H Del a By (eo) my to (oy Administrative law - judicial review - Commonwealth Teaching Service - Australian Capitai Territory Tachnical and Further Education component - application 'for Master Teacher ~ I Classification - cecommendation by Eligibility Committee and Review Committee - adopticn of recommendation by Director of service - whether decisions subject to judicial ceview - extension of time to institutes proceedings - whether rules or natural justice apply toe decisions - legitimate expectations - procedure for applicaticns set down in Handbook - expectation that appizcation to be daealt with in Broad contormity with Handbook - whether breach of rules of Mmatural justice - necessity for cral hearing or further enquiries Administrative Decisions (Judicial Review) Act 1377 Commonwealth Teacning Service Act 1972 Commonweaith Functions (Statutes Review) Act 1981 Part VIII HEATHER CATHARINE DOUGLAS v. ROBERT NORMAN ALDEN; RAY JOLLIFYE, CAMES CHARLES VENZS, EWAN EDWIN HAZEL DOROTHY PATRICIA ARNO and ROBERT VIRGONA Seccnd Respondents PHILLIP JOHN IRBOTSON, WAYNE KENNETH BRADLEY and PATRICIA HACKETT Third Respondents No. ACT G94 of 1983 Moriing J. 3 April 1984. Sydney U IN THE FEDERAL COURT oF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY wee eee Oe No. ACT GS4 of 1983 DISTRICT REGISTRY GENERAL DIVISION BETWEEN : HEATHER CATHARINE SOUGLAS Applicant AND: ROBERT NORMAN ALLEN as the Director First Respondent AND: RAY JOLLISSE. JAMES CHARLES VENIS, EWAN EDWIN HAZELL, DOROTHY PATRICIA ARNO and ROBERT VIRGONA Second Respondents AND: PHILLIP JCEN ZB50TSCN, WAYNE KENNETH BRADLEY and PATRICTA HACKETT Third Responaents ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 3 April 1984 WHERE MADE 3 Sydney THE COURT ORDERS THAT: lL. The application is dismissed. IN THE FEDERAL COURT CF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY wee weve w GENERAL DIVISION BETWEEN : HEATHER CATHARINE POUGLAS Applicant AND: ROBERT NORMAN ALLEN First Respondent AND: RAY JOLLIST=, JAMES CHARLES VENTS, EWAN EDWIN HAZELL, poner PATRICIA ARNO and ROBERT VIRGCNA Second Respondents AND: PHILLIP JOHN IBBOTSON, WAYNE KENNETH BRADLEY and PATRICIA HACKETT Third Respondents MORLING J. 3 April 1984 REASONS FOR JUDGMENT The applicant Mrs Heather Catharine Douglas seeks orders of review under the Administrative Decisions (Judictal Review) Act 1977 (the "Judicial Review Act"y. Mrs Douglas is an officer cf the Commonwealth Teacning Service established by the Commonwealth Teacning Service Act 1972, as amended (the "Teaching Service Act"). In 1982 she 2. applied to be classified as eligible for promotion to Master Teacher classification within the Australian Capital Territory Technical and Further Education Component of cwne Commonwealth Teaching Service. She was unsuccessful in her application and now seeks orders of review in respect of a number of decisions which she alleges were made in the course of dealing with her appiication, and in respect of conduct said to have been engaged by officers of the Teaching Service in relation to those deczsions. Section 19 of the Teaching Service Act which was enacted in its present form by the Commonwealth Functions (Statutes Review) Act 1981, provides that the Commonwealth Teaching Service established and in force immediately before the commencement of that section is continued in existence for all purposes. The Service is divided into four components. The relevant component for present purposes 15 the Australian Capital Territory Technical and Further Education component (the "TAFE component"). The first respondent is the Director of the Office of the Australian Capital Territory Further Education in the Department of Education. He 1s responsible for the overall organization or the Australian Capital Territory Further Education system. He is designated as the relevant authority for the TAFE component of the Commonwealth Teaching Serv-ce under sub-s. 19(5) of the Teaching Service Act. The second respondents are the members of an Eligisility Committee whic ccnsidered Mrs Beuglas' application for assessment of her eligibilicy to appiy for Master Teacher classification and recommended that sne be deemed ineligible for such classification. The third respondents are the members of a Review Committee which considered the recommendation of the Eligibiiity Committee and decided that the recommendation should be supported. Mrs Douglas claims that the decisions of the Eligibility Committee and the Review Committee to recommend against her application and the decision of the Director to accept the recommendation were decisions of an administrative character which are reviewable under the Judicial Review Act. She claims to be aggrieved by the making of- the decisions because, so it is alleged, breaches of the rules of natural justice occurred in connection with the making of the decisions. A claim that a decision to adopt certain procedures laid down in a Handbook (to which I shall presently refer) was reviewable, was inciuded in the relief originally sought, but was not pressed. Since early 1981 Mrs Douglas has been working at the Woden College of Technical and Further Education in the Department of Secretarial Studies as a Secretarial Studies teacher. On 16 April 1982 she lodged an application for ner assessment for elibility to apply for Master Teacher Classizication in the Australian Capital Terrictery TAFE component of the Commonwealth Teaching Service. In due course she received an acxnowledgement of her application and was informed that she was eligibles to be assessed. ' The applicant claims that breaches of the rules cf natural justice occurred when her application was dealt with. Since her application was dealt with in accordance with established procedures for assessing. eligibility for Master Teacher classification, it is necessary to refer in some detail to those procedures. The Master Teacher classification was introduced into the TAFE component in 1979 by the then Commonweaith Teaching Service Commission. The aims of the classification are set out in paras. 1.3 and 1.4 of the 1982 Handbook of Instructions and Guidelines for Peer Assessment and Master Teacher Eligibility ("the Handbook"). The Handbook was issued by the Commonwealth Teaching Service. The practical effect of achieving Master Teaching status 1s that a Bard 1 teacher 1s paid at the higher rate applicable to Band 2 classification. Mrs Douglas is a Band l' teacher. There are five Band levels. A Band 1 teacher who achieves Master Teacher status remains in his or her 3and 1 position. That 1s to say, achievement of Master Teacher status does not involve a promotion or transfer,but does iead co an increase in salary. The procedures invoived in Master Teacher assessment were developed in consultation with and with the concurrence of a body known as the Advisory Committee to the Commonwealth Teaching Service Commissioner. This body comprised the Commissioner as Chairman and representatives of other groups including the Australian Capitai Territory Teachers' Federation. In summary, the process involved in Master Teacher assessment for 1982 was as follows: (a) A teacher desiring assessment made formal application to the Director. (b) If the teacher met the qualifications set out in the Handbook, an assessment panel was formed. This consisted of three members, being a chairperson appointed by the Principal of the College in which the applicant was located, and two other members selected by the chairperson from persons nominated by the teacher. (c) The teacher prepared a report setting out his or her claims. (ad) The panel then considered the application and prepared its report. It held discussions with the teacher and gathered information from whatever sources it considered appropriate. The teacher received a copy of the panel's report. (e) The report was then examined by an Eligibility Committee comprising a chairperson nominated by the Director and four officers nominated jointly by the Teachers' Federation and the Director. (£) After consideration of the panel's report and any supplementary information submitted by the teacher, the Eligibility Committee made a recommendation to the (g) (h) (1) (5) (ke) 6. Director. Before recommending against eligibility, <he Committee discussed with the assessment panei the areas, if any, in which the teacher nad failed to reach the lieve: of performance expected and considered a further statement frcm the panel on those areas. Reasons for recommending against eligibility were provided to the Director. The Director then decided on the recommendations 'made to him and advised the teachers accordingly. Unsuccessful applicants were advised of their right of appeal to a Review Committee. If a review was sought, a Review Committee comprising a chairperson nominated by the Director and two officers nominated jointly by the Teachers' Federation and the Director, were appointed. The Review Committee then considered the following material: (i) the assessment report on the teacher; (iit) a copy of the Eligibility Committee's notification to the teacher's panel, indicating the areas requiring clarification or elaboration; (iii) the written response of the teacher's panel following its discussions with the Eligubility Committee; and (iv) the reasons given by the Eligibility Committee when finally recommending to 'he ~ xs, Director that any particular applicant be deemed ineligible. The Director then decided on the recommendation ~ and advised the applicant. ~ Neither the Eligibility Committee nor the Review Committee had any personal 7. contact with the teacher during their ceiiberations. The Chairman, of the assessment panel constituted to consider Mrs Douglas's application Zor eliagzbility was Mr Michael Moore. In 1982 he was the Head of the School of Community Education. Although he knew who Mrs Douglas was, he had had no contact with her before his appointment as chairman of her assessment panel. Mrs Douglas submitted to Mr Moore the names of three Band 2 teachers, none of whom had any professional knowledge of her. From the names submitted by Mrs Douglas Mr Moore chose that of Mr T. Farley. Mrs Douglas also submitted the names of three of her Band 1 peers to Mr Moore, and from these names Mr Moore chose that of Mrs M Ball. In the result, the assessment panel consisted of three people none of whom had had any dzrect personal professional knowledge of the applicant orior to the assessment process. The panel met with Mrs Douglas and considered comprehensive documentary material submitted by her. Each panel member read this material and discussed it extensively se = ~ = with her. According to Mr Moore, whose evidence was rot challenged, an assessment strategy was worked out and agreed ee tt A = ee a 8. between the panel members and Mrs Douglas. She attenced ail Ft meetings of the panel. Panei members attenced several o her classes. About thirty hours sof her 'teaching was surveyed. In addition, Mrs Douglas submitted considerable documentary evidence of teaching vertormed prior to the assessment process. Following each period of teaching observed panel mempers had meetings and d:scussions with her. Members of the panel interviewed a range of people concerning Mrs Douglas' professional performance. These included all her full-time colleagues, some of her part-time colleagues, students, Head of Department, and others. In addition, some of her former colleagues were contacted. Mr Moore estimated that about 25 to 28 separate individuals were interviewed on behalf of Mrs Dougias. During the assessment process meetings were frequently held with Mrs Douglas and ail evidence gathered was discussed at length with her. Mr Moore estimated that about 15 separate meetings were held between the panei and Mrs Douglas, the average duration of the meetings being at least two hours. She also initiated _discusszons with individual members of the panel and Mr Moore himself had at least five such meetings with her, gach lasting more than two hours. According to Mr Moore, the frequency and length of these discussions were occasioned Sy the panel's attempt to be absolutely fair to Mrs Couglas. He said that she was ' unwilling to accept any negative comment. She claimed that such comment was either wrong or deliberately vindictive and she required the panel to gather alternative or new evidence which she claimed would prove her point of view. Mr Moore said that sometimes this was in fact the case, and at other times it was not. During the assessment process the panel members showed and discussed with Mrs Douglas drafts of sections of the report they were proposing to make. She continualiy queried and objected to any negative comment in the report. She required the panel to gather additional evidence on Matters dealt with in the report, and attempted to prove internal illogicality in the report. She also claimed that some evidence gathered by the panel was malicious. According to Mr Moore he gave more than 150 hours of his time to the assessment of Mrs Douglas. He sar:d that the other two panel members each contributed in excess of 100 hours of their time. The panel's report was submitted co the Darecter of the Office of Australian Capital Territory Furtner Education on or about 6 August 1982. A ccpy of the report had alreacy 10. been received by Mrs Douglas herseif on 2 August 1332. After sne received 17 she gave to the panel a further statement making comments upon the panel's report. Section 3.8 of the report made observations upon, inter alia. Mrs Douglas' relationships with some of her senior coilsacues, who were not supportive of her application. On 12 August 1982 Mr R Virgona, the Chazrman of the Eligibility Committee and one of the second respondents, wrote to Mrs Douglas and to the panel members indicating that a meeting would be held between the panei and the Eligibility Committee to discuss the panel's report, especially certain specified sections of it. The letter listed a number of sections of the report. Beside some of the enumerated sections a tick was placed, but no tick was placed against other sections. Section 3.8 appeared on the list without a tick. Mrs Douglas said that she formec the opinion that the Eligibility Committee was satisfied with the matters raised by the assessment panel 1m section 3.8 because no tick had been placed alongside it. I do not think this was an assumption which she was entitled to make. The fact that the Committee did not wish to raise specifically with the panel the contents of section 3.8 gave no indication of the Committee's views on the matters referred to 1n that section. The letter of 12 August fixed a time and place for the meeting between the Eligibility Committee and the assessment panel. It also advised Mrs Douglas that: "You have the right to read, consider and cemment on the panels (sic) resume of che *" interview at this time and that the Eligibility Committee will consider any such comments before making its recommendation to the Director." The meeting between the Eligibility Committee and the assessment panel took place on 18 August 1982. There was some general discussion of the assessment process and of the question whether the panel was expected to make a recommendation or not. There was also discussion of Mrs Douglas' professional impact, a matter upon which opinions varied. Mr Farley, who swore an affidavit in support of Mrs Douglas' application, said that, in h2zs cpinion, the Eligibility Committee would not have been in any doubt that the panel was recommending that Mrs Douglas be deemed eligible for Master Teacher classification. At the conclusion of the meeting, Mr Moore met with Mrs Douglas. He gave her a complete verbal summary of all that had gone on at the meeting. His discussion with her occupied more than two hours. On 18 or 19 August Mr Moore also gave her a - handwritten resume of the panel's meeting with che Eligibility Committee. Mr Moore said that he believed this handwritten report complied with the requirements of para. 2.3.5 of the 1982 Handbook. This paragraph refers to a vaply which the panel may make to the applicant's comments on 'the ee ae Pe A nt 12. written resume of the meeting between the assessment panel and the Eligibility Committse. On 20 August 1982 Mrs Douglas delivered a memorandum to the Chairman of the Eligibility Committee. In this memorandum she made comments on the written resume given to her by Mr Moore. She made lengthy observations cn her past working exper1rence and its relevance to her application for Master Teacher classification. Evidence was given by Mr Jolliffe, a member of the Eligibility Committee. He said the purpose of the committee was to evaluate the professional performance of applicants for Master Teacher eligibility on the basis of material contained in various reports presented to the Committee and utilizing criteria specified in the Handbook. He said the Committee read and assessed the written documents submitted on behalf of all applicants, including Mrs Dougias. In her case, these documents included a supplementary statement submitted by her after she had seen the report prepared by her assessment panel. Mr Jolliffe said that each memper of the Eligibility Committee used a check list to assist in the appraisal of each applicant and subsequent discussion of the application. In its discussion with Mrs Douglas' assessment panel the Committee sought to clarify its iundavidual and ee ee en ee P— a oe eee ~ 13. collective understanding and perception of her professional performance. Shortly after its discussion with the panel the Committee met to discuss all applicants, including Mrs Douglas. It had before i1t a written resume prepared by the panel concerning matters raised in 1ts dzscussion with the Committee. The Committee accepted this written resume as the statement referred to in §.2.3.5 of the Handbook. It also considered further written material submitted to it by Mrs Douglas. It arrived at the decision that it should recommend that Mrs Douglas be deemed ineligible to apply for the status of Master Teacher. In all, it considered 10 applications for classification as Master Teacher. It recommended that four applicants be regarded as eligible for classification, and that a further six applicants, including Mrs Douglas, be deemed ineligible. On 14 September 1982 the first respondent wrote to Mrs Douglas advising her that the Eligibility Committee had recommended that she be deemed ineligible at present to apply for classification as a Master Teacher, and 'hat he proposed to accept the recommendation. She was advised that she could request the Review Committee to review her case. On 16 September 1982 she sought review of her case, and referred to a number of matters which she requested should be brought to the attention of the Review Commictee. For the most part, the matters referred to were adverse comments by her on the objectivity and motivation of persons whose opinions had not supported her case. -_—— er ee ee ee ee 14. te to the first uw oO On 21 September 1982 Mrs Douglas wr respondent claiming that the Eligibility Committee did not have before it a reply from the oanel as ecified in para. a 'S 2.3.5 of the Handbook. The applicant requested that che Review Committee be provided with copies cf ali documents relating to her application for eligibility, including che contents of her letters or 16 and 21 September 1982. Apparently when the Review Committee met to consider the Eligibility Committee's decision it was at first unable to come to a decision because 1t was of th view that the assessment panel had failed to give a rating or judgment on what it regarded as the critical area of Mrs Douglas' professional relationships. Accordingly on 29 September 1982 the Review Committee wrote to the first respondent seeking his advice as to whether it would be appropriate for it to approach the panel to seek informaticn on that matter. The first respondent advised the Review Committee that having regard to the terms of the Handbook it was not open to the Committee to itself approach the panel. However he advised the Committee that if 1t was unmabie, for the want of information, to come to a recommendation, he would consider referring the matter back to the Eligibility Committee to obtain the information. The Review Commzttee dad not take up this offer. In due course 1t wrote to the first respondent in the following terms: 1s. "The Eligubilicy Committee based its refusal 29 grant eligibility for Master Teacner cn the grounds that Mrs Douglas diac not meet che criteria velated to 'educationally constructive professional relationships'. The panei identified a polarisation between varlous yespondents on this issue, but mersly reported differing points of view. There was no attempt in 32.8 to reach a balanced judgement or make a rating. Under these circumstances, the Eligibility Committee would not have had sufficient evidence before it to make a judgement that Mrs Douglas met all criteria. We express our concern that an applicant may have been denied Master Teacher status because the panel did not make a judgement and the Eligibility Committee appears not to have demanded one. Decision That the recommendations of the Eligibility Committee that Mrs Douglas not be granted Master Teacher eligibility be supported." Upon receiving this letter the first respondent wrote to the Chairman of the Eligibility Committee enclosing the Review Committee's letter and all the previcus papers in Mrs Douglas' application. The letter was in the following terms: "The Review Committee nas given me a recommendation which may be correct in the technical sense. but which, on tne grounds cf natural justice, I cannot accept. The Review Committee has indicated difficulty with the area of professional relationships and in particular with Section 3.8 of Form il1c. This relates to the fact that the original panel did not provide a rating or a statement setting out why the rating scale was not considerea to be applicable. I would accordingly appreciate | \ \ 16. 1t 1m the Eligibility Committee weuld caxe cne necessary acticn to remedy this." In response to this letter the Chairman of the ligibility Committee reconvened tne committee. On 10 November 1982 he advised the first respondent that: "The Committee in fact were unanimously agreed that they had made their valid recommendations to you previously and they reaffirmed this, stating that they had made their recommendations after due and proper consideration 'of all the permissible evidence placed before them." The Chairman expressed some concern that, in the opinion of his Committee, the procedures that had been adopted at the review stage were inconsistent with those outlined in the official Handbook. Upon receipt of the lastmentioned letter the first respondent again spoke with the Chairman of the Eligiblity Committee. As a result of that discussion he made the following note on Mrs Douglas' file: "I have discussed this with Mr Virgona. I am satisfied that the Eligibility Committee dis- charged 1ts responsibilities properly in that it discussed in depth with the panel the question ef professional relationships and was able to come to a conclusion. I accept the recommendation that Mrs Douglas not he granted M.T. eligibility." Mr Allen said that before making the above note he had specifically raised with the Chairman of the Eligibility 17. Committee the cuestion whether the absence of a rating by that Committee on Item 3.8 of the relevant form was a factor in the Committee's decision to recommend against Master Teacher eligibility. The Chairman advised him that the matter of a rating was not significant and that the ratin was based on an in depth assessment of all the areas covered in the relevant form. On 27 January 1983 the first respondent wrote to Mrs Douglas advising her that the Review Committee had met and had not recommended that the recommendation of the Eligibility Committee be varied. He said that he had therefore accepted the recommendation that she be deemed ineligible at present to apply for classification as a Master Teacher. He attached to the letter a copy of the reasons given by the Eligibility Committee for the recommendation. Those reasons were in the following terms: "From the evidence, the Committee assesses you as having sound teaching skills, but as requiring to place far greater emphasis on building educationally constructive professional relationships with your colleagues within th College, relationships through which one spreads one's professional influence, relationships which the Committee sees as necessary for those applicants whom it recommends for Master Teacher eligibility." On 4 February 1983 Mrs Douglas wrote to the first respondent stating that she considered the reasons given by 18. t the Eligibility Committee and upheid by the Review Committee wer? not adequate. She requested a detailed explanation of reccemmencation and te the reasons for the Review Committees' for the first respondent's decision. Her letter concluded with the observation that she was aware that she was entitled to such an explanation under s.13 of the Judicial Review Act. On 7 March 1983 Mrs Douglas was furnished with a comprehensive statement pursuant tos.13 of the Judicial Review Act. The present application was not commenced until 28 November 1983. The reasons for the delay in bringing the proceedings appear in correspondence that passed between the solicitors for the parties and 1t is ummecessary to refer to its detail. The first question which arises 'for consideration 1s Whether the court should make an order extending the time within which these proceedings may be brought. Counsel for the respondents stated that they had not suffered any prejudice by the delay in bringing the proceedings and he did not oppose the grant of an extension of time. Having regard to the delay in bringing the proceedings I would net have granted an extension of time had any cf the respondents been prejudiced by the delay. The absence of any such prejudice is not, of itself, suffic1rent to -custify an extension of time. The circumstances in which an extension er ee eee 19. of time should be granted to permit the bringing of an application under the Judicial Review Act have deen considered in many cases. The cases are referred to in the judgment of Neaves J. in Excell v Harris & ors. (18 October 1983) and there is no occasion to refer again to cnem. As 1s pointed out in some of the cases, it is not only the interests of the applicant and the respondent that requires to be considered. In the present case, it is also necessary tO have regard to the interests of other teachers who could possibly be artfected by the granting of the relief sought by the applicant. During the course of argument I informed counsel for the applicant that I would not be minded to grant an extension of time to permit an attack to be made upon the validity of the procedures laid down in the Handbook, since such an attack, if successful, might unsettle other recommendations made by the Eligibility Committee. Counsel indicated that, if an extension of time were granted, the argument that the Handbook vrocedures were invalid would not be pressed. In these circumstances and having regard to the absence of prejudice to either the respondents or any other person, I think it is appropriate that I should make an order extending the time within which these proceedings may be brought. I turn now to consider the merits or the application. The two substantial questions which arise for consideration are, first, whether the rules of natural 20. justice apply to the maxing of any of the decisions sought to be reviewed, and second, whether, :f so, a breach of those rules occurred in connection with the maxing of any of r@) the decisions. It was conceded that the Director's decision not to classify Mrs Douglas as a Master Teacher was an administrative decision which was reviewabie under the Judicial Review Act. The same concession was not made in respect of the decisions of the Eligibility Committee or the Review Committee. However, in the view I take of the case, it is umnecessary to give separate consideration to the question whether the Committees' decisions are reviewable under the Act. It was common ground that, for all practicable purposes, it was the Director's decision which mattered. Success in attacking the other decisions would be ef no avail to Mrs Douglas if the Director's decision stands. Since the Director's decision is conceded to be reviewable, it is appropriate to consider whether an order should be made for the review of that decision. It was contended on behalf of the applicant that she had a legitimate expectation that she would be class- ified by the Director as a Master Teacher. This peing the case, so it was submitted, a decision affecting that legitimate expectation was required to be made in accordance a with the rules of natural ju 2. Heatley v Tasmanian Racing and Gaming Association 137 C.L.R. 487; F.A.L. Insurances Limited v Winneke (1982) 41 A.L.R. 1 and Ansell v Wells (1982) 43 A.L.R. 41 were relied upon. 21. It was submitted in the alternative that even l the applicant did not have a legitimate expectation that she would be classified as a Master Teacher she at ieast rad a legitimate expectation that she wouid be interviewed personally by the Eligibility Committee which would make its own enquiries as to any epposition to her classification. Another alternative submission was that the applicant had a legitimate expectation that, should the Elzgibility Committee not recommend her classification as a Master Teacher, the Director would himself independentiy make the enquiries which the Eligibility Committee should have made. To determine whether the applicant did have a requisite legitimate expectation it is necessary to refer to the nature of the application which the Director declined to grant. The applicant was a Band 1 teacher in the teaching service. She did not seek a promotion. Had she done so, the provisions of the Teaching Service Act would have applied, 30 as to give her a right of appeal to 2a Promotion Appeal Board. By applying to be classified as a Master Teacher the applicant sought a recognition of her teaching expertise which, 1f acknowledged by the Director, would have led to an increase in her salary. It was open_to any Band 1 teacher, such as the applicant, to seek Master Teacher status. However I can see nothing in the applicant's terms of employment or in any statute which could have given rise to a legitimate expectation on her part that she would he 22. granted the status of a Master Teacher. In reality, she had, at any relevant time, no more than the (8) pportunity to seek recognition of what she cla:med to de her supericr teaching talent. The phrase "legitimate expectation" was first adopted by Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch. 149. Many of the cases in which the meaning of the phrase has been examined and 1ts content discussed are referred to in Cole v Cunninghan (1983) 49 A.L.R. 123 at p.129 et seq. There 1s nothing to be gained by embarking again upon a detailed analysis of the cases. The view expressed by Barwick C.J. in Salemi v Mackellar (No. 2) (1977) 137 C.L.R. 396 at 404 that the word "legitimate" in the phrase expresses a concept of "entitle- ment or recognition by law" has not found favour in subsequent cases. A legitimate expectation has been equated to a reasonable expectation: see Heatley's Case (supra) at Pp- 508-9 per Aickin J. (with whom Stephen and Mason Jo. concurred), and Attorney-General Hong Kone v Ne Yuen Shiu (1983) 2 W.L.R. 735. In Heatley's Case Aickin J. said (az p.509): "In cannot be said that the true extent of the notion that an expectation may be the foundation of a right to compel observance of 'the relevant principles of natural justice has yet been fully worked out or stated with precision. In some cases a distincticn has been drawn between cases concerning the original grant of a licence and those concerning tne renewal of a aiready grantec. For instance, in Insurances Limited v Winneke (1982) 56 A 388 cn@ majority aeld that in the circumstances of that case an insurance company wnich alrzady neld a licence to transact workers' compensation insurance business in Victoria was entitled to know tne reasons why its licence was not to be renewed and toa fair opportunity tc answer allegations of misconduct against 12. The fact thac it already held a Licence was basic to the Court's finding. Although tne company haa no legal right to the renewal of its licence it was held that it had a legitimate expectation that 1t would be renewed." It is to be observed that Aickin J. Lert open the question of the ambit of the cases in which a "Legitimate expectation" may be found to exist. He said: "The exact extent of that expression has not been determined but it certainly applies to renewal of licences to carry ona particular business where there is no statutory right of renewal." He went on to point out the unfairness which could result to a person whose licence to carry on a business is not renewed, such a person may have built up a business an expended money on assets on the basis of an expectation of renewal of his licence. In Cole v Cunningham (supra) a Fuil Cours of this Court considering the circumstances in which a "legitimate expectation" couid be said to arise said chat 'The gate (was) ajar ...". The Court empraced she view that a legitimate expectation may be found in che circumstances ee age - hom 24. postulated oy the Privy Council in the folicwing passage from 1ts decision in Attorney-General sf Yong Kong v Na Yuen Shiu (supra) at o.741: "The expectations may be based upon some state- ment or undertaking by, or on behaif of, the public authority which has the duty of making the decision, if the authority has, through 1ts officers, acted :n a way that would make it unfair or inconsistent with gocd administration for hin to be denied such an enquir7." Notwithstanding the trend to expand the class of case in which the requisite "legitimate expectation" wili be found to exist, I reject the argument that the circumstances of the present case gave rise to a legitimate or reascnable expectation that the applicant would be classified as a Master Teacher. Her position was little different from that of a person who applies for a position in the Public Service. In such a case, in the absence of very special facts such as were present in Cole v Cunningham, an applicant does not have any reasonable expectation that he will be appointed or afforded an opportunity of being heard before the appointment is made. The applicant was merely one of a number of persons who were in a position to seek recognition of the1r teaching skills. It was open to any Band 1 teacher to seek to have his or her teaching skills recognised by achieving Master Teacher status. Mrs Douglas had no greater expectation 'han any other Rand 1 taacner cf being granted such status. I do not say for cone moment that she is not a very experienced and highly ovrcfessicnai $$$ . 25. teacher. The evidence makes it clear that she ils. Nevertheless neither the Director nor any person on 1s behalf had done anything to cause her tc believe that she would be classified as a Master Teacher. There is nothing in the legislation which gives her any right to such a Classification. Nor do the terms of her employment point to "any such right, or even any expectation of such an appointment. I turn now to consider the applicant's alternative arguments. I have already referred to the #laborate provision made in the Handbook for the consideration of applications for Master Teacher classification. Every Band l teacher knew of those provisions. It was no doubt convenient, both to the Director and to Band 1 teachers, to have the procedures codified and set out clearly in the Handbook. The use of an assessment panel to collect information for consideration by the Eligibility Committee (and by the Director, if necessary) was an integral part of those procedures. It was to be expected that the assessment panel might refer to unfavourable as well as favourable comments on any application. The procedure laid down in the Handbook for consultation between the panel and the Eligibility Committee made it plain that the Committee would rely on the panel's enquiries where it thought apreropriate to do so. These procedures also made it plain that the Director might well decide to act upon the recommendation of IT eee ee . 26. the Eligibility Committee and, a fortiori, a recommencation of the Eligibility Committee which was ccnfirmed by the Review Committee. In these circumstances the applicant did wt ~ a rei) not have any legitimate or reasonable expectations of kind referred to in the alternative submissicns put on he ty behalf. I can find no basis =n the Handbook or elsewnhers for Mrs Douglas entertaining such expectations. However, this does not mean that the applicant did not have a legitimate or reasonable expectation of any kind. In my opinion the 1ssue of the Handbook to, inter alia, Band l teachers with the imprimatur of the Director gave rise to a reasonable expectation in the applicant that her application for Master Teacher classification would be dealt with substantially in accordance with the sxsrocedures laid down in the Handbook. That is not to say that she had a reasonable expectation that every minor detail of those procedures would be observed. But I think that she was entitled to expect that her application would be dealt with in broad conformity with the Handbook requirements. As I have sought to make plain, she was not entitled to hold an expectation that she would actually be granted Master Teacher classification. But she was entitled to hold the more limited expectation to which I have just referred. That expectation would have been fortified by the circumstance that the contents of the Handbook were apparently discussed at a meeting attended by the applicant — Fae " 27. at or about the time she made her application. The meeting = was held at the Canberra College of Technical and Further Education and was attended by senior officers of the Education Department. The contents of the Handbook were discussed and it was made clear to the applicant that the Handbook requirements would need to be followed by intencing applicants. It is to be remembered that although Master Teacher classification was not strictly a promotion, it did carry with it a significant monetary advantage as weil as the recognition of excellence in the teaching profession. It 1s impossible to say on the evidence in this case that there was any significant departure from the procedures laid down in the Handbook. Nor was there any breach of the rules of natural justice in the procedures adopted by the Eligibility Committee, the Review Committee, or the Director. The Lengthy recitation I have already given of the facts demonstrates that this was so. Elaborate provision was made in the Handbook to ensure that any applicant seeking Master Teacher classification had an opportunity of having her application fairly and oroperiy assessed. In the instant case, Mrs Douglas not only availed herself or the procedures in the Handbook but supplemented those procedures by making additional personal represent- ations to the Eligibility Committee. Tt is true that she.- was not given a hearing in person. Sut having regard to the thorough manner in which her assessment panel presented her . 28. application to the Eligibility Commictee chi dxd net prejudice her. There is no requirement in law that observance of the rules of natural justice necessarily requires that a person be given a hearing in person. See R v Amphlett (1915) 2 K.B. 223; R v Whalley, ex parte Bordin and Co. (1972) V.R. 748 at 755-6. It was unfortunate that the Review Committee erroneously thought that the Eligibility Committee may net have properly considered the matters yeferred to in Paragraph 3.8 of the assessment panel's report. The oral evidence given in the case leaves me in no doubt that "he absence of a formal rating on that paragraph (which seems to have been of concern to the Review Committee) in no way prejudiced the applicant. Counsel for the applicant argued that it was incumbent upon the Eligibility Committee to make further enquiries to investigate any area of conflict between the applicant and her immediate superiors. The Committee did, in fact, hold a lengthy discussion witn 'the members of the assessment panel whose report dispassionately discussed 'his — matter. There is nothing in the Handbook, or in the rules of natural justice, which would have required the Committee to have taken the enquiries any further. It was not a case in which any charge of misconduct had been made agaznst the applicant. Nor was it a case in which the applicanc's 29. superior had lodged a complaint against her. If the Committee felt it had no need of furtner material ocefore making a recommendation to the Director, there was no obligation upon it to make further investigations. It was not suggested in argument, nor could it have been, that it was a denial of natural justice for the Review Committee and the Director to take into account and have regard to the recommendation of the Eligibility Committee. In my opinion the Director acted with scrupulous fairness in considering Mrs Douglas' application. Because of the terms of the Review Committee's report to him he was at pains to satisfy himself that the Eligibility Committee had properly considered Mrs Douglas'S application. In acase in which the rules of natural justice apply the tribunal or authority whose decision may adversely affect the legitimate or reasonable expectations of another must act with fairness, and what 1s faz:r will depend upon the circumstances of each case. See University of Ceyion v Fernando (1960) 1 W.L.R. 223, Mobil 011 Austrai:a Pty Limited v Federal Commissioner of Taxation (1963) 113 C.i.R. 475 at p.504, R. v Commonwealth Conciliation and Arbitration Commission, Ex parte Angliss Group (1969) 122 C.L.R. 546 at 552.3 and Ansell v Wells (1982) 43 A.L.R. 41. I am Satisfied that there was no breach of the rules of natural justice at any stage of the consideration of Mrs Douglas' 30. application. Her application was handled with the utmost fairness by all who considered it. Counsel for the respondents argued that, in any event the rules of natural justice did not apply to the conduct of the Eligibility Committee, the Review Committee, or the Director because such rules had been impliedly excluded by the legislature. There is, of course, no doubt that the rules of natural justice may be meditied by the terms of the statute and may he, either expressly or impliedly, excluded. : See Commissioner of Police v Tanos (1958) 98 C.L.R. 383 at 396 and Salemi v Mackellar (No. 2) (1977) 137 C.L-R- 396 at 401. It was submitted that the legislature had specifically identified in 33.28, 29 and 36 of the Teaching Service Act those circumstances in which a teacher hada' right of appeal or a right to be heard. However, those sections, deal only with promotion. I do not think it can be implied from them that in all other circumstances other than promotions there is no right on the part of a teacher to be heard when a matter affecting her legitimate expectations is under. consideration. I therefore reject the respondents' argument on this point. However, for the reasons I have given the application must be dismissed.