CATCHWORDS ADMINISTRATIVE LAW - Application for judicial review of decision of Promotions Appeal Board ~ Natural justice - Failure by Board to consult referee nominated by applicant. s Telecommunications Act 1975 s.51 Administrative Decisions (Judicial Review) Act 1977 s.5 Matthews v Oaten, (Forster J, 29 August 1986, unreported), referred to. NSW G.462 of 1986 DAVID DONALD MCNAB v_ MERVYN ROYCE GILDEA & ORS Wilcox J Sydney 17 December 1986 Pse i) as J ev IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISION CORAM: PLACE: DATE: BETWEEN: AND: No. G.462 of 1986 DAVID DONALD McNAB Applicant MERVYN ROYCE GILDEA First Respondent RONALD BEWSELL Second Respondent TOD MERGIS WILCOX J SYDNEY 17 NOVEMBER 1986 Third Respondent AUSTRALIAN TELECOMMUNICATIONS COMMISSION " Fourth Respondent COLIN GRAHAM WILLIAMS Fifth Respondent MINUTES OF ORDER IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISION CORAM: PLACE: DATE: WILCOX J SYDNEY 17 DECEMBER 1986 BETWEEN: AND: No. G.462 of 1986 DAVID DONALD MCNAB Applicant MERVYN ROYCE GILDEA First Respondent RONALD BEWSELL Second Respondent TOD MERGIS Third Respondent AUSTRALIAN TELECOMMUNICATIONS COMMISSION Fourth Respondent COLIN GRAHAM WILLIAMS Fifth Respondent EXTEMPORE REASONS FOR JUDGMENT THE COURT ORDERS THAT: Note: The decision made by the Promotion Appeals Board constituted by the first three respondents in respect of the appeals against the applicant's provisional appointment be set aside. The appeals be remitted to the Promotions Appeal Board differently constituted for resolutior The fourth respondent, Australian Telecommunications Commission, pay the costs of the applicant and of the fifth respondent of this Application. The operation of the order (2) hereof be stayed until the determination of any appeal from these orders or any earlier order of the Court or of a judge. Liberty be granted to the applicant to apply on two (2) days' notice for an order removing the stay. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. David Donald McNab, the applicant, has since 1946 been employed by the Australian Telecommunications Commission (Telecom), the fourth respondent, or its predecessors: first, as a technician in training, then as a technical officer, a senior technical officer grade 1, senior technical officer grade 2, and for the last three years as a senior technical officer grade 3. He has been stationed for many years in the Maltland district communications branch. In early 1986 the position of principal technical officer grade 2 in the Kempsey district telecommunications branch became vacant. The vacancy was advertised; nine Telecom officers applied, Mr McNab was one of them. Seven of the applicants were interviewed by a Telecom selection committee under the chairmanship of Mr K L McCallum, district communications manager of the Kempsey branch. The committee concluded that Mr McNab was the most suitable applicant for the vacant position and approved his provisional promotion to the position, Three of the disappointed applicants appealed against the decision of the selection committee. A Promotions Appeal Board, comprising the first three respondents, Mr M R Giidéa, Mr R Bewsell and Mr T Mergis, was appointed to consider the appeals. The Promotions Appeal Board was impressed by Mr McNab but 1t reached the conclusion that one of the other applicants for the position, Mr Colin Williams, who is the fifth respondent to these proceedings, had the edge over Mr McNab. The Board allowed Mr Williams' appeal, with the result that Telecom was required to cancel the provisional promotion of Mr McNab and to promote Mr Williams to the vacant position ~~ see Telecommunications Act 1975, (s.51(6)). By the present proceedings, which are brought under the Administrative Decisions (Judicial Review) Act 1977, Mr McNab seeks judicial review of the Board's decision. The Application filed on his behalf refers to a number of matters but only two have been pressed. One of them may quickly be disposed of. This is a complaint that the members of the Board took into account an irrelevant consideration, namely the fact that prior to making its decision the selection committee had interviewed Mr McNab on two occasions, whereas it had interviewed the other applicants only once. The evidence, both of Mr McNab and of Mr McCallum, is that the selection committee did in fact interview Mr McNab on two occasions. The explanation given by Mr McCallum in evidence in this Court is that at the first interview Mr McNab became confused in answering a question and thereafter he lost confidence and became nervous. The selection committee found it difficult to reconcile Mr McNab's performance during the latter part of his interview both with what had gone before and with his written application and the reports of his referees. Accordingly 1t decided to recall him for a further interview on the day when it would be meeting the other applicants. ' ' It appears that each of the appellants to the Promotions Appeal Board complained to the board that Mr McNab had enjoyed preferential of treatment when the matter was before the selection committee. Subsequently, the Promotions Appeal Board had a telephone discussion with Mr McCallum regarding the work done, and the views formed, by the selection committee. Not unnaturally, Mr McCallum was asked about the two interviews with Mr McNab. He explained the reason. There 18 no evidence to indicate that the matter thereafter commanded any attention. Mr Gildea, the chairman of the Board, said in evidence that, after the telephone discussion with Mr McCallum, the matter did not affect his mind. Mr Mergis, one of the members of the Board, has sworn in an affidavit that, so far as he is aware, in reaching a decision on the appeals, no Board member had regard to anything other than the stated selection criteria. It was not suggested to him in cross-examination that he took into account the fact that the selection committee had seen Mr McNab twice. The remaining member of the Board, Mr Bewsell, has, in his affidavit, confirmed in general terms the affidavit evidence of Mr Mergis. He was not cross-examined. Consequently not only is there no evidence that any of the members of the Board took into account the fact of the two interviews; there 1S positive evidence to the contrary from each of them. This ground is not made out. The other ground is more substantial. Mr McNab complains that the Board denied to him natural justice because 1t failed to contact a person, a Mr John Caddy, whom he described in his evidence as his "principal referee". Mr Caddy's name was the first of four names of referees submitted by Mr McNab in his statement to the Board. Mr Caddy had been the 1mmediate supervisor of Mr McNab for more than ten years until February 1986. Another referee named by Mr McNab was Mr John O'Reilly, who had become Mr McNab's immediate supervisor in February 1986 and who had, therefore, been responsible for his work for only about six months at the tme of the Board's deliberations in August 1986. During that six months, according to Mr McNab's evidence in this Court, Mr O'Reilly had seen him on only about four occasions; although the two men had had regular telephone contact. The evidence shows that the Board did contact Mr O'Reilly. He gave a favourable report on Mr McNab. The Board did not, therefore, consider 1t necessary to contact Mr Caddy. The Board spoke to three of the persons nominated by Mr Williams as referees. The evidence does not indicate the extent to which these contacts were made with Mr Williams specifically in mind. Some referees knew more than one applicant for the position; so when contacted they offered views on more than one applicant. However, the fact 1s that the Board had the benefit of reports on Mr Williams from three sources; whereas 1t had but a single referee's report on Mr McNab, and from a person who had not known him very long. Section 51 of the Telecommunications Act deals with promotion appeals. Sub-section (4) provides that, on an appeal or appeals being made against a provisional promotion: ",... a Promotions Appeal Board shall make a full inguiry unto the claims of the appellant or appellants and the claims of the officer provisionally promoted and determine the appeal or appeals." The significance of the reference to a full inquiry was spelt out by Forster J in a recent decision, Matthews v Oaten, 29 August 1986, not reported. That case was also a challenge to a decision by the Promotions Appeal Board, the challenge being based upon the failure of the Board to contact any of the applicant's referees. At p.9 of his judgment, Forster J said this: "The applicant took the view that referees were important to him and informed the Board so. He was, 1n my view, reasonably entitled to expect that the Board would make proper efforts to speak to his referees. This expectation, coupled with the statutory duty to make full enquiries, required the Board to make something more than its desultory efforts to speak to the referees nominated by the applicant. I may say that if, either after making a proper effort to speak to the referees, or after the sort of effort that was made here, the Board was unable to speak to the referees, it should have informed the applicant so that he might either substitute other referees or help the Board to get in touch with the existing referees." There are factual differences between Matthews' case and the present case. In the present case nothing specific was said by Mr McNab adout the Board contacting his referees. Apparently he assumed that the Board would in fact do so. Nor 1s this a case where no contact was made with any referee. On the contrary, the Board did contact Mr O'Reilly and it obtained a favourable report from him. Nonetheless it is difficult to regard what was done as amounting to a "full inquiry". The Board knew of Mr O'Reilly's limited acgualntance with Mr McNab. The Board knew that Mr Caddy had been his supervisor for more than ten years until a short time previously. As Mr Gildea conceded in his evidence before me: "It would be important to speak to someone who has been the supervisor of a particular applicant for many years rather than someone who has just been a supervisor for a short period." Knowingly to omit to contact the person who has been a supervisor for many years under such circumstances was, in my opinion, to fa1l to make a "full inquiry" into Mr McNab''s claims to the position. Counsel for both Telecom and Mr Williams argue that 1t made no difference that the Board failed to contact Mr Caddy. It 1s said that the Board had already received a favourable report on Mr McNab from Mr O'Reilly. I pass by the question whether a likelihood that the procedural efficiency to which I have referred made no difference in the result can afford an answer to a complaint of denial of natura' justice, except perhaps on discretionary grounds. In the present case it 18 not possible to be satisfied that the failure to contact Mr Caddy made no difference to the result. This was not a case where the Board merely had to satisfv itself that Mr McNab was a competent officer, and where it would then be in a position to confirm his provisional appointment. This was a case of competition for an appointment between a number of officers, at least two of whom were regarded well by the Board. The Board had to make a comparison between Mr McNab and Mr Williams upon the basis of eight stipulated selection criteria: proven ability to manage a large technical district; analytical skills; ability to cope with new technology and work practices; ability to communicate and liaise with other groups and sections; ability to ensure safe working practices and environment; knowledge of Commission targets and objectives; technical experience on eguipment and ability to present verbal and written reports and make recommendations. The Board judged Mr Williams to be superior to Mr McNab in respect of criteria 1, 3 and 7, Mr McNab to be superior in relation to criteria 5 and 8, and the two officers to be of equal capacity concerning the other three criteria. The contest was a close one and it is not difficult to believe that a superior officer who had supervised 'Mr McNab's work for 10 years may have been able to give to the Board specific information which would have had an impact much greater than the necessarily general and limited information available from Mr O'Reilly. Such information might have improved his rating; perhaps putting him equal or even above Mr Williams on criteria in which Mr Williams was found superior or converting an equal finding into a win for Mr McNab. It 1S 1lmportant to ensure that procedures undertaken by Promotion Appeals Boards do not become too formalized. In the interests of employer and employee alike, 1t is desirable that decisions be made expeditiously and with a minimum of expense. But however thorough the interview of an applicant for a position, there is no substitute for information as to his or her actual work performance. It is desirable that Promotions Appeal Boards contact referees wherever possible. If, for any reason, a referee cannot be contacted or if -- because of constraints of time, the number of nominated referees, the inaccessibility of a referee or some other reason -~ the Board is minded not to attempt to contact all referees, the relevant applicant should be informed of this position and given a chance to take appropriate action. All of this can be done quickly and informally. It need not delay decision-making. But, unless 1t 1s done, there is a serious risk that the applicant will be denied the opportunity of having before the Board the whole of the material in support of his or her claim to the position. 10. 1 - In the present case, I am of the view that the applicant was entitled to assume that the information that would be available in support of his claims from Mr Caddy would be resorted to by the Board; at least unless it was otherwise satisfied that he was the superior candidate for the position or he was notified to the contrary. The failure of the Board to contact Mr Caddy meant that that aspect of Mr McNab's case was not put before the Board for its consideration. The failure of the Board to inform Mr McNab that it did not intend to contact Mr Caddy deprived Mr McNab of the opportunity of taking appropriate action to bring the information available from him to the attention of the Board. I think that the present Application should succeed. The decision made by the Promotions Appeal Board, constituted by the first three respondents, in respect of the appeals against the applicant's provisional appointment should be set aside. The appeals should be remitted to the Promotions Appeal Board, differently constituted, for resolution. The fourth respondent, Telecom, should pay the costs of the Application, both of the applicant and of the fifth respondent. I make orders accordingly. ll. I note the undertaking of the fourth respondent, in support of an application for a stay of the order remitting the matter to the Promotions Appeal Board, that in the meantime some other officer will be appointed temporarily to f11l1 the vacancy. JI note the undertaking of the fourth respondent that any appeal herein will be lodged not later than the end of December 1986 and that all steps necessary, including any application for expedition, will be taken to have any appeal heard during the February c.ittings of the Full Court if this can be arranged by the Court. Upon the basis of those undertakings, I stay the operation of the order remitting the matter to the Promotions Appeal Board until the determination of any appeal or any earlier order of the Court or of a judge. I grant liberty to the applicant to apply on two days' notice for an order removing the stay. I certify this and the ten (10) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. a (ge <4 < Date: 19 December 1986 Associate: 12. Counsel for the Applicant: Solicitors for the Applicant: Counsel for the First, Second, Third and Fourth Respondents: Solicitors for the First, Second, Third and Fourth Respondents: Counsel for the Fifth Respondent: Solicitors for the Fifth Respondent: yates of hearing: Mr J Phillips A J Macken & Co Ms G Murrell Australian Government Solicitor Mr J McGrath Steve Masselos & Co 11 and 17 December 1986