CATCHWORDS ADMINISTRATIVE LAW: Judicial review - Australian Capital Territory Fire Brigade - Appointment of officer to act temporarily in higher rank - Whether applicant eligible for promotion to that rank - Whether eligibility includes satisfactory conduct and service - Meaning of seniority where no criterion prescribed - Basis of choice between officers of equal seniority - Law reform necessary. Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Fire Brigade (Administration) Ordinance 1974 (A.C.T.) Fire Brigade (Administration) Regulations ADRIAN PAUL CRUMBLIN v. WILLIAM MOORE GOULD KERR ACT G 70 of 1986 Neaves J. Fa 23 April 1987 Canberra WINE \ we Py Ss ~, om Gf {- "t rn) on ey aati ie at 7 Poth 2 NID uo % —\ ESDERAL © _ ' F OURT Of '™ Vi AUSTRALIA OF IN THE FEDERAL CuliIn@ OF AUSTRALIA AUSTRALIAN CAPITAL TERPRIFOPY No. ACT G 70 of 1986 DIZTRICT REGISTRY ee ee GENERAL DIVISLON BEIWEEN : ADRIAN PAUL CRUMBLIN Applicant AND: WILLIAM MOORE GOULD KERR, Respondent MINUTE OF ORDER JUDCE MAKING ORDER : WNeaves J. DATE OF ORDER : 23 April 1987 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 70 of 1986 DISTRICT REGISTRY ee GENERAL DIVISION BETWEEN : ADRIAN PAUL CRUMBLIN Applicant AND: WILLIAM MCORE GOULD KERR, Respondent CORAM: Neaves J. DATE: 723 April 1987 REASONS F'OR JUDGMENT This application under 5.5 of the Aaministrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") involves an examination of the legislative provisions governing the promotion of officers of the Australian Capital Territory Fire Brigade ("the Brigade") and the appointment of such officers to act temporarily in a higher rank. That examination has demonstrated beyond doubt that the legislative provisions arc in urgent need of complete revision. The application, which 1s brought by Adrian Paul Crumblin ("the applicant"), seeks an order of review in respect of a decision made by William Moore Gould Kerr ("the respondent") on 8 August 1986 to appoint an officer other than the applicant to act temporarily in the higher rank of Superintendent. The applicant 1s, and was at all material 2. times, an officer of the Brigade with the rank of District Officer. The respondent is, and was at all material times, Che Commiss1oner of the Brigade. The Brigage 1s established by the Fire Brigade (Administcation) Ordinance 1974 (A.C.T.) ("the Ordinance") and at the relevant time consisted of the Commissioner and the members, being officers and firemen, of the Brigade appointed by the Commissioner (s.16). Provision is made by the Fire Brigade (Administration) (Amendment) Ordinance 1982 (A.C.T.) for the appointment of a Deputy Fare Commissioner but the Court was informed that that Ordinance did not come into operation until 2 April 1987. Subject to the Ordinance, the Commissioner is, under the direction of the Minister, charged with the general control and management of the Brigade (s.12). He may, from time to time, in writing, issue such general orders and instructions as are necessary to secure the good government and efficient working of the Brigade (s.13). As the Minister has not exercised the power conferred by s.19 to create new ranks in addition to those specified in $s.17 or in substitution for any of the ranks so specified, the ranks of officers of the Brigade are, in descending order, Superintendent, District Officer and Station Officer (s.17). Provision is made by the Ordinance for the appointment of afficers and firemen (s.20) and for their promotion to higher rank (5.29). A person may not be appointed as an officer unless he 1s qualified in accordance with the regulations. (5.23). An officer may not be promoted to a rank unless he is eligible in accordance with the regulations for promotion to that rank (sub-s.29(2)). A promotion is provisional and subject to appeal on the ground of equal efficiency and seniority (ss.32 and 33). Seniority is not defined. I need not stay to consider, for the purposes of the application hefore me, whether the reference to equal efficiency and seniority in s.33(1) has the effect that the appeal may be decided on criteria different from those upon which the promotion was made, particularly in a case where the provisions of reg.17 of the regulations (as to the text of which see later) are applicable. Section 30 provides: "30. The Commissioner may, from time to time, in accordance with the regulations, appoint an officer to act temporarily in a higher rank." While provision is made by s.29 for the promotion of a fireman toa rank of officer, there is no provision for appointing a fireman to act temporarily as an officer. The consequence would appear to be that in no circumstances can a a vacancy in an office of Station Officer be filled ona temporary basis. Section 81 authorises the Minister to make regulations, not inconsistent with the Ordinance, prescribing all matters which by the Ordinance are required or permitted to be prescribed or which are necessary or convenient * to be prescribed for carrying out or giving effect to the Ordinance and, in particular, prescribing matters for and in relation to - (a) the appointment and promotion of members; (b) the holding of examinations un connexion with the appointment and promotion of members; (c) the temporary appointment of an officer to a higher rank. The Fire Brigade (Administration) Regulations ("the regulations") provide, in reg.19, that the Commissioner is not to appoint an officer to act temporarily in a higher rank unless the officer is - (a) eligible for promotion to that rank; and (b) the only officer, or the more or most senior of the officers, so eligible. Regulations 8 to 14 inclusive make provision with respect to elagibility for promotion of members of the Bragade to higher rank. Regulations 8, 9, 10, 11 and 12 deal with eligibility for promotion to the prescribed ranks of firemen. In the case of promotion to each of the prescribed 'ranks other than that of First Class Fireman, Grade A, the criteria of eligibility are the holding for a prescribed period of the next lower rank and the passing of a prescribed examination. In the case of promotion to the rank of First Class Fireman, Grade A, the only criterion is the holding of the next lower rank for a prescribed period. Regulations 13 and 14 respectively make provision with 5. respect to the eligibility for promotion to the ranks of Station Officer and District Officer. Those regulations provide: "13. A person is eligible for promotion to the rank of Station Officer if the person has - fa) held the rank of Senior Fireman for a continuous period of not less than 4 years; and (b) passed an examination conducted by the Commissioner for the purposes of this regulation. 14. A person is eligible for promotion to the rank of District Officer if the person has passed an examination conducted by the Commissioner for the purposes of this regulation." The regulations do not prescribe any criterion of eligibility for promotion to the rank of Superintendent. Regulation 16 provides that, notwithstanding the provisions of regs 8 to 14 (inclusive), the Commissioner is not to promote a member toa higher rank unless the conduct and service of the member are satisfactory. Regulation 17 deais with the situation where more than one person is eligible for promotion to a _ rank. It provides: "17. Where more than one person 15 eligible For promotion to a rank, the Commissioner shall - (a) where each eligible person passed the examination conducted in relation to " promotion to that rank at the same time - promote to that rank the more or most senior of those persons; or (b) an any other case - promote to that rank the person who first passed the examination conducted in relation to promotion to that rank." Again, the regulations provide no criterion for determining the seniority of an eligible person. The decision the subject of the present application is evidenced by a document of appointment signed by the respondent on 8 August 1986. The document reads: "Pursuant to Section 30 of the Fire Brigade (Administration) Ordinance 1974, I, WILLIAM MOORE GOULD KERR, the Fire Commissioner for the purposes of the said Ordinances [sic], HEREBY APPOINT 39 NOEL WARREN BISSETT DISTRICT OFFICER to act temporarily in the higher rank of Superintendent within the Australian Capital Territory Firc Brigade from 1651 hours 8 August 1986 until 0800 hours 25 August 1986." On the same day the respondent signed a personnel memorandum reading as follows: "Due to my absence on annual leave, Superintendent E. Stokes has been appointed by the Minister for Territories to act as Fire Commissioner from 16.51 hours Friday 8 August 1986 until 0800 hours 22 August 1986. During this period, District Officer N. Bissett will act as Superintendent and will also continue to oversight the training function." It is common ground that the applicant and District Officer Bassett joined the Brigade, on transfer from the New South Wales Fire Brigade, on 16 January 1976. The applicant 7. had joined the New South Wales Fire Brigade on 7 July 1961 while District Officer Bissett had joined on 28 June 1963. The respective dates of the examinations for the purposes of reg.14 which the applicant and District Officer Bissett passed so as to become eligible for promotion to the rank of District Officer were 6 and 7 December 1977 and 6 and 7 June 1978. The applicant and Dastrict Officer Bissett were promoted to that rank on the same date, namely 6 July 1978. There is in evidence a document entitled "Seniority List - As at 1.5.86". There is, however, no evidence as to the basis upon which it was prepared. Under each of the sub-headings, "Superintendent", "Acting Superintendent", "District Officer", "Acting District Officer" and "Station Officer", the document sets out the names of officers, the names being apparently arranged in descending order of seniority. It also lists the names of firemen under various sub-headings, including the sub-heading "Station Officer - Qualified". Under the sub-heading "District Officer", the name of the applicant is shown above that of District Officer Bissett. ' The applicant sought and obtained, under s.13 of the Judicial Review Act, a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. The statement recorded that the decision was based on the seniority list to which I have referred, the officers 8. considered eligible for promotion to the rank of Superintendent in order of seniority, reg.19 of the regulations, the conduct and service of members in accordance with reg.16 of the reguiations and certain documents relating to the applicant. The statement contained the following paragraphs: "For the reasons I nave outlined below, I considered the most senior District Officer (Mr Crumblin) to be ineligible at the time. [I then selected the most senior of the eligible officers, Mr Bissett, to act as Superintendent. The basis on which I considered him to be ineligible was that I was not satisfied that his conduct and service were satisfactory. In particular I had serious doubts regarding the example being set for other Brigade members by District Officer P. Crumblin's attitude, his apparent unwillingness to co-operate in re-establishing the Brigade, and his ability to accept managerial responsibilitity/obligations imposed by his rank. District Officer Bissett has demonstrated a willingness and ability to accept managerial responsibility and obligations in his' current duties and in the absence of any evidence to the contrary I would consider him both eligible and the most senior available officer for the duration of the vacancy. Accordingly I appointed him as Superintendent for the duration of the vacancy." " The applicant contends that the appointment of District Officer Bissett temporarily to the rank of Superintendent was contrary to law and should be set aside on the ground that he, the applicant, was on 8 August 1986, within the terms of reg.19 of the regulations, eligible for promotion to the rank of Superintendent and senior to District Officer Bissett. In particular, the applicant contends that the respondent was not entitled, in making his decision, to take into account that the conduct and service of the applicant were not satisfactory. The first question to be addressed is whether on 8 August 1986 the applicant and Dastrict Officer Bissett were eligible for promotion to the rank of Superintendent. Counsel for the applicant submitted that they both satisfied that requirement by reason of the fact that at that date they held the rank of District Officer. Counsel acknowledged that the regulations do not, in terms, prescribe any test of eligibility for promotion to the rank of Superintendent but submitted that a consideration of the general scheme of the Ordinance and the regulations dictates that the holding of the rank of District Officer is a condition precedent to promotion to the next higher rank. Counsel for the respondent was content, having regard to the approach which the respondent had taken in making the temporary appointment, to argue the matter on the basis that eligibility for promotion to the rank of Superintendent depends upon the holding of the rank of District Officer though he recognised that the regulations did not, on their face, require that those holding the rank of Station Officer were ineligible for consideration. He submitted, however, that eligibility for promotion depends also upon the conduct and service of the officer being satisfactory, referring in this regard to reg.16 of the regulations. This proposition was disputed by counsel for the applicant on the basis that the phrase "eligible for promotion" in reg.19 means "legally qualified for promotion" and not "suitable for promotion". 10. He referred to Faramus v. Film Artistes' Association £1963] 2 90.B. 527; £19642 A.C. 925, a case concerning a rule of a registered trade union which provided that no person who had been convicted ina court of law of a criminal offence was 'gligiblic" for membership thereof. Lord Evershed, (19641 A.C. at p.940, dealing with the meaning of the word "eligible", said this: "It is no doubt true .... that the word 'eligible' according to the dictionary may, in certain contexts, mean 'sultable for election' as distinct from 'qualified for election'. As I have said, however, in the context of the phrase in the present rule I cannot for my part entertain any doubt but that, as a matter of English, the word 'eligible' must mean and can only mean 'legally qualified''." By way of contrast, reference may be made to what was said by Mahon J. delivering the judgment of the Court of Appeal of New 4ealand in Thames Jockey Club v. New Zealand Racing Authority £19751 2 N.2.L.R. 768. The question there arose as to the meaning of the word "eligibility" in the definition of the expression "statutory power of decision" in s.3 of the Judicature Amendment Act 1972 (N.Z.). That ta expression was defined to mean a power or right conferred by or under an Act to make a decision deciding or prescribing ' (inter alia) the "eligibility" of any person to receive, or to continue to receive, a benefit or licence, whether he was legally entitled to it or not. Mahon J. at p.768 said: "It was held by Perry J. that the expression 'eligibility' as it appears in Clause (b) of the defirmtion of 'statutory power of decision' should be construed as if it meant 'legally qualified' but in our respectful opinion the correct construction us the aiternative meaning of suitability or fitness, iuncluding any question of legal qualification." The meaning of the word "eligible", as that of any other word, may vary with 1ts context. There is no doubt that the phrase "eligible for promotion" in reg.19, a phrase which, in its context, has reference only to an officer of the Brigade, is apt to refer to those reguiations, namely regs 13 and 14, which, in terms, prescribe conditions of eligubility for promotion to a particular rank. There is, moreover, much to be said for confining the phrase to the criteria of eligibility there set out though the absence of any regulation prescribing conditions of eligibility for promotion to the rank of Superintendent might be thought to militate against the correctness of this view. The question which arises in this case is whether the phrase "eligible for promotion" in reg.19 is apt to include within its purview the provisions of reg.16 which, in the case of the promotion of firemen as well as officers, precludes promotion unless the conduct and service of the promotee are satisfactory. If it were not for the introductory words of reg.16 which provide that the regulation is to apply notwithstanding the provisions of regs 8 to 14 (inclusive) - those being the regulations which, in terms, prescribe criteria of eligibility - I would have been inclined to hold that the satisfactory conduct and service of amember 18S not properly to be described asa matter going to the eligibility for promotion as that phrase is used in reg.19. However, the presence in reg.16 of the 12. introductory words has led me to the opposite conclusion. Those words, in my opinion, require that the criteria for eligibility prescribed in each of the regulations 8 to 14 (inclusive) be read subject to the further requirement of satisfactory conduct and service. Unless those introductory words have that effect, their presence in reg.16 would seem to me to be otiose. Iam also of opinion that, being expressed in general terms, reg.16 provides a criterion of eligibility for promotion to the rank of Superintendent notwithstanding that no other regulation deals with that topic. I am, therefore, of opinion that the respondent, when considering whether the applicant was eligible to be appointed to act temporarily in the rank of Superintendent, was entitled, indeed obliged, by the provisions of reg.19, to take into account whether his conduct and service were satisfactory. Notwithstanding the conclusion expressed above, I should, I think, give further consideration to the matter on the assumption that reg.16 is to be read as not prescribing a criterion of eligibility for promotion within the meaning of reg.19. On that assumption, both the applicant and District Officer Bissett were eligible for appointment to act temporarily in the rank of Superintendent. Regulation 19(b) then required that, if an appointment were to be made, the mare senior of those officers be appointed. 13. I have already adverted to the circumstance that the Ordinance and the regulations provide no guidance in determining the seniority of an officer. Nor do they provide any basis upon which a choice 1s to be made between two officers who are equal in seniority. In my opinion, the question whether one officer is more senior than another for the purposes of reg.19 is to be determined by reference not to the length of service of each officer in the rank which he then holds but to his length of service in the Brigade. I can see no justification, in the absence of a legislative provision to that effect, for determining an officer's seniority by reference to the date upon which he passed the examination prescribed for the rank which he holds or, where such examination is prescribed, for the rank to which he 1s to be appointed temporarily. That the date of passing an examination is not the test of seniority is made apparent upon a consideration of reg.17 which provides that, where two persons passed a prescribed examination at the same time, the more or most' senior officer is to be preferred for promotion. It should, of course, be noted that reg.17 has no application to the present case - it applies only in the case of promotion and, in any event, there is no prescribed examination for promotion to the rank of Superintendent. It is clear on the evidence that the applicant and District Officer Bissett were equal in seniority. Both became members of the Brigade on 16 January 1976 and if, 14. contrary to the view I have expressed, seniority in this context means seniority ina particular rank, both officers were promoted to the rank of District Officer on 6 July 1978. The applicant, therefore, cannot make good his assertion that on 8 August 1986 he was senior to District Officer Bissett. The question may then be asked, how is_ the respondent, faced with such a situation, to determine which officer is to be appointed to act temporarily in the higher rank. In my opinion, the regulations are not to be read as requiring that, in such circumstances, the respondent is precluded from making a temporary appointment. Rather, an examination of the scope and purpose of the legislation leads me to the conclusion that, 1n such circumstances, the respondent is entitled, as the person charged, subject to any direction of the Minister, with the general control and Management of the Brigade (see s.12 of the Ordinance), to make such appointment as in his judgment is proper. For the reasons set out above, the application is ba dismissed. The applicant must pay the respondent's costs. I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 23 April 1987 Counsel for the applicant Solicitors for the applicant Counsel for the respondent Solicitor for the respondent Date of hearing 15. oe Me F.J. Purnell Pamela Coward & Associates Mr C.P. Comans Australian Government Solicitor 7 April 1987