(3) The absence of procedures in the Act and Regulations for the conduct of appeals under s 50 (regs 109, 109D and 109F have little to say of any real help to committees), and the multifarious circumstances which may arise in these appeals, require flexible procedures which, in my view, the Committee must determine in each case as the pro- cedures to be followed by it. It may be that some classes of cases admit of common procedures; but others may not. Hence the need in each case for the Committee to turn its mind to the question of procedure. Unless the Committee does this, it is obviously at risk of acting unfairly to-the persons concerned in the matter before it." 12. The matter was argued before the trial Judge on 13 and 14 May, 1982, that is Lo say after judgment had been given by the Supreme Court of the Australian Capital Territory in the proceedings brought by Miss Ansell but before the appeal to this Court in that matter had been argued, The trial Judge, however, deferred judgment in the present case until after thisCourt had delivered judgment in the Ansell case. He concluded that, so far as the documentary material which the appellant now contends should have been provided to him, there was nothing said by or in support of Mr. Godwin which in fairness Mr. Hurt should have had an opportunity of contradicting or quali- fying. It is abundantly clear from the authorities that the procedures that must be adopted to meet the requirements of natural justice depend upon the circumstances of the particular case. ' I agree with the trial Judge that the appellant, has not established that the proceedings of the Promotions Appeal Committee were unfair to him by reason of the non- disclosure to him of the material to which he has referred. It remains to consider whether the Committee should have disclosed to Mr. Hurt the names of the referees nominated by Mr. Godwin. In my opinion the reasons, which support the view that, in general, a Promotions Appeal Committee is not obliged to advise the "parties" of what is said by referees (see R v Wells (1982) 41 A.C.T.R. 31 at pp. 36-7; Ansell vWells (1982) 43 A.L.R. 41 at pp. 46, 52) are equally applicable when what is sought are the names 13. of referees (see Hamblin v Duffy (No. 2) (1981) 37 A.L.R. 297 at p. 305). There is nothing in the circumstances of the present case which would require that the names be disclosed. I would, therefore, dismiss the appeal. moe ee = race Se IIS t | certify that this and the Hor (13) I preceaing pages are a ire Copy of ihe \ Reasons for Judgment herein of his Honour . Justice Neaves Mr. Ju Oo: | Associate \ \ Dated: 20- 7-53 Sa cs en | eee A SETS i a 14. t