Promotion - appeal on the ground of equal errticiency and seniority - selection of Promotion Appeals Committee - whether applicant or member of public might reasonably suspect member of Committee to be unprejudicea or impartial - whether apprehension of bias reasonable - relevance of membership to professional body Administrative Decisions (Judiciai Review) Act 1977 Public Service Act 1922 5.50 Public Service Requlations i109D(1) SHEILA AGNES HIGGINS v OD. CRAIG, B.W. BANKS and J.ORR - First Respondents; DEREK VOLKER - Second Respondent; WILLIAM COLE, J.C, TAYLOR AND R.J. YOUNG - Third Respondents No. G 229 of 1983 Morling J. 5 April 1984. Sydney. EN THE FEDERAL COURT JF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 229 of 1283 GENERAL DIVISION BETWEEN : SHEILA AGNES HIGGINS Applicant AND: D. CRAIG, B.W. BANKS, and J. ORR First Respondents AND: DEREK VOLKER Second Respondent AND: WILLIAM COLE, g.C. TAYLOR and R.J. YOUNG Third Respondents QRDER JUDGE MAKING ORDER Hy Morling J. DATE OF ORDER : 5 April 1984 WHERE MADE : Sydney THE COURT ORDERS THAT: ~ 1. The application is dismissed. 2. The applicant 1s to pay the costs of the respondents. at ncaa aL ee ee IN THE PESERAL COURT OF AUSTRALIA ; NEW SOUTY WALES DISTRICT REGISTRY ) No. G 229 of 1982 ie) GENERAL DIVISION 3ETWEEN : SHETLA AGNES YIGGINS Applicant AND: D. CRAIG, B.W. BANKS, and J. ORR First Respondents AND: DEREK VOLKER Second Respondent AND: WILLIAM COLE, J.C. TAYLOR and R.J. YOUNG Third Respondents MORLING J. 5 April 1984 REASONS FOR JUDGMENT In these proceedings the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of certain decisions made in connection with her application to be appointed toa position in the Department of Veterans' Affaics ("the Department"). The position is that of Engineer Class III in the Biomedical Engineering Section of the Concord Repatriation aa et na A rte ee A pp fae A wor ee ee - 7 - -- . hk SHE AAS General Hospital. Her application was unsu ie} re cC5) wu ui th c a w ro) ray exercised the vight of appeai given to ner sv s.5C cr che Pubirs Service Act 1922, as amended ("the Act'), to a Promotions Appea: Committee ("the Committee"). The first respondents are the members cl the Committee. The applicant claims to be aggrieved by a decision to appoint Mec Craig as a member of the Committee. She claims that she entertains a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question that will arise on the hearing of her appeal. The second respondent 1s the Permanent Head of the Department whose delegate appointed Mr Craig to the Committee. The third respondents are the members of the Public Service Board. The application 1s based upon para. (a) of sub-s.5(1) of the Judicial Review Act which provides that an order of review of a decision may be made if a breach of the ruies of natural justice occurred in connection with the making of the decision. The respondents conceded that 1€ 1t were shown that there was a reasonable apprehension that Mr Craig was or might be biased, it would be a breach of the rules of natural justice to appoint him to the Committee. It was further conceded that the rules of natural justice apply to the Committee: see Finch v Goldstein (1981) 36 A.L.R. 287. The application 1dentifies a number of decisions by which the applicant claims to be aggrieved, but it is unnecessary co refer to them all in detail. 3. It is plain that the applicant's rsal complaint is the decision to include Mr Crazra on the Commicitee. The applicant is employed as a physicist at the Repatriation General Hospitai at Concord. She has been s0 employed since 1970. From the time of her initiai appointment until 1977 she was in sole charge of the Physics Department (later called the Biomedical Engineering Department) at the hospitai. In July 1977 the position as head of that department was reclassified and advertised as being vacant. The applicant applied for the position but was unsuccessful. Mr Stanley Scahill was appointed to the position from outside the Public Service. It is plain that the applicant does not get on with Mr Scahill. In 1978 she lodged a formal complaint with tne Chief Officer of the Department that she was being victimized by him. This complaint has not as yet been determined. In September 1981 the Department calied for applications for the relevant position at the hospital by inserting a notification in the Commonwealth of Australia Gazette. The notification gave details of the duties attacheé to the position and included the following statement: "Qualifications: Educational qualifications admitting to Grad.I.E.Aust. or other qualific- ations recognised by the Board as appropriate to the efficient Gischarge of the duties. + Substantial experience in biomedical engineering te he ane eee psi Eile ae nN Al tt A te - - Bay zn a hospital environment and qualifications admitting to Memberssnip of the Institute cr Biomedical Engineering (Austrcails) ace desirable.' The applicant applied for membership of the insticute of Biomedical Engineering (Australia) ("the Institute") in 1976 but her application was deciined. In its letter or 11 Novemper 1976 rejecting her application the Institute informed the applicant that after considering a recommendation from its Membership Committee, together with all relevant informazvisn. it had been decided that her experience had not been of a type which could be recognised as related to the practice of biomedical engineering. At the request of the applicant the Institute reconsidered her application but in June 1978 it informed her that her application had again been unsuccessfui. The applicant applied for the position as advertised in the Gazette. Because she was concerned to ensure that her application would be fairly determined she instructed her solicitors to write to the Head of the Department seexing to be notified of the personnel who would form the Interviewing Committee established to interview appiicants for the position. The Department initially proposed that Mr Scahili and Mr Knuckey should he members of the Interviewing Committee. The applicant objected to the inclusiom of these gentlemen on the Committee. She alleged that Mr Scahill was prejudiced and biased against her and that Mr Knuckey was sympathetic to Mr Scahill's views about her. Upon being informed that these Pet tanita nnn fe ne Se ee eo gentlemen were to sit on the Interviewing Committes the applicant appliea under the Judicial review Act Zor an oraer cf review of the decision to appoint them tc tnat Committee. This application was withdrawn pursuant to an arrangement that a fresh Interviewing Committee would be ccnstituted, and that none of its members would be members of the Institute. In due course the applicant appeared before an Interviewing Committee comprised of three persons, none of whom was a member of the Institute. The applicant was unsuccessful in her application and Mr. B.G.R. Williams was prcevisionally promoted to the position which had been advertised. In June 1982 the applicant appealed pursuant to 3.50 of the Public Service Act against the provisional promotion of Mr Williams. She also wrote to the Promotions Appeal Committee objecting to the inclusion upon it of any person who was, or had been, a member of the Institute. However, she was advised that Mr D. Craig, a Queensland officer of the Department, had been nominated as the Departmental nominee on the committee and that he was a member orf the Institute. She was asked to advise the Committee of the nature of her objectzon to Mr Craig. She thereupon referred the Committee to the history of her objection — to any member of the Institute _being included on the Interviewing Committee. In due course the chairman of the Promotions Appeal Committee advised the applicant that her objection to Mr Craig had been considered and rejected. He said appointed to any Promoticns Avoreal Committee seunsequently convened. The applicant was informed thact the Committee coula see no rsason why a reasonable person could fear that justice might not be done by Mr Craig sitting on the Committee. In further correspondence it was alleged by the applicant's solicitors that she complained that Messes Scanili and Knuckey had conspirea to prevent her from obtaining the advertised position, that those gentlemen were members of the Institute, that the applicant had been denied membership of the Institute, and that Mr Craig was a member of the Institute and an associate of Messrs Scahill and Knuckey. However the Department declined to withdraw Mr Craig's nomination and thereupon these proceedings were commenced. The nomination of Mr Craig as a member or the Committee was made by Mr Brian Partridge, the delegate of the Permanent Head of the Department. Regulation 109D(1} of the Public Service Regulations provides that a Committee shail be constituted by a Chairman appointed by the Public Service Board, an officer nominated by the Permanent Head of the Department in which the provisional promotion has been made, and an officer nominated by the appropriate industrial organization. Mr Partridge said that he approved the appointment of Mr Craig because he believed that he possessed the necessary experience ele pee ee ee nae a a ee - -- and expertise to act as the Devarstrental nominee. Ne vas avare of the earlier proceedings cfommencec by tne arrsrcant witan respect to the comyosition of the Intexviewing Vommitctse and of her objection to Messrs Scahill and Knuckey sitting on that committee. Mr Partridge said that, because of Mrs Higgins' specific objection to those two gentlemen. he preferred not to appoint either of them as the Departmental nominee on the Promotions Appeal Committee. He also said that there was no raig, whom GO biomedical engineer in the Department. other than Mr he regarded as having sufficient experience ocr expertise in the duties of the subject position to perform the sole af Departmental nominee. It was not possible to appoint a nominee from outside the Public Service, as had been done with the Interviewing Committee, as the Public Service Regulations required the Department's nominee upon the Committee to be an "officer" - vide Regulation 109D(1)(b). Mr Partridge did not regard membership of the Institute as a matter disqualifying a person from acting as the Department's nominee on tne Committee. He believed that membership of the Institute was usual amongst biomedicai engineers. He was aware at all relevant times that Mr Craig was a member of the Institute and that the applicant had been refused membership of it, and that she had objected to any person who was a member of the Institute being involved in the selection process. He did not know Mr Craig perscnally, his name having been suggested to him by the Director of Personnel. ry Before nominating Mr Craig he satisfied himself that he was the best available officer and that he nac hac no oriocr involvement in the original selection prccess. he 3s41G that it Was nis understanding at the time he nominated Mr Craig thac all officers of the Department who were hiomedical engineers were either members of the Institute or seeking membership of 1t. tf accept Mr Partridge as a frank and honest witness. Mr Craig 18 employed as an engineer in the Biomedical Engineering Section of the Department in Brisbane. He said that before being appointed to the Promotions Appeai Committee he had been informed that objection had been taken to the composition of the Interviewing Committee. In particular, he was toid that objection had been taken to Messrs Scahill and Knuckey and that proceedings in the Federal Court had besn settled uron the basis that no member of the Institute would be a member of the Interviewing Committee. He said that Messrs Scahili and Knuckey were known to him as engineers, senior to him, employed by the Department in Sydney and Melbourne respectively. He did not regard either of them as friends. His contact with them was generally only to exchange information about technical matters. He said he also had contact with Mr Knuckey at meetings of the Council of the Institute of which they were both members. He said he accepted nomination to the Committee because ne had no doubt that he could approach Mrs Higgins' appeal without bias. eee we w+ nee - 1 My Craig said that he could remember cnly one dccasion on which he nad neard Mrs Higgins' name menticnec. de did ast remember exactly what was said, out he did recaii a conversation in which Mr Scahill had said that he had been having staff problems and that ~ "I seem to have difficulty working with my physicist Mrs Higgins. I doubt that she 1S very combetent." Mr Craig did 'not recall the substance or detail of the conversation, which he thought had occurred a year or two prior to 1982. He said that he did not place any importance upon Mr Scahill's comment and that he did not form any scpinion whether Mr Scahnill's remark about Mrs Higgins' competence was justified. He said that, at the time, Mr Scahill's statement was "irrelevant to me" and that he drew no conclusions from it. I accept Mr Craig as a reliable witness in this and other matters on which he gave evidence. Mr Craig was not a member of the Institute at the time Mrs Higgins' application for membership of it was rejected. He became a member in 1979. He said he believed that membership of the Institute was looked upon favourably in the biomedical branch of the engineering profession. He had joined the Institute because it was a body that provided a forum for exchange of technical information amongst biomedical engineers, organized conferences and provided opportunity for discussion of technical matters with other people in his profession. He was aware that the reason given by the Institute for the rejection of the applicant's membership application was as stated in the letter of 11 November 1976 to which I have already referred. ily 10. Mr Craig joined the Institute in 1979 and was a w councilior in 1982/1983. He was appointed Secretary in August 1983. Mr Knuckey is also a councillor of the Institute. Mr Craig said that he spoke to Mr Scahill about once a nonth on Matters relating to Departmental duties, about cnce a year on matters relating to Institute affairs, and never om social occasions. As to Mr Knuckey, he spoke with him about once a month on Departmental duties, about four times a year on Institute affairs and never on soci1al matters. Mr Craig said that he had spoken twice with Mr Williams. The first occasion was at a meeting of the Committee for the purpose of hearing the applicant's appeal. The second occasion was in October 1983 at the Concord Repatriation Hospital. Mr Craig said: "The conversation consisted of saying hello to one another as we passed in the corridor." Mr Williams is not a member of the Institute. It was put to Mr Craig that he had not been open with the other members of the Committee when he was asked apout nis membership of the Institute. It was said that he had disclosed only that he was a memper of it, and that he nad not mentioned his role as a councillor. I reject this criticism of Mr Craig's evidence. He said that he believed he had disclosed to the chairman of the Committee the fact that he was a counciilor and vice-president of the Institute. It 1s true that in correspondence between tne applicant and the Committee only the ance alsa le ate ie An ae et a ee mre fact of Mr Craig's membership of tne Institute was mentioned. w However, I do not see an '< ct =] i! a Q w re)ra Las) cl fi) ns ns cd t ? a ur For the applicant to succeed in these proceedings it 15 necessary for her to show that in ali the circumstances she or a member of the pubiic might reasonably suspect that Mr Craig would not be unprejudiced or impartial in discharging his duties as a member of the Committee. See The Queen v Watson: ex parte Armstrong (1976) 136 C.L.R. 248 at pp.262-263, and Livesey v The N.S.W. Bar Association (1983) 47 A.L.R. 45 at p.48. Counsel for the respondents accepted that if the applicant did satisfy the court that such a suspicion might reasonably be entertained she was entitled to the relief sought. Thus the only substantial question that arises for consideration is whether the applicant has established that she or a member of the public might reasonably suspect that Mr Craig might not be an unprejudiced or impartial member of the Committee. In considering this question it is important to bear in mind the nature of the 1ssue that will fall to be determined by the Committee when 1t hears the applicant's appeal. The procedures applicable to the appeal are laid down in s.50 of the Public Service Act. In the selection of an officer for promotion under the provisions of the section consideration 1s to be given first to the relative efficiency, and, in the event of equality of efficiency of two or more officers, then to the relative seniority, of officers - sub-s.50(3). ""Efftic1rency" means "special qualifications and aptitude for the discnarzre st the duties of the office to me Yillec., TayetAer witr merit. diligence and good conduct" - sub-s.50(4). Any prormetion 1s provisional pending confirmation of the promotion and is supject to the right of appeal - sub-s.50(5). Provision 28 made It5¢c the constitution of a Promotions Appeal Committee - sub-s.fU(SA), and for the purposes of the determination of an apréeal a decision of a majority of the members of the Committee snall be deemed to be the determination of the Committee - sun-s.S5¢(5AA). Any officer who considers that he 1S more entitled to promotion to the vacant office than the officer provisionally rromcted, on the ground of superior efficiency, or equal efficiency and seniority, may appeal under the section - sub-s.50(6). I was unformed from the Bar table that the applicant's appeal is based upon her contention that she has equal efficiency with Mr Williams and 1s senior to him. Where (as in the present case) all the parties to the appeal perform thelr duties in the one State, the Committee 1s obliged to make full enquiries into the claims of those parties and to determine the appeal - para. (a) of sub-s.50(8A). There 1s no doubt that the applicant 15 more senior in the Public Service than Mr Williams. Hence the question for the Committee will be whether the applicant and Mr Williams are of equal efficiency. enn ns eet te ee . ee 13. A number of matters were reliea upon to establish that tne applicant had a reasonable aporehension that Mr Crarg wignt not bring an impartial mind to the discharge of his cuties as a member of the Committee. It was argued that whilst some of these matters, i1f looked at inaividually, might not be sufficient to give rise to an apprehension of bias, that was not the case when they were looked at collectively. Reliance was placed upon Mr Craig's association with Mr Scahill, who obviously thought poorly of the applicant's competence. But in my opinion the evidence establishes that the association between Messrs Scahill and Craig has at ali times been of a professional kind. The mere fact that Mr Scahill made a passing reference of a disparaging kind about the applicant's competence in a conversation with Mr Craig some year or so before he was nominated as amember of the Committee could not lead any reasonable person to believe that Mr Craig would not carry out his responsibilities with complete impartiality. It was argued that in determining whether the applicant entertained a reasonaple apprehension that Mr Craig might not be impartial it was proper to look at the matter as it would appear to the applicant. It was said that she believed that Mr Scahill thought poorly of her, that because of the delay in dealing with her complaint against Mr Scahill the Department was reluctant to investigate it, and that 1n nominating Craig to the Committee the Department had done an "about face" in the light of the settlement of the earlier proceedings in this court. But I fail anne VRPT YS Wy BUONO IOS ONTST POET DTT OUST Wan mT ENOInE SOON SoU TOT O 2 ae ee ee ee 14. to see how the applicant or any seasonable person could regard those matvcers as giving fl ta @ co an apprehension that Mc Craig might not be impartial. There 15 no basis for identifying Mr Craig with Mr Scahiill or the Department. Counsel for the applicant argued that, since the Department knew of the applicant's opposition to any member of the Institute being involved in the selection process, and or her opposition to Mr Craig in particular, it must have appreciated that she would regard its persistence in appointing Mr Craig as manifesting its intention of ensuring that its nominee on the Committee would not be favourably disposea towards her. But the question to be decided 1s whether the applicant has a reasonable apprehension that Mr Craig might not act impartially as a member of the Committee. It is not to the point that the applicant may feel that the Department ought to have nominated some other person. What she must establish 1s that she has a reasonable apprehension that Mr Craig 15 or might be biased against her. Reliance was also placed upon the fact that Mr Partridge was not given a short list of possible nominees, and that only Mr ralg's name was suggested to him. It was argued that this circumstance could reasonably lead the applicant to suspect that Mr Craig may not have been nominated on his merits, but at the instigation of Mr Scahill and because he was believec to be sympathetic to Mr Scahill's views. There 1s no substance in this argument. Partacular reliance was placed uson the fact that Me Craig was a memper of tne Institute. The apolicsant acgue. That the cejection of her application in 1976 and 1978 for membersnip of the Institute placed Mr Craig in an invidious position as he was now not only a member but also the Secretary of 1t. It was submitted that the rejection of her membership application meant that the Institute did not regard her experience as being the type required of a biomedical engineer. It was further submitted that it was likely that Mr Scahill would be cailed a mw a witness before the Committee, that he was amember o Hy, faa o t Institute, and that therefore Mr Craig might be seen as likely to favour views expressed by another Institute member. it was also said that Mr Craig might be calied upon to consider what weight should be attached to the fact that the applicant had not been accepted as a member of the Institute. When considering these arguments it 15 necessary to keep in mind that the question for the Committee will be whether the applicant 1s equally as efficient as Mr Williams. In deciding that question the Committee will not have to maxe a choice between one person who is a memper of the Institute and another who is not. Neither Mr Williams nor the applicant is a member. In these circumstances I do not think that the fact that Mr Craig is the Secretary of the Institute would lead a reasonable person to fear that he might not bring an impartial and unprejudiced mind to the Committee's deliberations. an enemas Retin at parent sada he he - creer ae ecko oe ae ee -- - - Further, I ao not think that the rejection of Mrs Higgins' application for membersnip some years berore Mr Craic himself became a member of the Institute could give rise taa reasonabie apprehension of bias on his part. It 15 piain that the applicant resents the rejection of her application for membership. But 21t would not be correct to treat her feeling of resentment as giving rise to a reasonable apprehension that Mr Craia might be biased against her. Neither Mr Craig nor the institute has, at any time, passed any opinion upon the applicant's suitability for the position which she seeks or upon the question whether she is as efficient as Mr Williams. As to the contention that Mr Craig might regard the rejection of her membership application as reflecting adversely on the applicant 1t is relevant to refer to the frollawing passage in his evidence: "Do you think that the fact that Mrs Higgins had applied for membership of the institute and been rejected demonstrated that in a competition with Mr Williams for the relevant job, she ought not for that reason alone to be preferred to him?---I do not believe the fact that she was rejected is particularly relevant. It was in 1976, I believe, which is eight years ago, when she first applied. She was rejected, as I understand it, from the documentation that I have seen, on the grounds of inadequate experience of the right type. I do not know whether she has since obtained adequate experience of the cight type or whether she would be admitted 1f she reapplied. Also at that time there was only one grade of membership of the institution, which was full member, which required educational 17. qualifications ovolus relevant experience. Since that time there has been a grade of associate member established, whersby fsopls with the correct educaticnal qualifications but without adequate exXperience can 22 admitted as associate members and then progress to full membership when they obtain adequate relevant experience, so that I do not know the circumstances of her rejection in detail, and the situation in the institution has changed somewhat since then. If she applied now, she may well be admitted. Mr Williams has never applied, and therefore, never been tested in that way, but it is unlikely that Mr Williams would be admitted as a full member at the moment either." (Transcript pp.42-43) Counsel for the applicant submitted that she was not privy to Mr Craig's private opinions and that what the court must do is to, as he put it, "aggregate all that is in her mind and determine whether she would entertain a reasonable suspicion." I accept that this is the correct approach. She 1s not required to assume, as I think would be the case, that Mr Craig would approach her case with complete impartiality. Neither the applicant nor a member of the public can be presumed to know the character or ability of Mr Craig or the other members of the Committee - see Hannam v Bradford Corporation (1970) 1 W.L.R. 937 at p. 949 per Widgery C.J. and R v Liverpool City Justices (1983) 1 All E.R. 490 at p. 494 per Ackner L.J. But what the applicant has inher mind and her' subjective opinions about Mr Craig cannot found a feasonable suspicion unless they are in turn based upon a reasonable assessment of all the information available to her. f= do not think thata eden ee penne Le ns onan ne ative leedatn ar aA LL MA teat ea eee ee - > 18. reasonable person would believe that Mr Craig's asscclation with a professional body which, before he jcinec it. hac declinec 2 is) oO gu admit the applacant gave rise to a ceasonabl pprehension that he might not be an unprejudicea member of a committee whose duty it is to assess the relative efficiency of the aoplicant ana Mr Williams, neither of whom is a member of that proressional body. The mere fact that Mr Craig knew of the reason given by the Institute for refusing to admit the applicant to membership does not mean his mind was prejudiced against her or could reascnably be thought to be prejudiced against her. As the High Court said in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546 at p. 554, an unprejudiced mind "1s not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it." Of course the subject matter of the appeal under the Public Service Act 1s the applicant's comparative efficiency with Mr Williams. The rejection of her application for membership of the Institute, if relevant at all to the appeal, will be very much on the periphery of the Committee's considerations. In these circumstances the dictum of the High Court in the Angliss Case (supra) applies a fortiori to the present case. In my opinion it is not to the point that the Department agreed, as aterm of settlement of the earlier Federal Court proceedings, not to nominate a member of the i— lo Institute to the Interviawing Committee. There wera some six applicants for the vosition at the hespical and. for alli cae evidence discloses, some of tne aoplicants may have been members of the Institute. Moreover, there was no statutory necessity for an officer or the Department to be on the interviewing Committee whereas the contrary 15 the case in respect or the Promotions Appeal Committee. Apparently the Department was prepared to bow to the applicant's request not to nominate a member of the Institute to the Interviewing Committee so as to avoid the necessity of contesting the earlier Federal Court proceedings. However, the Department's attitude cannot be taken as an admission that membership of the Institute would of itself create a reasonable apprehension of bias on the part of a member who might subsequently be appointed to a Promotions Appeal Committee. I do not think that a reasonable person would cavil at Mr Partridge's nomination of Mr Craig or the reasons which actuated him in making the nomination. The matters relied upon by the applicant, whether regarded individually or collectively, do not persuade me that a reasonable person would suspect that Mr Craig might not be an unprejudiced member of the Committee. In my opinion 1t woule not be a breach of the rules of natural justice for him to sit as a member of the Committee hearing the applicant's appeal. As a was said by the High Court in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 547 at pp. 553-554, the requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a _ Suspicion may reasonably be engendered in the minds of those who come before a tribunal or in the minds of the public that the tribunal or a member of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. The evidence in this case does not establish any such suspicion. For these reasons the application must be dismissed with costs. i ua NINETEEN (@) we aa mug CTE OF 71? Asgociats C/ Dated: 5S APRIL PRE seer --— -4 meen oe ee meee ne