" 229 CATCHWOPDS Tudicial Peview - decision oat Disciplinary Appeals Board confirming penalties imposed - whether reduction in salary applied to substantive position. Telecommunications Act 1975 $8.58 and 62 Telecommunications (3taff) By-laws 21, 97 and 136 BRIAN SPERRY PRATT v. ADRIAN WALSH. H.G. CONNELL. Hg. PAYNE and B.W. BYRNES No. VG275 of 1986 Sweeney J. 20 JUNE Melbourne 19 June 1986 ue IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VG 275 of 1986 GENERAL DIVISION BETWEEN: BRIAN SPERRY PRATT Applicant AND: ADRIAN WALSH, H.G. CONNELL H.J. PAYNE and B.W. BYRNES Respondents THE COURT: Sweeney J. DATE : 19 June 1986 PLACE : Melbourne MINUTE OF ORDER THE COURT ORDERS THAT: 1. The application is dismissed, with costs, including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION NO. VG 275 of 1986 BETWEEN: BRIAN SPERRY PRATT Applicant AND: ADRIAN WALSH, H.G. CONNELL H.J, PAYNE and E.W. BYRNES Respondents THE COURT: Sweeney J. DATE : 19 June 1986 PLACE : Melbourne REASONS FOR JUDGMENT This matter arises from an application for an order to review decisions made under ss. 58 and 62 respectively Telecommunications Act 1975 ("the Act"). The relevant parts of s. 58 read as follows: of "(2) If a supervisor of an officer has, at any reason to believe that the otficer may have tailed fulfil his duty as an officer. the stpervisor require the officer to furnish to the supervisor, writing, an explanation of the matters alleged constitute the failure and may, after consideration any explanation furnished by the officer, 1f he 1s the time, to may in to or of the opinion that the orficer has tailed to fulfil his duty as an otficer- ta) counsel the officer: or 'b) fturnish a report concerning the matters together with any explanation furnished to him in relation to those matters to an officer authorised tor the purposes of sub-section U3). (3) Where an officer authorized by the Commission for the purposes or this sub-section is of the opinion. whether by reason of his consideration of a report furnished under sub-section (2) or otherwise, that an officer may have failed to fulfil his duty as an orficer the authorized officer shall, as soon as practicable, decide whether he should be charged and- (ad) if he decides that the orficer should not be charged-may counsel the officer or cause 4 supervisor of the officer to counsel the otticer: or (bp) if he decides that the officer should be charged-by writing under his hand delivered to the officer, charge the officer with the failure. 19) Where the officer who held an inquiry into a charge 1s satistied that the otficer charged has failed to fulfil his duty as an officer, he may counsel the officer or cause a supervisor of the officer to counsel him, or. 1f he is of the opinion that other action 1s necessary- (a) admonish the officer: (b) direct that a sum not exceeding $40 be deducted from the salary of the officer; (c) 1f the officer occupies a position to which a range of salary 18 applicable and 1s in receipt of a salary other than the minimum salary of that range-direct that his salary be reduced to a lower salary within that range for a period not exceeding 12 months; or (d) oo..." Section 62 provides, inter alia, - "62. (1) An officer may appeal to a Disciplinary Appeal Board- (a) against his admonition by, or a direction or decision made or given with respect to him by, 3, an officer or the Commission under section 58; (5) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the direction or decision against which the appeal 1s made. (8) A Disciplinary Appeal Board shall qive reasons. in writing, for its decision on an appeal." The application initiallv was in respect of - (1) a decision by the firstnamed respondent, Adrian Walsh. pursuant to the provisions of s.58(3), made on or about 8 February 1985 - (a) purporting to impose a penalty pursuant to s.58(9)(c) of the Act; and (b) directing that the applicant's salary be reduced from $28,647 to $27,906 being a lower salary within the range of salary applicable to the position of a Senior Technical Officer Grade 2 for a period of twelve months: and (2) a decision of the second, third and fourthnamed respondents, constituting a Disciplinary Appeals Board ("the Board") under s.o2 of the Act, made on or about 6 July 1985 conrirming the abovementioned decision of the firstnamed respondent. Subsequently the applicant by consent discontinued the proceedings against the firstnamed respondent and the application now relates solely to the decision of the Board. 4, There 15 no challenge by the applicant to the finding by the firstnamed respondent, acting as the authorised officer pursuant to s. 58(3), and the confirmation of that finding by the Board, that the applicant had tailed to fulfil his duty and that three of the four charges against him were proven. In seeking the order to review the applicant claims that the decision of the Board was not authorised pursuant to sub-s. (5) of s.02 of the Act and was an improper exercise of the power conferred by that section. He asks that the decision of the Board be set aside and that in its place there be anorder that the decision of the authorised officer be varied so that the salary of the applicant be reduced to $30,199 being the salary appropriate to the second subdivision of the range of salary applicable to the position of Senior Technical Officer ("3.T.0.") Grade3. The charges against the applicant were instituted under s.58(1)(f) of the Act alleging breaches of by-law 21 of the Telecommunications (Staff) By-laws. For the purposes of this decision it 1s not necessary to set out at length the relevant provisions of that by-law or the charges. It 1s sufficient to say that the authorised officer found proven the following charges: 1 - that the applicant without the express permission or the Commission acted as a director of a company; 2 - that the applicant without such permission was the proprietor of a business engaged in trade; and 3 - that the applicant without permission engaged in the private practice of a trade in that he operated and carried on business. Charge 4 was not pursued as the grounds alleged in it were covered by the third charge, In respect of each of the first and second charges the Maximum penalty of $40 was imposed. The applicant criticised this course on the ground that the Board should have weighed the relative seriousness of the offence alleged in each of these charges in the scale of possible relevant offences and should have imposed the maximum penalty only if satisfied that the charges proved were at the highest point of that scale. In my opinion, there was no error in the course the Board took of finding the relevant facts, and concluding that the maximum penalty of $40, a trifling amount in the circumstances, was properly to be imposed. It is unnecessary to deal with the contention of the Board that this question was not raised in the application. The consideration of the third charge turned upon the question whether the position which the applicant occupied within the meaning of $.58(9)(c) of the Act, at the relevant time was that of 5S.T.0. Grade 2. There was no doubt that he had been appointed to that position. At the time when the respondents considered the applicant's case, he had been for some fourteen months temporarily performing higher duties as a member of what was called the Satellite Projection Team. The applicant submitted to the Court that those higher duties were the duties of an $.T.0. Grade 3, and that the for) applicant occupied the position of an 5.T.0. Grade 3. This submission 1s, im my opinion, doomed to failure. The applicant was not appointed to the position of an 8.T.0. Grade 3. He was merely directed temporarily to perform higher duties. This direction was given pursuant to by-law 136(1) - which provides as follows: "(1) Where for any reason it is necessary so to do, the Commission may, by instrument in writing, direct an officer occupying a position in the Service to perform temporarily the whole. or such part as 1s specified, of the duties of another position in the Service." Provision 1s made for the payment of a higher duties allowance to an officer, who 1S given such a direction, in these terms: "97. Where an officer, in accordance with a direction given under by-law 136 temporarily performs the whole, or such part as 1s specified, of the duties of a position of a higher classification than the position occupied by the officer, that officer shall be paid in respect of the performance of those duties an allowance upon such rates and subject to such conditions as the Commission determines." It is clear from the Act, the direction to the applicant, and the terms of the by-laws that the applicant continued to occupy the position of an S.T.0. Grade 2 and that position only. Section 59(9)(c), when 1t speaks of a direction that the salary of an officer be reduced to a lower salary within the range of salary applicable to the position which he occupies, aptly covers the position of 3.T.0. Grade 2, to which a range of salary 15 applicable. It cannot sensibly be applied to "an allowance upon such conditions as the Vommission determines" pursuant to by-law 97. Accordingly, the application 1s dismissed, with costs, including any reserved costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of The Honourable Mr. Justice Sweeney Dated: 19 Janse lie re ~ Associate