' f c - CATCHWORDS Commonwealth Public Service - promotion of officer to advertised vacancy - duties of office advertised incorrectiv - applicant qiven incorrect list of duties - applicant also given correct list of duties - whether proceedings before Promotion Appeal Committee miscarried because the duties of the office were to be reqarded as those incorrectly advertised - whether applicant accorded procedural fairness - whether Appeal Committee properly applied legislative provisions defining the expression "relative efficiency", the qareater "efficiencv" of the officer making the appeal being the only relevant consideration - whether Committee qave equal weight to each of the applicable matters in the definition of "efficiency" - whether the Committee imposed an onus of proof or persuasion upon the applicant. Merit Protection (Australian Government Emplovees) Act 1984, 6, 7, 9, 10, 37. Public Service Act 1922, ss. 27, 50, SOA, 50B, 5OD. ANTHONY JOHN McMAHON v. DAVID REGINALD BROWN and ORS. 1 | No. G185 of 1986 Kei , core lat toe Coram: Sheppard J. 'fe 1S seas. Pedls Date : 12 September 1986 eS "SOE Coun cs ann OT AALIA 1 Opa Place: Svdnev \ Mansy IN_THE FEDERAL COURT OF AUSTRALIA. 3 NEW SOUTH WALES DISTRICT REGISTRY No. G185 of 1986 GENERAL DIVISION BETWEEN : ANTHONY JOHN McMAHON Applicant DAVID REGINALD BROWN and ORS. Respondents CORAM: SHEPPARD J. DATE : 12 SEPTEMBER 1986 REASONS FOR JUDGMENT HIS HONOUR: This is an application for judicial review pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977, The application seeks the review of the decision of the first three respondents as members of a Promotion Appeal Committee to disallow an appeal by the applicant aaainst the promotion of Mr. P.R. Gentle who is the fourth respondent. In the application the ground relied upon was that the decision involved errors of law. In argument reliance was placed additionally ona submission that. because of certain matters arising prior to the hearing of the appeal. the applicant, in the TN_THE FEDERAL COURT OF AUSTRALTA No. G185 of 19 mo NEW SOUTH WALES DISTRICT REGISTRY were GENERAL DIVTSTON BETWEEN : ANTHONY JOHN McMAHON Applicant | DAVID REGINALD BROWN and ORS. Respondents CORAM: SHEPPARD J. PLACE: SYDNEY DATE : 12 SEPTEMBER 1986 MINUTES OF ORDER THE COURT ORDERS THAT: — L. The application be dismissed. 2. The Applicant pav the respondents' costs of the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 2. circumstances which in consequence prevailed, was denied procedural fairness bv the Committee. Both the applicant, Mr. McMahon, and Mr. Gentile have for manv vears been employed in the Australian Government Solicitor's Office in Svdnev. For the past three years or so Mr. McMahon has been engaged in conveyancing and othe similar work. In connection with this work he has been required to qo to court, but onlv on infrequent occasions. Mr. McMahon and Mr. Gentle were among the applicants for a position notified in the Commonwealth of Australia Gazette on 2 May 1985. The position was advertised as follows:- "Senior Leaal Officer $31921-34701 (several positions), Sydnev Duties: Perform important legal work related to the activities of the Director of Leaqal Services Office, N.S.W. Provide advice on leaal matters to officers of Departments and Authorities. Act as consultant to, train and supervise Leaal Officers as required. Exercise delegations and authorisations in respect of matters for which responsible. Qualifications: A dearee recoanised by the Board as appropriate to the duties of the office or admission as a practitioner, however described, of the Hich Court or the Supreme Court of a State or Territory of Australia. Note: Contact officer for inquiries, J. Stubbs..." Mr. Gentle's appointment was notified in the Gazette for 19 September 1985. The notification opened with the words:- "PLR. Gentle: 550-56933 From: Legal Officer $18681-30835., Svdney ~ To: Senior Leqal Officer $32751-35603, Office of the Director of Leaal Services, Pool Section, Sydney (No. 1067) (PS 16, 2.5.85)" There followed the duties of and qualifications for the position. These were stated in terms identical with those of the advertisement for the position earlier set out. Mr. McMahon said that he decided to appeal against the decision to appoint Mr. Gentle to the vacancy. In order to prepare a supporting statement for his appeal, Mr. McMahon sought a copy of the duty statement applicable to the position. He attended the Management Services Branch of the Department in Sydney and saw a Mr. Watkins. He told Mr. Watkins he needed a copy of the duty statement. Mr. Watkins handed Mr. McMahon a document saying, "This is the statement you want". The substance of the Statement was as follows:- "L. Perform important legal work related to the activities of the Regional Office. 2. Provide advice on leqal matters to officers of Departments and Authorities. 3. Act as consultant to, train and supervise Legal Officers as required. 4, Exercise delegations and authorisations in respect of matters for which responsible". It is to be observed that the statement of the duties is similar to the statement of them in the notification in the Gazette of 4. the vacancy and the notification therein of Mr. Gentle's appointment. There is evidence from a Mr. Shirvington, who was another applicant for the position, that he was given a similar statement of duties to that qiven Mr. McMahon by Mr. Watkins. Mr. Brown aave an account of the Committee's deliberations. He said that the Committee had before it, in relation to the various appeals before it (Mr. McMahon's appeal was not the only one), the following documents:- "KR statement from the Director of Leaal Services setting out the reasons for the selection of the 11 promotees. A copy of the report of the departmental selection committee which had recommended the promotion of the 11 promotees. Departmental selection criteria for the position of Senior Leqal Officer. A copy of the duty statement for the position of Senior Leqal Officer. Supporting statements from all parties including the Applicant and the Fourth Respondent". Mr. Brown said that the Committee determined that the Departmental selection criteria referred to in the third 5. paragraph gave effect to the requirements of s.50A of the Public Service Act 1922 in relation to the question of the relative efficiency of the parties to the appeal. I shall refer to the terms of the section in a moment. The selection criteria were as follows:- "Admission as a practitioner, however described, of the High Court or of the Supreme Court of a State or of a Territory of Australia. Experience in Litigation, advising, legal research and the drafting of documents and a sound knowledge of the practice and procedure of Federal Courts and the Courts of the State or Territory where located. Profession of the following qualities and attributes: (i) Oral and written fluency. (ii) An abilitv to perform work without direct supervision. (iii) An ability to research leqaal problems, to analyse factual issues and apply principles of law to those issues. (iv) Ability to liaise and to communicate effectively with counsel, clients, witnesses, members of the legal profession and with fellow officers. (vw) Ability to think clearly and logically and to present reasoned argument to a court. (vi) Ability to supervise and direct subordinate staff when required". The three principal paragraphs of these criteria are referred to in some of the documents by numbers, namely, 1, 2 and 3. 6. The dutv statement referred to in the fourth paragraph of the list of documents said by Mr. Brown to have been before the Committee was in the following terms:- "L. Conduct the more important or complex matters of the Legal Work Unit as allocated. 2. Undertake court appearances as necessary. 3. Assist the Principal Legal Officer as required or directed with trainina and supervision of officers in the work unit. 4. Keep the Principal Leqal Officer of the work unit informed of progress of matters bringing to notice anv inability to cope with work to the standards and within time scales required". It is to be seen that the duties are expressed ina form different from that in which they were expressed in the notifications in the Gazette and in the duty statement handed to Mr. McMahon by Mr. Watkins. Whether there was anv difference in substance between the two statements is a matter later to be considered. Mr. Stubbs is the Officer Manager of the Svdney Office of the Australian Government Solicitor. Mr. Stubbs said that the dutv statement referred to by Mr. Brown correctly described "the duties of the 'pool' positions of senior leqal officer and had applie(d) to these positions since 8 Februarv 1985". He said the Gazette notice, and thus. inferentially, the document handed Mr. McMahon by Mr. Watkins. did not correctiv state the duties of the 7. positions. It will be recalled that the notification in the Gazette of 2 Mav 1985 nominated the contact officer for enquiries as Mr. Stubbs. There is an issue between Mr. McMahon on the one hand, and Mr. Stubbs on the other, as to whether Mr. McMahon saw what Mr. Stubbs has described as the correct dutv statement. Mr. MecMahon's evidence is that he did not see the statement at any time prior to the hearing of his appeal. Wis recollection was that he first saw it when he received a copy of Mr. Brown's affidavit. Until then he believed the duty statement was in accordance with that handed him by Mr. Watkins. Mr. Stubbs was a member of the selection committee established by the Director of Leqal Services to interview applicants for the vacant position. On 30 August 1986 the committee reported to the Director and made recommendations for the filling of this and a number of other vacancies. Its recommendations were accepted by the Director. Mr. Stubbs gave evidence of three occasions on which Mr. McMahon received a copy of the dutv statement which was used by both the selection committee and the Promotion Appeal Committee. He said the selection committee commenced its interviews on 5 Julv 1985. At the interview each applicant was given by Mr. Stubbs or another member of the Committee a copy of the duty statement and also of the selection criteria. On 12 September R. 1985, after the Committee had made its recommendations, he handed to each person interviewed by the Committee a copy of the report made bv it. Annexed to the report was a copy of the duty statement. Then on 4 February 1986 he gave a copy of the Departmental statement, which had been prepared for the purposes of the appeal, to the persons whose promotions had been notified in the Gazette and to the persons appealing against those promotions. It is apparent from the way Mr. Stubbs aave his evidence that he does not recollect handing Mr. McMzxiion on each eccasion a copy of the dutv statement. His recollection rather is that he aave documents om each occasion to each applicant and that these documents should have contained the duty statement along with other material. When pressed in cross-examination., Mr. McMahon was not as adamant as he had been in his affidavit and his evidence in chief that he had never received the duty statement. He conceded that before he went in to be interviewed by the Promotion Appeal Committee he was qaiven access to the Departmental documents concerning his case. He also said that he had had most of them because he had applied for them under the Freedom of Information Act 1982. It was suagested to Mr. McMahon that he must have seen the duty statement amongst the documents he had. He conceded that it was possible but added that he could not recall reading the statement when he Looked at the papers. T am uncertain whether this refers to the evidence aiven about access to the documents immediatelv before interview bv the Appeal Committee or 9. whether it refers qeneraliv to the access he had under the Freedom of Information Act. Mr. McMahon went on to sav. "Look, in my mind at that particular time - I had been in that office for a longa time and I was convinced I knew what the duties of the job were ..." In my opinion the balance of probabilities favours the view that the dutv statement was qiven to Mr. McMahon on more than one occasion alona with other documents. There is no reason not *o accept Mr. Stubbs' evidence. If that evidence were that he had only given the document to Mr. McMahon on one occasion, there would be room for misunderstanding. But it seems to me to be most unlikely that some mistake or error could have crept into the system on three distinct occasions separated as they were from each other by an interval of some months. I think the truth of the matter is revealed in the answer made by Mr. McMahon which IT have quoted. He had acted in the position he believed was available for a lona time. He did know the duties of that position intimatelv. He was not concerned to look closely at either the dutv statement which appeared in the notification in the Gazette and the statement qiven him by Mr. Watkins or the duty statement which was in fact used by the two committees. Accordingly. I reject Mr. McMahon's evidence that he did not see the duty statement used by the committees until after these proceedings had been commenced. 10. Mr. Brown qave an account of the proceedinas before the Promotion Appeal Committee and of its deliberations. He explained how the Committee rated Mr. Gentle and Mr. McMahon. Because of submissions made on behalf of Mr. McMahon it is necessary to refer to the detail of this evidence. Tt is contained in paras. 9, 17 and 18 of Mr. Brown's affidavit which are as follows:- "9, The Committee adopted a 5 point scale to rate each of the parties against each element of the Selection Criteria (excludina criterion 1). The ratings were as follows: Description Symbol Rating Well above averaade + = 2 Slightly above O+ = 1 averaae Average 0 = 0 Slightly below o- = -1 averadce Well below averade - "Nw 17. (T)he Committee's rating in respect of the Applicant and the Fourth Respondent were as follows: Selection Applicant Fourth Criteria Respondent 2 O+ = 1 0 = 0 3 (i) 0 = 0 Or = 1 3 (iid O+ = 21 0 = QO 3 (iii) 0 = 0 Oo = O 3 (iv) 0+ = 1 O+ = i 3 (wv) QO- = -1 O+ = 1 3 (wi) 0 = 0 O+ = 21 TOTAL 2 4 18. The Committee. therefore. found that, having reaard to the Selection Criteria. the Fourth Respondent was more efficient to perform the duties of Senior Leqal Officer. It therefore held that the Applicant's around of appeal against the Fourth Respondent. namelv qreater ll. efficiency than the Fourth Respondent. had not been established and disallowed his appeal". An objection to paragraph 17 was in part upheld. T have quoted oniy so much of the paragraph as was admitted in evidence. It is next necessary to refer to the relevant provisions of the leaislation. These are contained in the Merit Protection (Australian Government Emplovees) Act 1984 and in the Public Service Act 1922. particularly in amendments thereto which came into force in 1984. Part II of the Merit Protection Act provides for the establishment, functions and powers of the Merit Protection and Review Agency. One of the functions of the Agency is to arrange for the establishment of. and to ensure the proper and efficient operation of, Review Committees in accordance with Division II of Part II of the Act: see s. 6. By section 7, which is in Division II, a Review Committee means. inter alia, a Promotion Appeal Committee established under Sub-division B of Bivision II which is entitled "Promotion Appeal Committees". In section 9 the Agency is to arrange, from time to time, for the establishment of Promotion Appeal Committees required for the purposes, inter alia, of determining appeals made under s. 50B of the Public Service Act 1922 against the promotion of an officer. By section 10 a Promotion Appeal Committee is to be constituted by a chairman, who shall be a person appointed bv the Agency, a person nominated bv the secretary of the department in which the promotion is the subiect of the appeal and a person nominated by 12. the appropriate industrial organization of emplovees. In the absence of such a nomination, the third member is nominated in the manner provided for in the reaqulations. Mr. Brown. the chairman, was the person appointed by the Agency, Mr. Doherty, who is the second respondent, was the person nominated by the Secretary of the Department and Ms. Campbell. the third respondent, was the third member. Section 37 of the Merit Protection Act provides for the procedure to be followed by Review Committees. It is unnecessarv to refer to the detail of the section. Section 27 of the Public Service Act provides that the Secretary of a Department, for the purposes of enabling the Department to perform its functions, mav, in writing, create an office in the Department or abolish an office in the Department. Sub-section 50(1) of the Public Service Act provides that, where an office in a Department is vacant. the secretary of the Department may cause notification of the vacancy to be given in the Gazette. It was pursuant to that provision that notice of the vacancy was notified in the Gazette on 2 Mav 1985. Sub-section 50(3) empowers the Secretary of a Department in which a vacant office exists to transfer or promote an officer to fill the vacancy. By sub-section 50(5) the promotion of an officer under sub-section (3) is to be notified in the Gazette and is subject to appeal under s. 50B of the Act. Mr. Gentle's appointment was notified in the Gazette pursuant to this 13. provision. Section 50A provides for the selection of officers for promotion. In the selection of an officer for promotion toa vacancy, consideration is to be given only to the "relative efficiency" of the officers available for promotion to the vacancy. "Efficiency" is defined for the purposes of the section to mean the suitability of the officer for the discharge of duties cf the kind to be performed in the vacant office having regard to the following matters:- "(a) the capability of the officer to discharge those duties; (b) the standard of the work performed by the officer in other offices; fc) any experience possessed by the officer relevant to the discharge of those duties; (d) the training and educational qualifications of the officer; (e) in aocase where the vacant office concerned is a part-time office - the willingness of the officer to undertake the duties of the office on the basis that the hours of attendance applicable to him will be those specified in the declaration under sub-section 29B(1) in relation to the office; (ft) in a case where the vacant office concerned is a full-time office ~ the willinaness of the officer to undertake the duties of the office ona full-time basis: (a) anv personal qualities of the officer relevant to the discharge of those duties, See sub-section 50A(2). Sub-section 50A(3) provides that the Public Service Board mav, by notice published in the Gazette. declare that, in assessina the efficiencv of officers for promotion to offices 14, included in a specified class of offices. qreater weight may be aiven to one or more of the matters referred to in paras. (a) to (a) inclusive, being a matter or matters specified in the declaration. than to the other matter or matters referred to in those paragraphs. No such notice was published in relation to the vacancy here in question. Section 50B provides for appeals. The only ground of appeal is the greater eificiency of the officer making the appeal. Section 50D provides for the determination of appeals. It is unnecessary to refer to the detail of this section. The submissions made by counsel for the applicant were as follows :- (1) The Promotion Appeal Committee was under a misapprehension as to what were the duties of the office in respect of which it was considering the applicant's appeal. Section 50A of the Public Service Act obliged it to consider the relative efficiency of Mr. McMahon and Mr. Gentle. "Efficiency" was defined to mean the suitability of the officer for the discharge of duties of the kind to be performed in the vacant office having regard to the various criteria specified in the lettered paragraphs of sub-section 50A(2) earlier set out. Fundamental to a consideration of the efficiency of the two officers was therefore the nature of the duties to be performed in the vacant office. The Committee assumed the duties to be as (2) (3) (4) 15. stated in the documents before it. In fact thev were the duties stated in the notification in the Gazette and in the statement of duties qiven Mr. McMahon by Mr. Watkins. This submission is an alternative to the first. If the Committee were under no misapprehension as to what the duties were, Mr. McMahon was. The effect of that misapprehension on Mr. McMahon's part was to deny hima fair opportunity to put his case before the Committee. The Committee failed to have regard to all of the matters specified in the lettered paragraphs of sub-section 50A(2) earlier set out. It was not suaqgested that failure to have reaard to the matters specified in paras. (e) and (f) was of significance: but each of the other paragraphs applied. It was submitted that the Committee's concentration on the selection criteria provided by the Department diverted its attention from matters which s. 50A of the Public Service Act obliged it to consider. Insofar as the Committee did have regard to the specified matters, it failed to qive them the weight which it was required to give them as the result of an implication to be drawn from sub-section 50A(3). That implication was that. in the absence of a notice declaring that, in assessing the efficiency of officers for promotion to offices included in a specified class of offices, areater weight might be given to one or more of the matters referred to in paras. (a) to (qa), each of the matters in the applicable paragraphs was to be aqiven equal weiaht. No such notice having been 16. published, s. 50A required the Committee to give equal weiaht to each of the matters specified in the applicable paragraphs of sub-section (2). (5) The Committee conducted the appeal as if there were a burden of proof or a burden of persuasion on Mr. McMahon when in truth there is no such burden onan appellant before a Promotion Appeal Committee. Before coming to deal with thesc submissions, it is necessary to mention some further evidence. Reference was earlier made to a "pool position". Mr. McMahon said that he did not understand what such a position was. It was explained by Mr. Stubbs. He said that within the Office of the Australian Government Solicitor there were three levels of legal officer positions, namely, principal legal officer, senior legal officer and leqal officer. The positions below the rank of principal leaal officer, that is. senior leqal officer and leaqal officer, were called pool positions. They were called by that name because it agave the Director the flexibilitv to move people from one position to another on a needs basis or on a rotational basis if employees requested rotation. He said the Office was divided into nine sections. People at the senior leaal officer and leaal officer level could he asked to work in any one of those sections. Mr. Stubbs made it clear, however, that people were not moved from one section to another aaainst their will. He said anv such move would be a matter of agreement. Sometimes leaal officers sought reaqular moves in order to obtain a broad 17. base of experience. At the senior leqal officer level vacancies sometimes occurred leading to people being canvassed and asked if thev were prepared to move. In summary Mr. Stubbs said that the office had a pool of leqal officers and senior legal officers within which the Director might move people as and when required. In the course of the evidence he gave concerning the deliberations of the Committee, Mr. Brown recounted a conversation with Mr. Doherty in which he asked Mr. Doherty whether the positions in question were pool positions. According to his evidence, Mr. Brown said to Mr. Doherty, "Are these pool positions and do the people have to move between the various senior leqal officer work units?" Mr. Doherty said that they did. Mr. Brown continued, "Well, that being the case, do the selection criteria have the same weight in each work unit or do they have different weights?" Mr. Doherty said, "... the emphasis would be different on each criterion, depending on the work unit in which the person was operating". In further discussion Mr. Brown said that they decided to give equal weight to the selection criteria for that reason. However, he said that he did ask Mr. Dohertv whether the criteria would require different emphasis in different work units. Mr. Brown was, of course, speaking of the selection criteria, not the matters specified in the lettered paragraphs of sub-section 50A(2). Mr. Brown said that in the course of Mr. McMahon's interview Mr. Dohertv . made it clear to him that the positions were pool . 18. positions. Mr. Dohertv said to Mr. McMahon, "We're not just looking at the conveyancing position. we're looking at a pool situation". Mr. McMahon said that he understood. Mr. Brown said that this matter was referred to more than once during the interview. I accept Mr. Brown's evidence of his conversations with Mr. Doherty and his account of what was said by Mr. Doherty to Mr. McMahon during the interview. I come now to the submissions relied upon by counsel for Mr. McMahon. In the consideration of the submissions a first matter is to determine whether the differences between the two statements of duties are differences of substance or differences of form only. I have reached the conclusion that the differences are differences of substance. In the discussion that follows I shali refer to the duties which were listed in the notifications in the Gazette as "the advertised duties" and those to which the two committees paid reqard as "the actual duties". The lists will be referred to as either the "advertised list" or the "actual list". A comparison of the two lists vields the following conclusions:- (a) The duties specified in item 1 in each case are in substance similar. (b) The duties stated in item 2 of the advertised duties is distinctly different from that stated in item 2 of the 19. actual duties. Neither finds a counterpart in anv of the other duties stated in the remaining items of the other list. Advice may be encompassed in item 1 of each list. If that be so, the statement in item 2 of the advertised list is superfluous. There is no mention of court appearances in any part of the advertised list. (c) The items numbered 3 in each list are not different in substance. (d) The statements in items 4 of each list bear no relation te each other. The matters referred to in each are noc mentioned in anv item of the other list. In passing I should say that the differences between the two lists is, in the absence of any explanation for them - none was offered in evidence - extraordinary. Especially is that so in the light of Mr. Stubbs' evidence. It was he who emphatically said that the duties were those stated in the actual list. Yet he was stated in the notification of the vacancy in the Gazette to be the officer to whom inquiries were to be addressed. The legal Ssiqnificance of the differences is a matter for consideration. But, whatever the outcome of these proceedinas, one would hope that a similar situation will not recur. The first submission made on behalf of Mr. McMahon concentrates attention on the words, "for the discharge of duties of the kind to be performed in the vacant office" in the definition of "efficiency" in sub-section 50A(2) of the Public 20. Service Act. This is ail important for the application of sub-section 50A(1) ands. 50B because "relative efficiency" is the only consideration. If the duties were those stated in the advertised list, the consideration of the matter by the Promotion Appeal Committee proceeded on a false assumption. If thev were as stated in the actual list. that is not the case. Counsel for Mr. McMahon has submitted that the duties stated in the advertised list are conclusively the duties of the advertised position. In his submission the substitution of a different list of duties was an irrelevant circumstance. There is nothing in the legislation which requires the statement of the duties to be performed in the vacant office to be stated in the notification in the Gazette. Neither s. 27 nor s. 50A of the Public Service Act requires this to be done. It would be lawful to advertise the vacant office without mention of the duties to be performed in it. Thus the erroneous and misleading statement of duties which appeared in the advertisement is not in itself determinative of what the outcome of this case should be. The Committee was, as a matter of law, entitled to proceed to consider the appeals before it upon the footina that the duties were as stated in the actual list. The first submission made on behalf of Mr. McMahon must, therefore. be rejected. TIT come to the second submission. Undoubtedlv the Appeal ai. Committee had the Gazette notification before it. But it would not have paid it great attention, at least insofar as the duties of the office were concerned. For those it had the statement in the actual list. It would not have been alerted to the differences in substance which there were. Yet, obiectively speaking, the misleading statements made in relation to the duties of the office required it to take great care to ensure that appellants were aware of, and appreciated the nature of, the actual duties of the office to which they sought appointment. A similar obligation was cast on the selection committee but that is by the way. If steps to ensure that appellants did not misunderstand the duties of the office, there would be a substantial risk that procedural fairness would be denied one or more appellants so that the proceedings before the Committee would miscarrv. That is indeed what counsel for Mr. McMahon has submitted occurred in the present case. In order that the submission may be properly understood, it is necessary to bring into consideration the emphasis placed by the Committee on the importance of court work in the discharge of the duties of the position. a matter not mentioned in the advertised list of duties. I refer to the evidence qiven by Mr. Brown concerning his conversation with Mr. Dohertv about this matter. I also refer to Mr. Brown's evidence of what Mr. Doherty said to Mr. McMahon durina the interview about the positions beiria "pool" positions. Mr. Dohertv did not say anything specifically about appearances in court, but, he did sav, "We're 22. not just looking at the convevancing position. We're looking at a pool situation". Mr. McMahon said that he understood. In his evidence Mr. McMahon said that he did not know what a "pool" position was, although he had often heard of the expression. He said that he had endeavoured to find out but without success. Mr. McMahon is an experienced solicitor who has been in the Svdney office of the Australian Government Solicitor for many vears. I regret to say that I cannot accept Mr. McMahon's evidence in this respect; I think it is against ail the probabilities. That being so, Mr. Doherty's statement to Mr. McMahon at the interview - a statement that Mr. Brown said was made more than once - concerning the positions being "pool" positions. and Mr. McMahon's statement that he understood, are of the utmost importance. The disadvantage that an appellant in Mr. McMahon's position may have suffered from the use by the Committee of a different list of duties would arise only because of the Committee's emphasis on court work. This would be especially so if such an appellant had concentrated on convevancing and similar work and thought, as Mr. McMahon said he did, that he was in realitv applving for permanent appointment to the position in which he had acted for a substantial period. That the Committee's emphasis on court work did play an important part in its decision is to be seen from paragraph 17 of Mr. Brown's affidavit earlier quoted. The relevant criterion is there 23. numbered 3(V). The assessment of Mr. McMahon was -1l; that of Mr. Gentle was +l. In the light apparent underst could not have be of what Mr. Doherty said to him and of his anding of the implications of it. Mr. McMahon en under any misapprehension about the place of court work in the Committee's deliberations. To be added into the scales is possession the a carefully, but h circumstances I the fact that Mr. McMahon did have in his ctual list of duties. He mav not have read it e had the opportunity of doing so. In those consider that the advertised duties did not mislead Mr. McMahon nor disadvantage him in presenting his case to the Promotion accorded procedur taken into accoun (1983) 77 F.L.R. distinquishable f Appeal Committee. I am satisfied that he was al fairness. In reaching that conclusion I have t the decision of this Court in Hurt _v. Rossall 173, but, in my opinion, that case is plainly rom this one because of its different facts. The second submission therefore fails. The basis fo alleged failure sub-section 50A(2 yr the third submission lies in the Committee's to direct its mind to the applicable matters in ») of the Public Service Act in which the word "efficiency" is defined. In counsel's submission the Committee iqnored the prov entirely on the This was, so he isions of sub-section 50A(2) and concentrated selection criteria formulated bv the Department. said. to be seen in the statement of reasons 24. furnished by Mr. Brown to Mr. McMahon pursuant to s. 13 of the Judicial Review Act. The relevant parts of the reasons are as follows:- "In reaching its decision, the Committee considered the relative efficiency of the parties in terms of Section 50A(2) of the Public Service Act. It also assessed the claims of the parties for the position against the selection criteria used bv the department. These criteria were:- The criteria were the selection criteria earlier set statement of reasons continued:- "The Committee found that you satisfied the selection criteria and should be considered efficient for the performance of the stated duties. However, having agreed that both vourself and Mr. Gentle satisfied criterion 1 to the required extent and that there were no siqnificant differences detected between you in relation to criteria 3 (iii) and 3 (iv), the Committee after careful consideration concluded in relation to each of the other criteria: Criterion 2 You were rated sliahtly above average and Mr. Gentle average, in view of your greater depth of experience in the various components of legal work detailed. Criterion 3 (i) You were both considered to have the required deqree of written fluency. but Mr Gentle was able to demonstrate he was more fluent orallv and this gave him an edae in this criterion. You were assessed as average and Mr. Gentle slightly above averace. Criterion 3 (ii) You were both considered to have the capacity to work without direct supervision, but vour greater experience enabled you to be rated sliahtlv above out. The 25. average and Mr. Gentle average. Criterion 3(v) Mr. Gentle was rated clearly ahead of you in this regard, in that he was rated slightly above average and you were rated slightly below averaqe. Mr. Gentle was able to demonstrate to the Committee a a@reater ability to think clearly and logically and your referee Mr. A. Walker confirmed the Committee view that vou would not be a good court advocate. Criterion 3(vi) Mr. Gentle was able to indicate a greater understanding of the role of a supervisor and was rated slightly above average. You were rated average based on your response to questioning and vour referee's comment. 'Mr. McMahon is a reasonably competent supervisor of staff'. Peewee eee reese eeeeee ner eeeeenases er ereeeeeeseseeseoe Having reaard to the 'pool' nature of the Senior Legal Officer positions and the importance of the personal attributes required to perform effectively in the positions. the Committee decided to qive criterion 2 and each sub-division of criterion 3 equal weight. On this basis and after making its enquiries, the Committee considered that Mr. Gentle more fully met the selection criteria than vou did. The Committee determined that vou had not established the arounds of vour appeal of aqreater efficiency and vour appeal was disallowed". The leaislative provisions relevant to a consideration of counsel's submission are those contained in s. 50A. It will be recalled that sub-section (1) provides that in the selection of an officer for promotion to a vacancy, consideration shall be qiven onlv to the relative efficiency of the officers available for promotion. Sub-section (2) exhaustivelv defines the word "efficiency". It means the suitability of the officer for the discharge of duties of the kind to be performed in the vacant 26. office having regard to the matters set out in the seven lettered paragraphs which I have earlier quoted. The provisions of s. 50A, of course, apply to all areas of the Public Service. It would not, therefore, be wrona fora selection committee or a Promotion Appeal Committee to rely on criteria specially formulated for the qualifications, experience and skills needed for the particular position which is in question. In other words, a committee would commit no error, if it relied on criteria, so long as they did not contain matters made irrelevant by sub-section 50A(2) and thus divert it from its obligation to have regard only to the applicable matters in the lettered paragraphs of the sub-section. The matters covered by the criteria would also need to comprehend ail the applicable matters therein. A first step in dealing with the submission is, therefore, to compare the selection criteria with the relevant paragraphs of the sub-section. Paragraphs (a) and (d) refer to the capability of the officer to discharqe the duties of the office and to the training and educational qualifications of the officer. In my opinion the same ground is covered by paragraphs 1 and 2 of the criteria. These refer specifically to the qualifications and tvpe of experience which the holder of the office must have. Unless an officer has the qualifications and experience mentioned in paragraphs 1 and 2, it is unlikely that he would be capable of discharging the duties of the office as required by para. (a) of 27. the sub-section. The criteria specified in the sub-paragraphs of paragraph 3 also relate to the capability of the officer to discharge the duties of the office. It is mecessary, however, to consider whether the criteria gave effect to the matters specified in paras. (b). (c) and (gq) of the sub-section. In my opinion both criteria 2 and 3, although not in express terms, direct the Committee's attention to the standard of the work performed bv the officer in other offices: see para. (b). Likewise, they encompass the matters referred to in para. (c), namely, experience possessed by the officer relevant to the discharge of the duties. Upon the basis that the position was a "pool" position, each of the matters specified in criteria 2 and 3 would. inferentially, require consideration of the officer's relevant experience. That leaves the matters specified in para. (q) of the sub-section. It is not clear to me that this paragraph applied to the circumstances of this case. I think the better view is that it did not so that. like paras. (e) and (f), it may be left out of account. But if that view not be correct, I consider that criteria 2 and 3 again, at least inferentially, direct the Committee's mind to the matters referred to in para. (qa). Indeed, each of the matters in the sub-paragraphs of criterion 3 require personal qualities of various kinds in addition to professional qualifications and experience. It follows from the analysis which I have undertaken that 28. there was no departure from s. SOA by the Committee in the respect relied upon in the submission. All that happened was that selection criteria having special reference to the vacancv in question were formulated as a quide to the Committee's deliberations. It follows that the third submission must be rejected. The starting point for a consideration of the fourth submission is that Mr. Brown stated in his reasons that, having regard to the "pool" nature of the positions and the importance of the personal attributes required to perform effectively in the positions, the Committee decided to give criterion 2 and each sub-division of criterion 3 equal weight. Criterion 1 related to the formal qualifications of the applicants for the position. Such qualifications are not separated out in anv of the matters specified in the paragraphs of sub-section 50A(2). but, as I have mentioned, they are included within the matters specified in paras. (a) and (d). In the light of my conclusions reached when dealing with the third submission, it must follow that the Committee did in fact accord equal weight to each of the matters specified in the paragraphs of sub-section 50A(2): that is because the effect of the criteria was to specify those matters as they applied to the particular office which was in question. The submission must therefore fail. Mv conclusion in this reqard makes it unnecessary to consider the effect of the provisions of sub-section 50A(3) on the earlier 29. sub-sections. In counsel's submission each of the matters specified in sub-section (2) was to be accorded equal weicht unless there were a declaration pursuant to sub-section (3). In the circumstances it is umnecessary to express a view on the submission and I do not. That leaves the fifth submission. In my opinion the Committee did not conduct the appeal as if there were a burden of proof or persuasion on Mr. McMahon. In support of the submission reliance was placed on statements in Mr. Brown's reasons such as, "You satisfied the selection criteria", "Both yourself and Mr. Gentle satisfied criterion 1 to the required extent", "Mr. Gentle was able to demonstrate he was more fluent orally", and a number of other such statements. In my opinion the language used by the Committee was no more than the language of decision. It does not indicate that anv burden of proof or persuasion was placed on anv party invoived in the appeal. From time to time this Court has had occasion to sav that it will not construe the statements of lay tribunals over-critically, but will look to the substance of what is said. If that is done inthis case, there is not revealed the error for which counsel for the applicant contends. Mr. Brown has said in the earlv part of the statement of reasons that the Committee considered the relative efficiencv of the parties in terms of s. 50A. One ought not lightly assume that the Committee proceeded without proper reaard to the section which applied so directly to its deliberations. Unless there were internal evidence in the reasons or clear evidence otherwise a) wt a0 0 f 30. that a4 departure from its obliaations had occurred, the Court should not interfere. Accordingly, the fifth submission is rejected. In the result the submissions made on behalf of the applicant are rejected. The application is dismissed with costs. | certify that this and the 27 preceding pages are 4 trué copy of thé réasonis for judgment herein of The Henourablé fis 12 SEPTEMBER /786