ce os — NN ee epee pwr -—* Wi-' "- De eee we fe een ATO |} 5 . Administrative law - judicial review - decision withdrawing offer of appointment to Federal Police - resignation from current position - whether legitimate expectation of appointment - whether duty to accord procedural fairness - whether copsiderations leading to decision sufficiently put to appellant - whether procedural fairness denied to appellant Administrative Decisions (Judicial Review) Act 1977 s.5 Australian Federal Police Act 1979 5.26 Australian Fedewal Police Requlations r.6 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OR AUSTRALIA EARNEST MAX McLEOD CHARMAN v. JOHN DANIEL REILLY and THE COMMISS TONER OF THE AUSTRALIAN FEDERAL POLICE No. ACT G31 of 1985 wee ee _ BOWEN C.J., TOOHEY & SHEPPARD JJ. SYDNEY 15 JULY 1986 eg ee eee —~ ota IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G31 of 1985 2 ee Ow ep is taunt ase TREE DEF "a ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: EARNEST MAX McLEOD CHAPMAN Appellant and JOHN DANIEL REILLY First Respondent and THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent MINUTES OF ORDER JUDGES MAKING ORDER: Bowen C.J., Toohey and Sheppard JJ. DATE OF ORDER WHERE MADE 15 July 1986 Sydney THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs of the appeal. Notes: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ~ 5 Ste a rt tee FM ae OF a IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G31 of 1985 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALTA BETWEEN: EARNEST MAX McLEOD CHAPMAN Appellant and JOHN DANIEL REILLY First Respondent and THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent CORAM: Bowen C.J., Toohey and Sheppard JJ. DATE : {5 July 1986 REASONS FOR JUDGMENT THE COURT ° This is an appeal from a judgment of this Court dismissing an application by the appellant under the provisions of the Administrative. Decisions (Judicial Review) Act 1977. The application was, in its terms, "to review the decision and conduct of John Daniel Reilly Assistant Commissioner of the Australian Federal Police Force in withdrawing the offer of appointment to the said Police Force previously made to the applicant and in refusing to appoint the applicant." * ML gt ate or i hes veepepaet It was common ground that the decision and conduct complained of appeared in a letter written by the first respondent, an Assistant Commissioner of Police, on 13 July 1983 to the appellant. It is desirable to set out the operative part of the letter in full. " I refer to a letter dated 27 June 1983 from Inspector VINCENT offering you appointment as a Constable with the Australian Federal Police. Your reply of acceptance, in paragraph three, acknowledged that the offer was conditional upon the satisfactory completion of other matters and that the disclosure of new infonmation could lead to annulment of your appointment. As the result of information which has come to ny attention, including that provided by you during our meeting of 12th duly, I have decided, because of matters not disclosed in your original application or at your subsequent interview with the recruiting officer, that the offer of appointment to the Australian Hederal Police previously made to you is withdrawn. Accordingly, you will not be required to report to the Officer in Charge, Recruiting Branch on Monday 18 July 1983 as previously arranged." The appellant was, in 1983, a Detective Senior Constable in the New South Wales Police Force, stationed at Queanbeyan. In May that year he submitted an application to join the Australian Federal Police. He had been with the New South Wales police since 1968 but wished to leave because of a pending transfer from Queanbeyan to Sydney. - Paragraph 26(1)(a) of the Australian Federal Police Act 1979 empowers the Commissioner of Police, by instrument in writing, to appoint a person to be a non-commissioned officer, being an appointment that the person is, in accordance with the enn ee Y - 22° er ores a 3. requlations, competent and qualified to hold. Sub-regulation 6(1) of the Australian Federal Police Requlations sets out the terms on which a person is competent and qualified to hold the rank of constable; that was the rank for which the appellant had applied. The appellant met the required conditions as to citizenship, height, health and the passing of an examination. He was at the time 39 years of age and it was therefore necessary for the Commissioner to make a determination under sub-reg.6(4) that he was of opinion that the appellant should be appointed a member of the Federal Police. That determination was made on 29 June 1983 by Chief Superintendent Fletcher, as a delegate of the Commissioner. Sub-regulation 6{1) also requires an applicant to produce evidence, to the satisfaction of the Commissioner, of his qood character and reputation and, where he has been a member of an existing police force, evidence of his good conduct while such a member. Regulation 6 does no more than set out qualifications to hold the rank of constable in the Australian Federal Police. The holding of those qualifications gives a- person no entitlement to- join the Force; that is a matter for the Commissioner. —But the appellant submits that, by reason of what took place in connection with his application, he was led to expect that he would he appointed; that he resiqned from the New South Wales force because of that expectation and at the request if not the insistence of the Federal Police; and that the first respondent denied him natural justice in withdrawing the offer of appointment. The woe Log ance oe 4. appellant also attacks the decision and conduct of the first respondent on other grounds. But, in our view, the only viable ground is that related to natural justice or, more appropriately in the circumstances of this case, procedural fairness. Certain facts deposed to by the appellant in an affidavit filed in support of his application for review were not disputed by the respondents. The appellant said that he applied for a position in the Federal Police on 2 May 1983, that he was interviewed by Sergeant Sweeny late in May and then by Inspector Vincent. EHarly in June 1983 Inspector Vincent telephoned him to say that his application had been accepted and that he would receive a letter confirming his appointment. At that stage he had passed the entrance examination and the medical examination but no determination had been made under sub-reg.6(4). When he rang, Inspector Vincent asked whether the appellant had yet tendered his resiqnation to the New South Wales police. He said: "I want you to start at the end of June". The appellant said that he had not, that he was just about to go on holidays and that he preferred not to tender his resiqnation until he returned from leave about the middie of June. The appellant was required to give a month's notice of intention to leave the New South Wales Police Force. Inspector Vincent agreed to the appellant deferring notice of" resiqnation until after his return from leave. On 24 June 1983 or thereabouts Inspector Vincent again rang the appellant to ask whether he had tendered his resignation. The appellant told him that he had, agreed to let Inspector Vincent have a note to that effect and was told by the inspector yee ee er wee ee ene ee moor ese et ee STE 5. "We'1l let you know when and where to start". The appellant had tendered his resiaqnation on 17 June, effective as from 15 July. Sometime after Inspector Vincent's telephone call, Sergeant Barrett of the Federal Police rang to tell the appellant to start on 18 July, to be at the recruiting office at 8 a.m. on that day when he would be sworn in, and that he would then he taken to Weston though the sergeant did not know where he would be stationed. On 27 June 1983 Inspector Vincent wrote to the appellant a letter which began: "I refer to your application for employment with the Australian Federal Police, as a Constable in the General- Policing Component, and I am pleased to advise that the application has been successful, and accordingly, you are offered appointment at that rank". The letter continued that, if the appellant wished to accept the offer of employment, he should sign the attached "acceptance of offer" and retusn it within seven days. He was told when and where to report and given information about postings and other matters relevant to service as a member of the Australian Federal Police. The appellant signed the acceptance and returned it. 'The acceptance was in the following terms: "I Earnest Max McLeod CHAPMAN hereby accept the offer of appointment as a Constable with the Australian Federal Police. I understand and accept that my initial appointment will be in an ACT based Division and further I am prepared to serve in that area. I will attend at the a 8 ere ep werny me oe aces we we apn ate ee dalien a TT i 6. location specified in the attached letter at the time and date nominated. I understand that should, as yet, incomplete character checks concerning my application for appointment to the Australian Federal Police reveal any adverse matter not already disclosed by myself in that application, my appointment may be annulled. I am aware that as vacancies occur in Divisions outside the Division of my initial appointment, they are advertised in the Australian Federal Police Gazette and I am at liberty to apply for transfer to those vacancies and to be considered along with all other applicants for those vacancies, however, I have been told that no quarantee can be given that I will be able to transfer to a given location at any specific time. Iam also aware that I may be required to serve in other locations as required by the needs of the Australian. Federal Police." Reliance was placed by the respondents on the paragraph of the acceptance referring to incomplete character checks and the possible annulment of appointment. At 11.15 a.m. on 12 duly the appellant received a telephone call from Inspector Vincent, asking him to attend an interview with- Assistant Commissioner Reilly that day. The interview was conducted at about 12.20 p.m. The first respondent said to the appellant: "TI went to the Recruiting Office this morning and I found with amazement your application and I wondered why a man with 15 years service in the New South Wales Police would resign and start again in another Police Force". The appellant said that he had been transferred to the metropolitan area, that this would cause financial problems in changing homes and that his family did not wish to move. The eee Se Ne pean we on Sede tall 7. first respondent told the appellant that he had spoken to a senior police officer in the New South Wales Police Force and had been told "not to touch you under any circumstances". The first respondent said that he had asked but had not been told why the Federal Police should not touch the appellant. The appellant told the first respondent that he had "run foul" of Detective Sergeant Cullen, who was then the District Detective Sergeant at Goulburn, but had formerly been stationed at Queanbeyan. He then gave a lengthy description of matters giving rise to disagreements between him and Detective Sergeant Cullen. There is basic agreement between the appellant and the first respondent as to what was said. But in some matters of detail, not unimportant, those parties, both of whom swore affidavits and gave oral evidence, are at variance. It will be necessary to refer to this part of the conversation in some detail; but it may be noted that the interview ended with the first respondent telling the appellant he should disregard the instruction to start work on 18 July. The first respondent told the appellant that he would get in touch with him that night or the following day, by ringing him at home. On the following day, 13 July, at about 5 p.m. two Federal Police officers: called at the appellant's home and handed him the letter of 13 July to which reference has already been made. On 14 July the appellant applied to withdraw his resignation from the New South Wales police force but was told that he could not do so as the resignation had been accepted. MP 4-4 dts - 1 oP et seer ee am aye eerie momirn er 8. The appellant brought proceedings in the Supreme Court of the Australian Capital Territory, claiming against the Commissioner of Police, the second respondent in this appeal, that he had been appointed to the Federal Police or alternatively that the Commissioner had contracted so to appoint him. His claim was dismissed. See Chapman v. Commissioner, Australian Federal Police (1983) 50 A.C.T.R. 23. Subsequently he made application under the Judicial Review Act. According to the first respondent, when asked what he meant by saying that he had run foul of Detective Sergeant Cullen, the appellant embarked on a lengthy account of certain matters, in particular one relating to the De Smet family. The incident was described by the appellant in this way. One Saturday morning Jimmy Santos, a Queanbeyan businessman, rang the appellant at the detectives' office in Queanbeyan. He told the appellant, whom he knew, that he (Santos) and some of his mates had gone to Canterbury Race Course to back a good thing. They took with them Rodney De Smet, who had been a jockey, whom they used to put money on the horse in question. The horse won and Santos and his friends stood to collect $35,000 or $40,000. Without informing the others, De Smet attempted to collect the stake and winnings from the bookmaker. The bookmaker told De Smet that he would pay by cheque on settlement day but, at De Smet's request, handed him $7,000 in cash, being the stake for the winning bet. De Smet then left Sydney and flew to Brisbane, the suggestion being that he had done so to avoid having to account for the $7,000. powee oe ee Sw erm Se teens 9. ' The appellant agreed to see what he could do to get the $7,000 back for Santos. He mentioned the matter to his "boss" Sergeant Gore. The two thought that it was not a police matter at that stage but Gore agreed that the appellant go to Narrabundah to see the De Smet family. The appellant went to Narrabundah and spoke to De Smet's sister who said she wanted nothing to do with the matter. However she said that she knew where her brother was and offered to give him a message to get in touch with the appellant. Later De Smet rang the appellant at work from Queensland. He asked the appellant what he wanted to see or talk to him about. The appellant replied "Jimmy Santos said you shot through with $7,000 of his money". De Smet said that he believed some of the money was his as he had been a party to the bet and that he felt he was entitled to $1,000. Nothing appears to have been said about his entitlement (if any) to the -winnings. The appellant said that he would speak to Santos, asking De Smet to ring him later. He spoke to Santos who said he would settle for $6,000. De Smet rang as arranged and was told that Santos would take $6,000. He told the appellant he would send the money but the appellant said "I don't want anything to do with cash. Senda bank cheque". Shortly afterwards De Smet's sister rang the appellant, again at work, and said that she had a bank cheque. The appellant went to Narrabundah, picked up the cheque and gave it to Santos. The appellant was insistent that he derived no personal benefit from the transaction and there was no evidence that he did. The appellant also told the first respondent that he did not get on particularly well with Cullen and other detectives at av > i i ae Oe er i oo 10. Queanbeyan. In part, he said, this was due to his friendship with a number of Italians whom other detectives, rightly or wrongly, suspected of being involved in growing drugs. In addition, according to the first respondent, the appellant said that while he was doing his detectives' course he was running a piggery and had about 300 pigs. He got rid of the piggery and intended, with a friend, to buy a pet food business. In that connection he negotiated with a man called Ianelli whose house was raided on a drug matter. The appellant's name was found in Ianelli's telephone book and this aroused Detective Sergeant Cullen's further suspicions. The appellant told the first respondent that he explained to Cullen that TIanelli had his telephone number because of negotiations that were taking place to lease Ianelli's shop for the pet food business which, in the end, fell through. On the question of the piggery, the appellant's evidence was that he told the first respondent that he had a few pigs at a friend's place but that at no stage did he mention 300 pigs or any such number. - Furthermore, he said, he told the first respondent that he got rid of the pigs in1979 when he went todo his detectives' counse and that subsequently the negotiations relating to the pet food business took place on the basis that a friend was interested in going into the business with the appellant's wife, not that the appellant was to be involved in the business. In his reasons for judgment the primary judge drew attention to these differences in the evidence of the appellant ss ae ee ie Mk 4 lel ee Ld eT Cea il. and the first respondent but made no express findings in regard to what was said or not said. His Honour did say, in a general way, that he accepted the evidence of the first respondent, though not in a context which necessarily carried with it rejection of the appellant's evidence. On 13 duly 1983 the first respondent submitted to the second respondent a minute in which he referred to his interview with the appellant and stated his intention to withdraw the offer of appointment. The first respondent wrote "I believe there is adequate grounds of adverse matters which preclude his appointment". The first respondent amplified these matters in a file note which read as follows: "Earnest Max McLeod (Max) CHAPMAN, age 39, service with NSW Police since 1967. 2. I advised him that I was reviewing his application as I was surprised to find a NSW police officer with 15 years service, a designated detective and who ordinarily might be expecting promotion to Sergeant, applying for a position of Constable. This had led me to make enquiries as to why he might be wishing to leave NSW Rolice and that certain information I'd received Requined further investigation and that I - could not 'guarantee his offer of employment to start on 18 duly. - 3. He stated that his application arose from a directive on 29/12/82 that he transfer to Sydney. While initially told that the reason was that there 'were too many experienced detectives in the Goulburn sub- -district, he stated he was satisfied it was due to his conflict with Detective Sergeant CULLEN at Goulburn and had been advised on a confidential basis that this was so. He further stated that as both he and his wife were from the country, the prospect of living in Sydney, coupled with the high cost of housing there, had caused him to decide to resign rather than go -to Sydney where, in any event, he felt his career as a detective would finish as Sergeant CULLEN had friends in high positions who would get him transferred to uniform duties. ? wey ete ee ee "s a Po -? fe reese ae 12. 4. He then detailed'a series of allegations and counter allegations between himself and CULLEN; then the Detective Sergeant at Queanbeyan. Admits when first transferred to Queanbeyan he had outside 'business' interests (pig farm) and after ceasing this, looked at another business (pet food shop) and negotiated with Tony IANELLI for a shop (this later fell through). This is his explanation for the finding of his name and telephone number in later raid on IANELLI. Bad blood developed between himself and CULLEN, culminating in him being ostracised by other detectives and omitted from any exchange of information concerning drugs and that it was alleged he was 'crook' and associated with Italians involved in criminal activity. Admits association with small group of Italians who are, he claims, businessmen of integrity. 5. Disregarding all these allegations and counter allegations, the matter of greatest concern to me was his voluntazy admission of his role in the collection of a debt. 'This related to an incident several months ago when a group of, Italian descent men in Queanbeyan went to Sydney ('to Canterbury I think it was' were his actual words) to back a mate's horse. They took Rodney De Smet, an ex jockey, with them and he was given $7000 to put on. When the horse won, Rodney was missing. Enquiries revealed he had tried to collect the $35,000 ('I think it was that much') but the bookmaker refused, stating settlement would be by cheque several days later. De Smet however was given $7,000 (the stake money) by the bookmaker and decamped to Queensland. 6. CHAPMAN then stated he had contacted and visited De Smet family in Narrabundah and ultimately arranged the transmission of a bank cheque for $6,000 from De Smet, collected this from his sister and gave it to Jimmy SANTOS. CHAPMAN said De Smet kept $1,000 as his winnings or share. Iam advised that other people claim that GHAPMAN took $1,000 as his commission and that CHAPMAN threatened -De ~Smet's sister that her brother would be assaulted if the money was not repaid. No matter which version is true, his actions in recovering this money Care], in my opinion, such to render him. unfit for appointment to AFP. CHAPMAN stated soiile of his senior officers were aware of his actions and 'thad counselled him on his part. He has made no mention of this in his application (on page 3, answer 'NO' to question 'have you ever been spoken to or cautioned by any member of a Police Force in connection with any incident or offence'). 7. There is the additional matter from his other admissions of previously engaging in outside business interests that he would probably only use AFP as a means of income while he launched another business which, if successful, would probably result in his early resignation from AFP. fee ee wm te we ep eee rere aw wen eee ee aw were gepntinen pees o- +e — NO ee ae any ee 2. ete ee te Lt tt ad oeraser 13. 8. I advised him that in view of all further information that had come into my possession, I would review his offer of appointment and make further enquiries. I drew his attention to para.3 of his offer of employment and his acknowledgment that the offer of employment was contingent upon satisfactory completion of character checks. 9. I advised him that, should I decide not to offer him appointment, I would let him know by c.o.b. on 13 July. Even if this were not the case, that it was most unlikely he would start on 18 July as originally advised. In either event, he would be in a position to defer his resignation from the NSW Police if he so wished. He said he had submitted his resignation only after getting his offer of employment and he doubted if he would be permitted to withdraw his resignation. 10. Notwithstanding this, on the basis of matters detailed above in para.5-7, I decided his application should be deemed as unsuccessful and his previous offer of employment should be withdrawn. He was advised accordingly by letter delivered personally to him at his home at 5.30pm Wednesday 13 July 1983." According to the file note the first respondent based his decision to withdraw the offer of appointment "on the basis of matters detailed above in para.5-7" (para.10 of file note). Counsel for the appellant canvassed before us at length the precise circumstances of the De Smet incident and of the appellant's outside interests. But this Court does not sit as a court of appeal from the decision of the first respondent. The Australian Federal Police Act entrusts to the Commissioner (or his delegate) the appointment of officers to the Australian Federal Police. Inevitably, much is left to his judgment. He may reach conclusions about the suitability of an applicant that another person, including the members of this Court, might not reach. But that is not to the point. Where the Commissioner or his delegate makes a decision concerning the appointment of an officer, that i : ' 14, decision is only susceptible of review within the confines of the Judicial Review Act. It cannot be disturbed simply because the judge before whom the application for review comes might take a different view of the evidence. Counsel for the appellant urged upon us that, in all the circumstances, the decision of the first respondent to withdraw the offer of appointment was one that no person could reasonably have come to. In our view that submission cannot succeed. The role of the appellant in the recovery of the $6,000 from De Smet and its transmission to Santos was one that undoubtedly raised questions of the propriety of his conduct. The submission by the appellant's counsel, in particular the emphasis placed upon the fact that the appeliant's duty book made reference to De Smet and Santos, does not remove those questions. Indeed the absence from the appellant''s records of any reference to payment of the $6,000 Ilay Only serve to add to concern about his role in the affair. We are far from saying that the appellant acted with impropriety; that is not a matter for this Court to determine. But it cannot be said that the view taken by the first respondent of the appellant's suitability for the Australian Federal- Police, having regard to the part he played in the recovery of the money from De Smet, was one that no reasonable person could have held. Nor was it shown that in reaching the decision he did, the first respondent was influenced by irrelevant considerations or that he left out of account relevant considerations. He was not sitting as a disciplinary board, required to make findings about the appellant. His task was, as a senior police officer, to if PEI me ey ie eee ee on Myre, RA A geen nate "oe 15. consider the appellant's suitability for appointment. 'Had the matter not progressed to the point where the appellant had been told to report for duty and had tendered his resignation, there was simply no basis upon which the appellant could have challenged the decision and conduct of the first respondent. But the appellant had been told that his application had been accepted, had been told to report for duty and had been persuaded to tender his resignation to the New South Wales Police Force. It is in those circumstances only that: questions of natural justice may arise. In particular there isa question whether the appellant had been given a legitimate expectation of appointment to the Federal Police and, if so, whether that expectation imposed on the respondents an obligation to give him an opportunity to deal with any matters adverse to him that they proposed or were likely to take into account. To that question we now turn. A convenient starting point (and in most respects finishing point) is the recent decision of the High Court in Kioa v. West (Minister for Immigration and Ethnic Affairs) (1985) ~60 A.L.J.R. 113. dTdudgment in that case had not been delivered when the learned primary judge gave judgment dismissing the appellant's application to review. In Kioa v. West each judge delivered separate reasons for judgment. The ratio decidendi of the majority was that because of amendments to the Migration Act "1958 and the interposition of the Administrative Decisions (Judicial Review) Act 1977, no relevant statutory framework existed evincing the legislature's intention that, in dealing with prohibited ET eam 2 Ver eee 16. immigrants, the Minister was not © obliged to observe "the: requirements of procedural fairness. We do not understand any of their Honours in Kioa v. West to have questioned the approach taken in earlier decisions that the issue whether a decision-maker is under a duty to observe the rules of natural justice involves at the outset a question of statutory construction. See Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106; Salemi v. MacKeliar (No. 2) (1977) 137 C.L.R. 396; Reg. v. MacKellar; Ex parte Ratu (1977) 137 C.L.RE 461; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487; Bread Manufacturers of New South Wales v. Evans (1981) 38 A.L.R. 93; FAI Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342. What does emerge from Kioa v. West may be found in the following passage from Mason J. at p.127: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear mamifestation of ai contrary statutory intention." : Brennan J. spoke to the same effect at p.138 when he said: "The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature': Cooper v. Wandsworth Boand of Werks (1863) 14 C.B. (N.S.) 180 at 194; 143 E.R. 414 at 420. The true intention of the legislature is thus ascertained. When the legislature Ca ee rd yearn "os tee were re es 'er 17. creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention". One further quotation will suffice, this time from the judgment of Deane J. at p.148: "In the absence of a clear contrary legislative intent, @ person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of aclass of the general public) is bound to observe the requirements of natural justice or procedural fairness". We accept with respect the conclusion reached by the primary judge that the circumstances of the present case were "sufficiently special or exceptional as to give rise to a legitimate expectation in the applicant that his appointment would not be refused without his being given an opportunity to answer the matters adverse to him which the decision-maker proposed to take into account". Those circumstances include the assurance the appellant received from Inspector Vincent that his application had been accepted, an assurance which was given both orally and in writing; the request, with which he complied, that he sign and return an acceptance of the offer of appointment; the conversations he had with Inspector Vincent directed to ensuring that he tender his resignation from the New South Wales Police Force; and conversations identifying the date upon which he was to start with the Federal Police. 18. There is nothing in the Australian Federal Police Act nor in the Regulations that manifests an intention that rules of procedural fairness shall not apply in the case of appointments to the Federal Police, where a legitimate expectation of appointment exists. Nothing said or to be said in these reasons for judgment implies the existence of such a duty where rights, interests or legitimate expectations are not affected. The appellant''s submissions tended to suggest that in some way the first respondent was obliged to adjudicate and to adjudicate correctly on the propriety or otherwise of the appellant's conduct in regard to De Smet and, to a lesser extent, in regard to the appellant's outside interests in the past and the likelihood of him prosecuting them in the future. But, in our view, the first respondent was under no such obligation. As the delegate of the second respondent, it was his responsibility to determine whether the appellant was competent and qualified to hold the rank of constable in the Federal Police. To some extent that was an objective assessment but in large part any decision made must reflect the judgment of the first respondent based on his own experience as a police officer, not least in regard to the appellant's conduct while a member of the New South Wales Police Force. Rules of procedural fairness did not bind the first respondent to give the appellant an opportunity to canvass the considerations leading him to withdraw the offer of appointment. What recent decisions do point up is "the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to eee eee aoe on ow cee we ns eee 19. turn so that he may have an opportunity of dealing with it". (Mason J. in Kioa v. West at pp.128-129.) It is apparent from the first respondent's file note and his evidence on the hearing of the application to review that he was most influenced by his assessment of the appellant's role in the De Smet incident. In cross-examination he said: "His actions in recovering the $7000 or $6000 were not the fit and proper actions of a police officer". The first respondent maintained that his assessment was based on what the appellant had told him and that he disregarded second-hand information from other sources. The primary judge made an express finding that "his decision not to appoint the applicant to the Australian Federal Police was based upon what the applicant had told him at the interview on 12 July 1983 in relation to what has been referred to as the De Smet matter". That finding was reached after the first respondent was extensively cross-examined and we are not persuaded that this Court should reach a different conclusion on a matter which so closely involved his Honour's view of the credibility of the witness. Counsel for the appellant was strongly critical of the sentence in para.6 of the file note "CHAPMAN stated some of his senior officers were aware of his actions and had counselled him on his part". This of course was in relation to the De Smet incident. Much of the criticism was directed at the use by the first respondent of the term "counselled". The first respondent did not suggest that the appellant himself had used the word . Nase 20. "counselled" at the interview on 12 July 1983 but he said it was his interpretation of what was volunteered by the appellant. The appellant had said that Detective Sergeant Gore and an Inspector Goram were aware of his actions in regard to the recovery of money from De Smet. He said that Gore or Goram or perhaps both (the transcript is not clear) said "You are a silly bugger to have got involved in it". The mention of "counselled" was the first respondent's interpretation of what had been said to the appellant. Reference to this remark was made by the first respondent in examination-in-chief; it did not appear in any of the documents. He acknowledged in cross-examination that he could be mistaken in his recollection but said "I do not believe I was". The appellant was recalled and denied having told the first respondent that anv such remark had been made to him. His Honour dealt with this matter in his reasons for judgment but made no express finding as to whether he accepted the appellant's or the first respondent's evidence on the point. However as already mentioned, he clearly accepted the first respondent's account of the considerations that led him to withdraw the offer of appointment. There is no doubt, as the first respondent commented in the file note, that the appellant made no mention of having been counselled when asked on the application form "Have you ever been spoken to or cautioned by any member of a Police Force in connection with any incident or offence". Once again, we do not think it is the function of this Court to determine whether the answer "no" to the question was, in the circumstances, accurate or inaccurate. Views may differ as to- what is meant by "spoken to or cautioned by". The first were eee eee eet, ok et —— "ere ye eee pape a a pee ie ae 21. respondent took the view that the appellant's answer was inaccurate and that was a judgment he was entitled to make. In any event, the critical issue or factor was the appellant's role in the De Smet incident. The first respondent's comment in para.6é 'of the file note that it was the appellant's actions in recovering the money from De Smet that rendered him unfit for appointment to the Federal Police reflects a view he was entitled to hold. The appellant's participation in outside business activities and the prognosis of an early resignation if he were appointed merely served to confirm a decision already reached by the first respondent. Those matters tipped even further scales which were already weighted against the appellant. The letter of 13 July 1983 speaks of information that had come to the attention of the first respondent "including that provided by you during our meeting of 12 July". The reference to "including" suggests information not provided at the interview. That information, it would appear, was something said to the first respondent by Chief Superintendent Broomby on 12 July 1983 after the interview. This aspect of the matter was left in a somewhat unsatisfactory sitate. Paragraph 7 of the affidavit of the first . respondent sworn 5 December 1983 begins: "Subsequent inquiries were made by myself which revealed that Mr. Ghapman had been questioned and cautioned over his role im the Santos/De Smet matter by his Superior Officer. It was further indicated that further action was to be taken by the New South Wales Police in relation to it". ~~ epee a ta ce ee oorep re wget wast me age eee pS 22. The first respondent was asked about this passage in cross-examination and explained it by saying that Mr. Broomby had said to him "There has been a hell of a battle between Chapman and Cullen, there's all sorts of mullock flying around ...". The first respondent was then asked to restrict his answers to "this matter", to which he gave the following information relayed to him by Mr. Broomby: "Cullen says that he's got evidence that he stood over the De Smet family to recover money which De Smet had got from Santos and that there's going to be an internal imvestigation over it . The first respondent said that this was the "subsequent information" given to him, adding that "it was further indicated that the matter was going to IID for investigation and adjudication". This was a reference to the Internal Investigation Department of the New South Wales Police Force. The suggestion that the appellant had stood over the De Smet family and the further suggestion that there was to be an internal investigation of his conduct were not matters put to the appellant at the interview with the first respondent. The latter did not have that information at the time. Nevertheless, as appears from the finst respondent's affidavit, the appellant had volunteered the following: "But some people claim that I could have got a quid out CofJ it. iT see that Cullen has tried to make trouble for me over it. A mate of mine told me or showed me that De Smet's sister had made a Statutory Declaration making allegations about me that I had said Jimmy's mate would break his bloody legs if he didn't pay the ee oe ee ae er or lie bale sie ead -— fF wer ew el, Se eee 23. money back. That is not true I didn't say anything like that." In para.6 of his file note to the second respondent, the first respondent referred to the allegation that the appellant had taken a commission and that he had threatened violence to De Smet if the money were not repaid. The first respondent had the appellant's denials and the information relayed by Chief Superintendent Broomby. He said, in the file note, "No matter which version is true, his actions in recovering this money Carel, in my opinion, such to render him unfit for appointment to AFP". Thus, on his own initiative, the appellant put his case in relation to these matters. The question of a possible investigation by the New South Wales police does not appear to have played any part in the decision reached by the first respondent. We are not persuaded that the appellant was denied an opportunity to deal with any consideration that played a part in the decision reached by the first respondent. That decision was essentially one for the first respondent unless the appellant can make good one of the grounds in s.5 or s.6 of the Judicial Review Act. This he has failed to do. One cannot leave this case without concern for the position in which the appellant found. himself because -rhe had tendered his resignation to the New South Wales Police Force. Nevertheless the appeal must be dismissed. Leertify that this and the 22 preceding pages are a true copy of the reasons for judgment herein of the Court (Go w "> Aggociate Dated 15 July 1436,