ZO bol IN THE FEDERAL COURT OF _ AUSTRALIA AUSTSALTAN CAPITAL TERETTORY . No, ACT'G 327 of 1984 t ! DISTPICT PEGTSTRE ! ) GENEPAL DIVISTON y BETWEEN: FRANK BRENNAN Applicant AND: JOHN DAVID ENFIELD First Respondent PAMELA HARRIS. RAY GALLAGHER and ANGELA KENDAL Second Respondents PETER STEPHEN WILENSKI. JOHN VINCENT MONAGHAN and GRAHAM GORDON GLENW Third Respondents MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. pH DATE_OF ORDER : 31 July 1985 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The decision of the Promotions Appeal Committee constituted by the second respondents made on 25 July 1984 under sub-section 50(8A) of the Public Service Act 1922 disallowing the appeal by the es) applicant against the provisional promotion of ra Peter Noble Guild be set aside. 2. The decision of the Public Service Board constituted by the third respondents made on 3 July 1984 under sub-section 50(10) of the said Act confirming the provisional vromotion of Peter Noble Guild be ser aside, ia The appeal by the applicant aqainst the provisional promotion of Peter Noble Guild be treated as an appeal on the around of equal efficiency and seniority and be heard by a Promotions Appeal Committee constituted by persons other than the second respondents. 4. The application be otherwise dismissed. 5. The respondents pay one half of the applicant's costs of the application excluding any costs relating to the hearing on 30 May 1985. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEUDEFAL COQUPT OF ANSTFALTA AUSTRALIAN CAPITAL TEREITOERY ! ue. ? No. ACT G 327 oF 1991 DISTRICT REGISTRY 'f GEWEPAL DIVISION BETWEEN: FRANK BRENNAN Applicant AND: JOHN DAVID ENFIELD First Respondent PAMELA HARRIS. RAY GALLACHER and ANGELA KENDAL Second Respondents PETER STEPHEN WILENSKI, JOHN VINCENT MONAGHAN and GRAHAM GORDON GLENN Third Respondents CORAM: Neaves J. DATE: 31 July 1985 REASONS FOR JUDGMENT On 3 May 1985 TI announced the conclusions which TI had reached upon the application by Frank Brennan ("the applicant") under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of decisions relating to the promotion under the Public Serwice Act 1922 of Peter Noble Guild to an office of Clerk. Class 11. Third Division, Registrar's Office, Canberra. a position within the Policy Program Co-ordination Division of the Department of Territories lL and Local Government. At thak time I delivered reasons, in . weiking, For knose conclusions. In so Far as the application sought an order setting aside the decision of John David Enfield. the first respondent, under sub-section 50(1) of the Public Service Act 1922 ("the Act") promoting Mr Guild provisionally to fill the vacancy that had occurred in that office [T held that the application failed. Another of the decisions in relation to which an order of review was sought was a decision of the Promotions Appeal Committee conshituted bv Pamela Harris. Ray Gallacher and Angela Kendal. the second respondents. under sub-section S0(8A) of the Act disallowing the appeal by the applicant against Mr Guild's provisional promotion. In relation to that decision I concluded that none of the grounds set out in the amended application filed on behalf of the applicant had been established. IT then went on to consider the further ground added by leave during the course of the hearing, namely that the decision of the Promotions Appeal Committee was reached otherwise than in conformity with the requirements of sub-section 50(8A) of the Act construed in its content including. in particular. sub-section 50(6). In relation to that around I concluded that, notwithstanding that the applicant had claimed that he was superior in efficiency to Mr 3. Guild for the subtéct office, it was the duty of the Promotions Appeal Committee ta make appropriate enquiries inte 'the question whether Ehe provisional promotee or the applicant WAS more enticled. ko . oramatinn ro Ukhe vacank office' Tyga | ko determine the appeal accordinaly. Te being common ground that the applicant had aréater seniority than Wr Guild. he was tg nhitied ro succeed in his appeal tf. afhker making full nH) enquiries into the claims of che parties. the commictee was af opinion that the applicant was equal in efficiency to Mr Guild for promotion to the vacant office. I then pointed to the circumstance that the Promotions Appeal Committee had expressed its conclusion in terms that the applicant had not demonstrated that he had superior efficiency and that the conclusion as so expressed did not. in logic, exclude the possibility that the committee was of the view that the applicant and Mr Guild were of equal efficiency for the vacant office. it being unable to choose between them on that account. Having regard to the circumstance that the point had not been raised in the original application to the Court filed on 17 September 1984 or in Ehe amended application filed on 15 January 1985 but was a ground added by leave during the course of the hearing. I considered that the appropriate course was to make no final order in the matter at that stage but to adjourn the hearing for a short period to enable the second respondents. if they were so advised, to place material before e the Court clarifying tne basis of Fhe committee's decision to disallow the applicant's appeal. Each of the second respondents filed an affidavit dealing with their deliberations upon the appeal and each was cross-examined on that affidavit. Iam satisfied that each of Che witnesses was frank in the answers qiven to the questions asked and that there had been no prior consultation or collaboration between them as to the evidence they would give. The picture that emerges from the evidence is that the commibtee did not make any decision upon the question whether the applicant's aftficiency for the vacant office was equal fo that of Me Guild. A tinding to thak effect. combined with the applicant's seniority, would have entitled him to succeed on his appeal. The committee considered that the only question which it had to determine was whether the applicant was superior in efficiency to Mr Guild for the vacant office and it decided that question decisively aqainst the applicant. The committee took the view that that was the only question for its decision because of the insistence by the applicant that that was the issue upon which he wished the appeal to be determined. As I said in the reasons for judament previously delivered. the committee's approach was clearly understandable having regard to the applicant's conduct but the result is that the committee failed to determine the question which. in the final analysis. was Ehe question which the statute committed to it. namely 5. whether the provisional .promotee or the, applicant was more entitled to promotion to the vacant office. . fa It PSllows that the Promotions Appea bo carry our the duty that was entrusted to it by the statute, In ordinary circumstances such a conclusion would lead cto an Order setting aside the decision of the committee and the decision of the Public Service Foard confirming Mr Guild's provisional promotion and directing that the applicant's appeal. treated as an appeal on the ground of equal efficiency and seniority, be re-heard. However. for the respondents it was submitted that. in all the circumstances. the Court should exercise its discretion to deny relief to the applicant. Counsel submitted that. although the committee did not collectively determine the issue. the evidence established that each of the second respondents had individually formed the view that Mr Guild was of superior efficiency to the applicanr for the vacant office so that it was clear what the result of their deliberations would have been had those deliberations taken Place. This approach has a certain attractiveness as the evidence of the second respondents supports the conclusion that each had individually formed the view that Mr Guild was superior in efficiency bo the applicant. However, notwithstanding this superficial attractiveness I think it would not be appropriate toa exercise my discretion against Bi) yranting the applicanh raliet, The applicant. despite the manner in which he conducted his aepeal. was entitled to have the commithee deliberate upon the iestion whether he was of equal efficiency to Mr Guild. Th does not seem fo be a proper oO substitute for that deliberation for the Caurk now to conclude what the result of thac deliberation would have been. The decision of the second respondents to disallow the appeal by the applicant against the provisional promotion of Mr Guild and the decision of the third respondents confirming that provisional promotion are, therefore. set aside. I order that the appeal by the applicant be treated as an appeal on the ground of equal efficiency and seniority and be heard by a Promotions Appeal Committee constituted by persons other than the second respondents. The application is otherwise dismissed, On the question of costs. I have had regard to the circumstance that the applicant did not succeed on any of the grounds taken in the application filed on 17 September 1984 or in the amended application filed on 15 January 1985 and that, in relation to the grounds alleging serious impropriety, no material was placed before the Court to support the claims made. I have also taken into account that it was laraely. if not solely, as a result of the applicant's own conduct that the Promotions Appeal Committee adopted the course which it did and which led it into error. I note. further, that the hearzna that was fixed by agreement for 30 May 1985 was largely abortive because the applicant was not then readv to proceed. Taking those matters into account, I think the appropriate order for costs is that the respondents pay one half of the applicant's costs excluding any costs referable ro the hearing on 30 May 1985. I cectify that this and fhe preceding 6 vages are a true copy of the Reasons for Judament herein of the Honourable Mr Justice associate' Dated: 31 July 1985