ie] mae & -. JUDGMENT No. ABO Z smmmmman CATCHWORDS, ADMINISTREATIVE LAW - Judicial Review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Decision arrived at by majority - Members of Board, including dissenting member, named individually as separate respondents - Whether proceeding improperly constituted as to parties - Whether Board should have been joined as a respondent by that name - Discussion of appropriate course to be adopted in similar cases. ADMINISTRATIVE LAW - Judicial review - Commonwealth Teaching Service - Provisional promotion of applicant - Multiple appeals - Promotions Appeal Board determining three appellants to he preferred to applicant for promotion - Formal documents recording that determination signed - Further deliberations by the Board to determine which of the three appellants should be promoted - Whether Board functus officio. ADMINISTRATIVE LAW - Judicial review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Whether there had been a failure by the Board to fulfil its statutory duty to make full inguiry into the claims of the applicant and an appellant - Whether Board failed to take into account relevant considerations - Whether unreasonable exercise of power. ADMINISTRATIVE LAW - Judicial review - Commonwealth Teaching Service - Application for order of review in respect of decision of Promotions Appeal Board - Bias - Expression of opinion on question of policy by Chairman of Board at private function - Comment by Chairman during Board's deliberations in relation to conduct of the applicant - Allegation that Chairman had prejudged applicant's case - Whether reasonable apprehension that Chairman might not bring an impartial and wunprejudiced mind to the decision-making process - Failure of applicant to take objection as soon as reasonably practicable. Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Commonwealth Teaching Service Act 1972 (Cth), ss.28, 29, 30 Commonwealth Teaching Service Regulations, regs 9, 10 CHERYL ROSE O'CONNOR v. CLIFFORD BURNETT & ORS No. ACT G 48 of 1986 Neaves J. 31 August 1987 Canberra AUSTRALIA PRINCIPAL REGISTRY perro a pee ses " Ve ial ar tebe eeineneraea 3 er eter tere en ee Deke voter i) IN_THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION BETWEEN ry ) ) ) ) No. ACT G 48 of 1986 ) ) ) CHERYL ROSE 0' CONNOR Applicant CLIFFORD BURNETT First Respondent IAN LAWRENCE PRICE Second Respondent AUDREY ANN DUKE Third Respondent GREGORY ARTHUR HANCOCK Fourth Respondent JOHN ALLAN COPE Fifth Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 31 August 1987 WHERE MADE : Canberra THE COURT ORDERS THAT: mes Fisted 1. The application be dismissed. 2. The applicant pay the costs of the first, second, fourth and fifth respondents. 3. There be no order as to the costs of the third respondent. 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 DISTRICT REGISTRY GENERAL DIVISION BETWEEN : CORAM: Neaves J. DATE: 31 August 1987 No. ACT G 48 of 1986 wwe ew ew CHERYL ROSE 0' CONNOR Applicant CLIFFORD BURNETT First Respondent IAN LAWRENCE PRICE Second Respondent AUDREY ANN DUKE Third Respondent GREGORY ARTHUR HANCOCK Fourth Respondent JOHN ALLAN COPE Fifth Respondent REASONS FOR JUDGMENT . es vr ree sy wo Ao < ce The applicant, Cheryl Rose O'Connor, seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in relation to - (a) the decision of a Promotions Appeal Board constituted under the Commonwealth Teaching Service Act 1972 (Cth) ("the Teaching Service Act") allowing an appeal by John Allan Cope, the fifth H ~ respondent, against the provisional promotion of the applicant to the position of Principal, Band 4 Secondary {No.1686), North Canberra College (now officially named. Lake Ginninderra College); and (b) the consequential decision of Gregory Arthur Hancock, the fourth respondent, cancelling the provisional promotion of the applicant and promoting the fifth respondent to that position. Clifford Burnett, Ian Lawrence Price and Audrey Ann Duke, named in the proceedings as the first, second and third respondents respectively, constituted the Promotions Appeal Board. The fourth respondent, Gregory Arthur Hancock is, and was at the relevant time, the Chief Education Officer of the Australian Capital Territory Schools Authority. The Relevant Legislative Provisions The subject position is one within the Commonwealth Teaching Service. Section 19 of the Teaching Service Act, a section which in its relevant form was enacted by the Commonwealth Functions (Statutes Review) Act 1981 (Cth) (see Part VIII), provides that the Commonwealth Teaching Service ("the Service") established and in force immediately before the commencement of that section is continued in existence for all purposes. The date of commencement of the section was 10 August 1981 (see Commonwealth of Australia Gazette 1981, No. $161). The Service is divided into four components (s.19(3)). For present purposes it is. only necessary to refer to one of those components, namely the Australian Capital Territory Schools component. That a 1-5 en a eee + SohtePannanIt rohan tabs suneammnenineameiramns aeateieeeien At =, 4 ko 7. eres ara 3. component consists of officers holding positions in the Service established in that component and temporary employees engaged for the purpose of performing services in relation to that component (s.19(4)). For the purposes of the Act, the relevant authority in relation to that component is the person for the time being holding, or performing the duties of, the office of Chief Education Officer of the Australian Capital Territory Schools Authority (s.19(5)). The Australian Capital Territory Schools Authority ("the Authority") is established by the Schools Authority Ordinance 1976 (A.C.T.). Its functions are to establish and conduct in the Territory, on behalf of the Commonwealth, pre-schools, primary schools, high schools, secondary colleges, such other educational services as the Minister approves and such educational or related services as the Minister directs (s.6(1)). Section 19 of the Ordinance provides that there is to be a Chief Education Officer who is to be appointed by the Governor-General. Subject to the general direction of the Authority, the Chief Education Officer's function is to manage the Authority's affairs {s.21). The object of the Teaching Service Act, as expressed in s.6, is to provide for the employment of persons who are to be made available for the performance of teaching duties in Commonwealth schools and certain other schools. A "Commonwealth school" means a school conducted r ae ree premarin Pee ree MeN mene wanes, 4. by the Commonwealth or by the Administration of a Territory of the Commonwealth or by a prescribed authority (s.4(1)). Provision is made for the creation of positions in a component of the Service (sS.25). Section 20 authorises the relevant authority in relation to a component of the Service, on behalf of the Commonwealth, to appoint officers in that component. Officers appointed are to perform duties as directed by that relevant authority (s.20(7)). The relevant authority may transfer or promote an officer to fill a vacant position in the Service (s.27(1)). Sections 28 and 29 of the Teaching Service Act, so far as material for present purposes, provide: "28. (1) In the selection of an officer for promotion to a vacant position, consideration shall be given first to the relative efficiency of the officers available for promotion and, in the event of equality of efficiency of two or more officers, then to the relative seniority of those officers. (2) For the purposes of this section - (a) 'efficiency' means special qualifications and aptitude for the discharge of duties of the kinds required to be performed by the officer filling the position concerned, together with merit, diligence and good conduct, and, in the case of an officer who has at any time been engaged on war service, includes such efficiency as, in the opinion of the relevant authority, the officer would have attained but for his absence on war service; (b) 'war service' includes 'Defence service' as defined by sub-section (1) of section 6 of the Defence (Re-establishment) Act 1965-1968; and te eee ae athe sieeetiens Bienienleneaah sel Snererenl avs we a COs % S SENET IT ST ree "5 yy te ro nail eS oe arary Sere ep cn pentpennes ctor Lot ve oie pore air screndiiies demneuetaramntremeamecenenes oie a 5. (c) the seniority of officers shall be determined as prescribed. 29. (1) The promotion of an officer toa vacant position - (a) is provisional and without increased salary pending confirmation of the promotion; (b) shall be made known to the officers as prescribed; and (c) is subject to appeal as provided by this section. (2) An officer who considers that he should have been promoted to a vacant position in preference to the officer provisionally promoted may appeal, as prescribed, against the provisional promotion on the ground of superior efficiency or of equal efficiency and seniority. (3) Upon an appeal or appeals being made against a provisional promotion, a Promotions Appeal Board specified by the relevant authority shall make full inquiry into the claims of the appellant or appellants and the claims of the officer provisionally promoted and determine the appeal or appeals. (4) Where an appeal is allowed, the relevant authority shall cancel the provisional promotion and promote the appellant to the vacant position. (5) Where, in respect of a provisional promotion, no appeal is duly made or an appeal has, or appeals have, been duly made but the appeal, or each of the appeals, has been disallowed or has become inoperative, the relevant authority shall confirm the provisional promotion. fy) cane Section 30 provides for the constitution by the relevant authority, from time to time, of such Promotions Appeal Boards as are required. A Promotions Appeal Board is to consist of a Chairman appointed by the Minister, an officer appointed by the relevant authority and an officer nominated, as provided by the regulations, to represent the nen a rer re : Ta ° . - - ee syne 6. officers of the Service (s.30(2)). Regulation 9 of the Commonwealth Teaching Service Regulations provides for the nomination of such an officer by an organization within the meaning of the Conciliation and Arbitration Act 1904 (Cth) in That regulation provides: "10. (1) Subject to sub-regulation (2), where an organization has rules under which an officer who occupies the office to which the provisional promotion appealed against has been made is eligible for Tembership of that organization, the relevant authority shall, in writing, request that organization to nominate, in writing, an officer to represent officers of the Service and to specify the address of the officer so nominated. (2) Where more than one organization has rules under which an officer who occupies the office to which the provisional promotion appealed against has been made is eligible for membership, the relevant authority shall ascertain which of those organizations has the greater or the greatest number of members occupying offices of the class to which the provisional promotion appealed against has been made and shall, in writing, request that organization to nominate, in writing, an officer to represent officers of the Service and to specify the address of the officer so nominated." response to a request made in accordance with reg.10. Where, at a meeting of a Promotions Appeal Board, the members are divided in opinion on a question, that question is to be decided according to the decision of the majority (s.30(9)). The Basic Facts The duty statement of the position of Principal, Band 4 Secondary (No.1686), North Canberra College reads: amy ne Vn be Poe ee ee ee peer ~ t "1, The selection UX Manage the College in accordance with the policies of the Schools Authority and the College Board. Advise the College Board and act as its executive member. Provide educational and administrative leadership and supervision in all aspects of the life of the College. Participate in the selection of staff and be responsible for their development, deployment and performance. Foster parent and community involvement in educational programs. Undertake liaison with other schools/colleges and relevant agencies in promoting the overall educational welfare of students. Undertake system-level duties as required." criteria relevant to the position are: Ability to provide high level professional and administrative leadership based upon an understanding of system and school educational philosophy and aims. Ability to develop and manage a college with particular capacity in entrepreneurial and creative skills. Ability to develop and implement new approaches to the preparation and delivery of year 11 and 12 courses, including non-traditional school organisation and course structures. Willingness and ability to supervise in a manner consistent with equal employment opportunity and other policies of the ACT Schools Authority. Understanding of the needs of the client community and capacity to promote the educational welfare of students. " a rn ent ene re me er ee a 8. x Commitment and ability to foster school/community interaction and in particular to develop close relationships with the Australian Institute of Sport, Bruce TAFE College and the community of the Belconnen Town Centre. * Awareness of current curriculum developments and commitment to the program of secondary educational renewal. * Appreciation of the role of school boards and of responsibilities towards the Authority, Board, staff and other members of the school/educational community and ability to undertake system level duties." The applicant was provisionally promoted to the position from her then position of Principal, Band 3 Primary, Macquarie Primary School. A Commonwealth Teaching Service Advisory Selection Panel had selected her for promotion from eight candidates. Following the notification of her provisional promotion, appeais were lodged by nine officers of the Service including John Allan Cope, Margaret Jean McGlynn and Russeli Richard Ferrett. Mr Cope's appeal was on the ground of seniority and equal efficiency. The appeals by Ms McGlynn and Mr Ferrett were on the ground of superior efficiency. In the latter half of November 1985, a Promotions Appeal Board was constituted to hear and determine those appeals. As has already been mentioned, that Board was constituted by Mr Burnett, Mr Price and Ms Duke. Mr Burnett was the Chairman of the Board, Mr Price was appointed as a member by the Chief Education Officer of the oo Senet po re * 9, Schools Authority and Ms Duke was the nominee of the A.C.T. Teachers' Federation. The applicant was informed on or about 15 November 1985 by the Authority that the appeals had been lodged against her provisional promotion. She was informed that she was required to submit, for the consideration of the Promotions Appeal Board, a statement setting out fully her claims in relation to the position. She was also informed that she should nominate one or two referees. She responded by submitting a detailed statement in support of her provisional promotion, addressing each of the various selection criteria to which reference has already been made. She also submitted the names of eight persons as referees. The Promotions Appeal Board had before 1t much documentary material relating to the applicant and to each of the appellants against her promotion. In relation to the applicant, the Board had, in addition to her detailed statement in support of her promotion, the material which she had submitted to the Authority when applying for the position and the report of the Advisory Selection Panel selecting her for promotion. The Board also had the attachments to that report which included comments by the panel on the applicant and summaries of comments upon her made by a number of persons whom the panel consulted. It should be noted, in passing, that in the copy which is in evidence of the summaries attached to the Advisory Selection Panel's report, being a copy of the documents furnished to ae aon eo see ween corre y= ree oe * 10. the applicant under the Freedom of Information Act 1982 (Cth), the names of the persons interviewed have been masked out. The evidence is, surprising as 1t may seem, that the summaries that were before the Promotions Appeal Board also had the names masked out. However, the identity of most of the persons interviewed can be deduced from other material in evidence. In relation to Mr Cope, the Board had before 1t his statement in support of his appeal and other material relating to his case, material which, however, has not been clearly identified and is not in evidence. The three members constituting the Promotions Appeal Board first met together on 3 February 1986. The afternoon of that day and a large part of the following day were spent in reading the documentary material. A set of questions to be addressed to the provisional promotee and the appellants anda set of questions to be addressed to referees were prepared. On 5 February 1986 the members of the Board interviewed the applicant. Thereafter, the appellants were interviewed and enquiries made of referees and other persons whom the Board considered could give information relevant to its deliberations. In all, the hearing and determination of the appeals extended over a period of some eight weeks. As ayresult of its deliberations the Board, by majority, determined that Mr Cope and two of the other appellants, namely Ms McGlynn and Mr Ferrett, were to be preferred to the applicant for the position and, in effect, ll. that their respective appeals against the applicant should be allowed. Three documents were prepared to give effect to that determination, one in respect of each appeal. The documents are not in evidence, they having, apparently, been destroyed. I am by no means satisfied that each of the documents would have stated, in terms, that the appeal of the appellant to which the document related had been allowed. It seems to me more probable that each document, after setting out the salient matters upon which the Majority of the Board relied to support the conclusion that the appellant was to be preferred to the applicant, would have concluded with a statement to the effect that the Board had found that the appellant was able to prove superior efficiency to the provisional promotee. Following the submission of those documents to the Authority, a discussion took place between Mr Burnett and senior officers of the Authority concerning the procedure to be followed by the Board in selecting from the three successful appellants the one whom the Board considered should be preferred for promotion to the position upon the cancellation of the applicant's provisional promotion. In the event, the members of the Board again interviewed the three appellants and determined that Mr Cope should be promoted to the position. The three members of the Board then signed a document dated 25 March 1986 in the following terms: "The Board made a full and fair enquiry, by reading the documents, interviewing the parties and contacting referees and other persons. --sre— aa wre ee ree en oe amare me monn rn ee gee ae The 12. The provisional promotee, Ms C. O'Connor, was able to demonstrate strengths in the following areas: Her system-wide perspective, gained through her involvement in Federation and on Authority committees; Her skills in public relations and communication; Her successful Band 3 Principalship of Macquarie Primary School for three years; Her understanding of what is required of a Principal in planning and managing a new Secondary College; Her high degree of commitment to the Authority's E.B.0. Cequal employment opportunity policy. The successful appellant, Mr Cope, was able to demonstrate considerable strengths in the following areas: His greater breadth of professional and administrative leadership in school, system and overseas positions; His greater understanding of the tasks and problems involved in planning, developing and managing a new Secondary College; His evidence of successful educational initiatives and innovations over many years. The Board was also impressed by referees' praise for Mr Cope's highly developed inter-personal and negotiating skills. The Board found that Mr Cope was able to prove superior efficiency to the provisional promotee, Ms C. O'Connor." three members of the Board also signed two other documents respectively recording their findings that Mr Cope was able to prove superior efficiency to Ms McGlynn a Ferrett. nd Mr ee et Tae 4 7 net ere aoe Ra eee ee en + 13. It may be noted that, although Ms Duke signed the document recording the finding that Mr Cope had demonstrated superior efficiency to that of the applicant, she added to her signature the words "See minority report". No reference was made to that report in the affidavit sworn in the proceeding by Ms Duke. The applicant, however, annexed to her affidavit sworn on 5 August 1986 a copy of a document which she said had been made available to her by an officer of the Authority pursuant to the provisions of the Freedom of Information Act 1982 (Cth) as being Ms Duke's minority report. In her oral evidence Ms Duke verified that the document was, indeed, her minority report. Objection was taken to the admission of the document in evidence and it was admitted subject to that objection. Having further considered the matter, I am of opinion that the document is inadmissible on the ground that its relevance to any issue before the Court has not been demonstrated. Following the conclusion of the Board's deliberations, the fourth respondent, Mr Hancock, took the necessary steps to cancel the applicant's provisional promotion and to promote Mr Cope to the position. Notification of the cancellation and promotion appeared in the issue of the Commonwealth of Australia Gazette dated 17 April 1986. On or about 3 July 1986, in response to an earlier request, the applicant was furnished with a statement of tel we Ve Ss . 14. reasons pursuant to s.13 of the Judicial Review Act in respect of the decision to uphold Mr Cope's appeal against her provisional promotion. After referring to the duties of the position as set out in the duty statement the text of which 1s set out above, the statement of reasons proceeds: "The Promotions Appeal Board made a full and fair enquiry by reading the documents provided, interviewing the parties and contacting referees and other persons. The Board evaluated the efficiency of the two officers to perform the relevant duties on the basis of the selection criteria, bearing in mind the elements of efficiency as defined in the Act. Whilst neither of the parties was able to give evidence of direct work in secondary colleges, the Board took into consideration the performance of tasks which had a close equivalence to those listed in the criteria, and which formed part of the claims of the parties. The Board judged that the appellant, Mr John Cope, had superior efficiency for this position to the provisional promotee, Ms C. O'Connor. The reasons for this decision are set out below. Selection Criteria 1. Ability to provide high level professional and administrative leadership based upon an understanding of system and school educational philosophy and aims The Board by a majority decision found that Mr Cope was more efficient on this criterion than Ms 0'Connor. The evidence gathered by the Board indicated Ms O'Connor has gained a good 'understanding of system and school philosophy and aims' through her involvement as a member of many policy-making committees. However, this evidence did not sustain her statement that she has 'a level of understanding which could be matched by few within the service'. The Board received evidence of Ms O'Connor's leadership skills as shown by her work as Assistance Principal at Weetangera Primary School and later as Principal of Macquarie Primary 15. School, as a leader in the ACT Teachers' Federation and in many committees. Some examples of her impact in schools are the German Language Program and introduction of cyclic timetable and specialist teaching at Weetangera, and the Japanese Program at Macquarie. Her qualities of leadership were also described by referees. However, this evidence did not match that of Mr Cope, who was able to provide examples of high level leadership in a number of systems over many years. These include the development of the secondary curriculum at Christmas Island, Secondary Teachers' Training Program in Tonga, the establishment of ELM (Education for Lay Ministries) for the Uniting Church, and contributions to policy formation 1n the early years of the Commonwealth Teaching Service. A feature of Mr Cope's leadershio is his ability to initiate projects and programs which have had lasting success, such as the timetable innovations introduced at Canberra High School in 1974. Referees' estimations of his leadership qualities were consistent with examples of his performance. 2. Ability to develop and manage a college with particular capacity in entrepreneurial and creative skills The Board sought clarification on the interpretation of the words 'entrepreneurial' and 'creative' from the appropriate senior officer of the ACT Schools Authority. Other phrases were also clarified at the same time and these will be referred to under the relevant criteria. According to the interpretation 'entrepreneurial and creative skills' would be possessed by an adaptive administrator who had the capacity to develop relationships with the institutions and organisations in the vicinity of the College. (eg Australian Institute of Sport, Bruce TAFE College and Belconnen Town Centre.) It would be important that this person develop 'the right balance' between the College and these institutions. The principal of the new college would be expected to take note of developments in education within the last five or six years, and 'build on the past without being bound by the past'. The curriculum could be 'traditional or progressive'. According to the officer's interpretation, being traditional could be regarded as being creative. " rat qe a 16. The Board by a majority decision found that Mr Cope was more efficient on this criterion than Ms 0'Connor. The evidence gathered by the Board showed that Ms O'Connor had good skills in public relations and communication. She was aware of the need to develop close relationships with the institutions mentioned above. She had shown good managerial ability as assistant principal, and later as Band 3 Principal of Macquarie Primary School. Ms O'Connor had also made important contributions on committees at various levels. This evidence did not match the breadth of Mr Cope's contributions at a managerial level. These have already been alluded to above. The Board was impressed by the consistent evidence of Mr Cope's systematic and structured approach to the solution of organisational problems and tasks. Both in his written case and interview he showed a greater understanding of the complexities of developing a new secondary college. Although they possess different operational styles, Ms O'Connor and Mr Cope have considerable strengths in their inter-personal negotiating skills. The Board was not able to find that one was markedly superior to the other in these skills. 3. Ability to develop and implement new approaches to the preparation and delivery of Year 11 and 12 courses, including non-traditional school organisation and course structures The Board by a unanimous decision found that Mr Cope was more efficient on this criterion than Ms 0''Connor. The senior Authority officer made the points in his interpretations of 'implement new approaches' and 'non-traditional' that the world had moved on in the previous 5 or 6 years since the last secondary college was opened, and the school organisation should not necessarily be a replica of the past. However, the principal would need to take cognizance of the potential attraction of other colleges in the area, in particular, Radford, and the established academic reputation of Hawker. Ms O'Connor showed that she had developed and implemented new approaches to curriculum in Weetangera and Macquarie Primary Schools. She also outlined a number of course and a eae eo ea 17. organizational changes that would be different from other secondary colleges. The Board received evidence of Mr Cope having developed and implemented new approaches and structures to school organization over a number of years. He also outlined some ideas on new approaches which he saw as appropriate to the North Canberra College. However, he displayed a greater understanding of the dominant role of the Accrediting Agency in limiting the scope for curriculum change. He was also aware of the problems of presenting an organizational structure in the context of the Belconnen region, and its consequent effects on attracting students to the college. 4. Willingness and ability to supervise in a Manner consistent with equal employment opportunity and other policies of the ACT Schools Authority By a majority decision, the Board held that Ms O'Connor was more efficient than Mr Cope on this criterion. Mr Cope displayed a good understanding of the EEO Policy, and evidence indicated that his practices have been consistent with the spirit of the legislation over many years. His work in promoting the needs of people of different ethnic backgrounds has been outstanding. However, Ms O''Connor has been to the forefront in the development and implementation of the system's EEO Policy, especially in its relation to the status of women in the teaching service. 5. Understanding of the needs of the client community and capacity to promote the educational welfare of students By a unanimous decision, the Board found that Ms 0'Connor and Mr Cope were equal on this criterion. Neither Ms 0O'Connor [Enilor Mr Cope have had teaching experience in secondary colleges. However, both could present evidence of very good rapport with students whom they had taught. Ms 0'Connor had experience in working with disadvantaged youth. Mr Cope showed a sensitive and perceptive understanding of the needs of secondary college age students. oo prea een eee 18. 6. Commitment and ability to foster school/community interaction and in particular to develop close relationships with the Australian institute of Sport, Bruce TAFE College and the community of the Belconnen Town Centre By a unanimous decision, the Board found that Ms 0' Connor and Mr Cope were equal on this criterion. As has been stated earlier (see Criterion 2 above) Ms O'Connor and Mr Cope have very good skills in fostering positive interpersonal relationships with parents and other members of the community. Both were able to present evidence of these qualities over many years and in different contexts. Ms O'Connor had through her committee work gained a knowledge of the types of contacts that will be important in the North Canberra College situation. Mr Cope had also gained important contacts both through his Schools Office positions and other activities. 7. Awareness of current curriculum developments and commitment to the program of secondary educational renewal By a unanimous decision, the Board found Mr Cope to be more efficient than Ms O'Connor in this criterion. Ms O'Connor has had extensive involvement in curriculum development and renewal at Weetangera and Macquarie Primary Schools. At her interview, Ms O'Connor showed she was aware of the latest educational trends in secondary colleges. In 1985 she was an alternate member of the Secondary Education Renewal Committee. Mr Cope displayed a greater involvement in successful and Lasting curriculum developments at various levels. As well as being aware of current curriculum research, he was also more perceptive of the problems and limitations in curriculum development and renewal in secondary colleges. 8. Appreciation of the role of school boards and of responsibilities towards the Authority, Board, staff and other members of the school/educational community and ability to undertake system level duties The Board decided by a majority that Ms O'Connor was equal to Mr Cope on this criterion. et ve on mee ee oe ee eee 193. Ms O'Connor has had extensive school board experience. As principal of Macquarie Primary School she has been the executive officer of the School Board for three years. Her work on many committees has given her an overview of the roles and responsibilities of those who make up the ACT school system. This committee experience has also demonstrated her ability to undertake duties at system and national levels. Mr Cope has had school board experience as parent and teacher member. He has also coordinated system level inservice programs for parent board members. His experience in CTS and Professional Development section has enabled him to develop good working relationships with many key people within the ACT Schools Authority. The evidence gained by the Board indicates that he has been able to undertake responsibilities at the system and international levels." Parties and Representation At the outset of the hearing counsel for Mr Burnett and Mr Price, the first and second respondents, submitted that the proceeding was improperly constituted as _ to parties. It was submitted that the first, second and third respondents, being the members of the Promotions Appeal Board, snould not have been made respondents as individuals but that the proper party was the Promotions Appeal Board described by that name. Alternatively, it was submitted that, if it were appropriate to name as _ respondents individual members of the Board, only the first and second respondents should have been so named as the decision of the Board the subject of the proceeding was a decision arrived at by a majority of the Board consisting of Mr Burnett and Mr Price. The consequence of Ms Duke, the third member of the Board, disagreeing with the view of the majority was, so it was said, that she was not a party to the decision being on tomty - eS oe ten peel ae Pe . 20. challenged and was not properly joined as a party respondent. An order was, therefore, sought that the proceeding be stayed until the applicant discontinued it as against Ms Duke. In developing these submissions counsel referred to Reg. v. Waddingham (1896) 60 J.P. 372, Kerr v. Commissioner of Police £19773 2 N.S.W.L.R. 721 at pp.724-5, Horne v. Locke £19781 2 .N.S.W.L.R. 88 at pp.90-1, Hamblin v. Duffy (No.2) (1981) 55 F.L.R. 228 at pp.243-4, Re Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 57 A.L.J.R. 649 at p.670, Westwood v. Lightly (1984) 2 F.C.R. 41 at p.43 and Rix v. Engleheart (1984) 8 I.R. 445 at pp.446-7. Counsel for Ms Duke referred to R. v. Small Claims Tribunal; Ex parte Escor Industries Pty Ltd (No.2) £19793 V.R. 635 at pp.636-7. Reference might also be made to Arnold v. The State of Queensland (Federal Court of Australia - 13 May 1987 - unreported). I declined to make the order sought and the hearing proceeded. My reasons for declining to make the order were that the question raised, being one of procedure, only, should have been raised at one or other of the directions hearings which preceded a date being fixed for the hearing of the substantive application and it had not been demonstrated that there would be prejudice to any party in allowing the hearing to proceed. I should, however, say that, in my opinion, it was incorrect to name each of the members who constituted the Promotions Appeal Board for the lee ne re oe eee . Cle, aaa aan a areee epee ew ne > voTy : D ealcquntanaearutanaieted and nendin iaaais tiealieaeheietaeiee aot ae en ee er ape 21. purpose of hearing and determining the appeals against the applicant's promotion as a separate respondent as if relief was sought against each of them in their personal capacity. In the light of the provisions of s.30 of the Teaching Service Act which provides for the constitution, From time to time, of such Promotions Appeal Boards as are required, each such Board to be constituted in the manner there prescribed, the appropriate course for the applicant to have adopted, in my view, would have been to name as one of the respondents to the application the three members of the Board adding some such descriptive words as "the members of a Promotions Appeal Board constituted under the Commonwealth Teaching Service Act 1972". That would seem to me to be the appropriate course not only ina case where the decision sought to be reviewed is a unanimous decision of the Board but also where, in accordance with the relevant statutory provision, s.30(9) of the Teaching Service Act, the question before the Board is decided according to the decision of the majority. Another unusual feature of the proceeding should be mentioned. Two members of the Promotions Appeal Board, Mr Burnett and Mr Price, were represented by Mr L. Katz of Counsel, instructed by the Australian Government Solicitor. The third member of the Board, Ms Duke, was separately represented. Mr J.B. Stinson, instructed by Manfred Stinson & Dougall, appeared on her behalf. Ms Duke apparently decided to be separately represented following her receipt of a letter dated 25 August 1986 from the Australian Looe sae np ee A a ta? ure . 22. Government Solicitor informing her that the Australian Government Solicitor could not act on her behaif in the proceeding. This decision appears to have been made on the basis that the matters raised by Ms Duke ina letter dated 12 August 1986 showed that the Australian Government Solicitor "could be in a conflict of interest" if it were to act on her behalf as well as on behalf of the other members of the Board. As the letter dated 12 August 1986 1s not in evidence, 1ts production having been objected to by Ms Duke on the ground of legal professional privilege, I cannot comment further. In any event, the matter is of relevance only upon the question whether an order should be made in respect of Ms Duke's costs. Failure to Make Full Inquiry The principal ground upon which the applicant seeks an order of review in respect of the decision of the Promotions Appeal Board is that the Board failed to carry out the statutory duty imposed upon it by s.29(3) of the Teaching Service Act to make full inquiry into the claims of the applicant and Mr Cope. It is said that the Board failed to inquire into a number of matters which were relevant to the issue of the relative efficiency of those two officers. The matters relied upon may be summarised as follows: (a) The failure of the Board to inguire into the applicant's experience on the Council of the Authority; (b) The failure of the Board to inquire into the applicant's performance as a principal of a primary school; ~ epee aoa tT 23. (c) The failure of the Board to inquire into the complexity and responsibility of the work done by Mr Cope in the development of the secondary curriculum at Christmas Island, in the Secondary Teachers' Training Program in Tonga andin the establishment of ELM (Education for Lay Ministers) for the Uniting Church; (d) The fazlure of the Board to interview all of the persons nominated by the applicant as referees or, at least, to interview a greater number than 1t did; and (e) The failure of the Board to inquire into the applicant's work ona number of committees to which she referred in her statement in support of her promotion. In relation to the first of these matters, the applicant relied heavily, in relation to a number of the selection criteria, upon the work she had performed as a member of the Council of the Authority and as a member of various committees, including committees of the Council. She adverted to that work in her application for the position and in her statement in support of her promotion. It is given some prominence in the report of the Advisory Selection Panel and there is no doubt it was discussed during her interview with the Promotions Appeal Board. In her application for the position the applicant said, inter alia: "My membership on the Council of the Schools Authority has involved continuing activities to examine the system's priorities in terms of Philosophy and long and short term educational objectives. This has meant a concentration on the system's philosophical and practical responsibilities to the community at large and to its students through the network of schools which have a high level of autonomy. — . . 24. I have a level of understanding which could be matched by few within the service." It is made clear in the statement of reasons furnished under s.13 of the Judicial Review Act in respect of the Hoard's decision that the Board, in considering the first of the selection criteria, accepted that the applicant - using the language of that criterion - had gained a good understanding of system and school philosophy and aims and had done so "through her involvement as a member of many policy-making committees". In relation to that criterion, however, the Board did not accept her statement that she had "a level of understanding which could be matched by few within the service". The statement of reasons again adverts' to the matter in relation to the last of the selection criteria where it 1s said that the applicant's "work on many committees has given her an overview of the roles and responsibilities of those who make up the A.C.T. school system". The statement goes on: "This committee experience has also demonstrated her ability to undertake duties at system and national levels." The Board also had before it relevant comments by the referees who had been consulted by the Advisory Selection Panel and by those referees and other persons to whom the Board itself referred. For the most part those comments were favourable to the applicant and supported her case. wren nee, yr ere ma mo 25. Counsel for the applicant sought to draw support for his submission from the absence from the statement of reasons of any reference in so many words to the applicant's membership of the Council of the Authority. However, I do not think the references in that statement to "policy-making committees" and to "committees" generally should be read in any narrow sense. The references are broad enough to include the Council and, in their context, are, in my view, to be so read. It is of some significance that, although each member of the Promotions Appeal Board gave evidence, they were not asked to clarify whether the references to committees were intended to include references to the Council. Counsel for the applicant, in his written summary of argument, and in oral argument used the generic term "committee" to include the Council. It is clear from Mr Burnett's evidence that the Board had regard to the applicant's work as a member of the Council. The matter had attracted particular attention because the view had been put by one of the appellants, a view clearly rejected by the Board, that the applicant's experience on the Council should be disregarded because it was not paid work. The applicant's work on the Council was an important part of her case and I have no doubt that the Board saw it in that light. It is apparent, on the material before the Court, that the Board accepted the factual material put before it on this aspect of the applicant's case and acted upon it in evaluating the applicant's efficiency for the position relative to that of the — ke Pap + epee nw ae me So eres sce ee errr ere Tye By roe we ogee > 5 eee = 26. appellants. It was clearly open to the Board to conclude that it did not require further material concerning the applicant's work as a member of the Council and, in particular, that 1t did not need to approach any other persons nominated by the applicant in order to have confirmed what it had already been told and accepted. The applicant has failed to demonstrate that there was any failure by the Board to carry out its statutory obligation to make full anquiry into the applicant's claim in this regard. ft am also unable to accept that there was a failure to make full inquiry into the applicant's performance as a principal of a primary school, the second matter upon which the applicant relies. That topic was amply covered in the documentary material before the Board and the applicant had ample opportunity to supplement that material in her oral presentation to the Board. The document signed by the members of the Board on 25 March 1986, the text of which is set out above, makes clear that the Board regarded the applicant as having been a success as the principal of Macquarie Primary School. I cannot conclude that the Board, consisting as it did of persons who had had extensive experience in the field of education, was bound to make further inquiry in order to evaluate the applicant's work as a principal. The aspect of the matter that was of concern to at least one member of the Board was that the substantial weeps wee ee Se er te =e Sa Lona ee re ep See oe we oe ee 27. involvement which the applicant had with a large number of committees may have affected adversely her work as a principal. After making such inquiries as the Board thought fit, this concern was dispelled. I cannot accept that the Board was required to do more. I turn to the third of the matters upon which the applicant relies. The case for the applicant is that the Board limited its inquiry to the quality of the work done by Mr Cope in Christmas Island, in Tonga and for the Uniting Church and did not examine in any detail the complexity of the work in fact performed or its level of responsibility. In my opinion, the evidence does not establish that there was any failure by the Board to inquire into the claim which Mr Cope made in relying upon his work in those fields. He dealt with these aspects of his experience in his written statement in support of his appeal. They were discussed during his oral presentation to the Board and were the subject of inquiry by the Board in consulting Mr Cope's referees. It is impossible to conclude, on the evidence, that the Board did not have an understanding, sufficient for its purpose, of the nature of the work on which Mr Cope relied or its complexity and level of responsibility. It must be borne in mind in this regard that each of the members of the Board was not a stranger to the field of education. Ro ee terre pe — ter eae oe a ey : bee 28. The fourth of the matters upon which the applicant relies is a complaint that the Board did not interview all of the persons nominated by the applicant as referees or, at least, a greater number than it did. It will be recalled that the applicant, in response to the invitation contained in the letter dated 15 November 1985 to nominate one or two referees, nominated eight persons to whom the promotions Appeal Board might refer. During the course of her interview by the Board, the applicant was asked to identify two of those nominated whom she considered should be consulted and to identify a third whom the Board might consult if it thought that course appropriate. In response to that question the applicant gave the Board three names, Mr Don Griffiths, Mr David Southern and Ms Lyndsay Connors. The members of the Board spoke by telephone with Mr Griffiths and Mr Southern and received information concerning the applicant. They also spoke to Mr Mal Lee and Mr Hugh Watson who were members of certain of the committees on which the applicant had served and to which she had referred in her statement in support of her promotion. Mr Lee was involved with the Secondary Education Renewal Group and Mr Watson with the Technical Advisory Group for Discipline in Schools. The Board also had available to it the summaries prepared by the Advisory Selection Panel of the comments made to it upon the applicant by the persons whom the panel consulted. Those persons clearly included mre oe - iw ee we '. 29. most, if not all, of those named by the applicant in the list of eight persons nominated as referees in her statement in support of her promotion. The Board did not, however, consult Ms Connors and the gravamen of the applicant's complaint rests upon the Board's failure to do so. According to the applicant's evidence, the reason for nominating Ms Connors was because the applicant had worked with her on the Council of the Authority and ona Ministerial advisory group known as the Portfolio Working Party on the Education of Women and Girls, two areas of work on which she relied to support her promotion. In respect of those areas of work the Board had material all of which was apparently favourable to the applicant. It also appears from the statement of reasons prepared in respect of the Board's decision that the Board accepted what had been put to it. In those circumstances, I am unable to accept that the failure of the Board to speak to Ms Connors amounted to a failure to make the full inquiry which it was obliged to undertake. As to the fifth matter upon which the applicant relies, there 1s nothing in the evidence to support the view that the Board failed to make full inquiry into the work which the applicant had done as a member of the various committees to which she referred. In addition to receiving what the applicant herself wished to say on the topic and the comments of her referees, the Board made specific enquiries in this regard of Mr Lee and Mr Watson. The Board ayes see sear es ~~ ae we '* 30. accepted that the applicant's work on the various committees on which she served had been of a high order and, being so satisfied, the members of the Board considered it unnecessary to inquire further. I cannot accept that the Board was required to make independent inquiries of each of the various committees mentioned by the applicant in her statement in support of her promotion or in her oral presentation. There was, in my view, no failure on the part of the Board to carry out its statutory obligation. Improper Exercise of Power Next, it is submitted that the making of the decision was an improper exercise of the power conferred by the Teaching Service Act in that the Board failed to take into account relevant considerations. For the applicant it is submitted that the Board was bound, by reason of the provisions of ss.28 and 29 of the Teaching Service Act, to have regard to each of the matters referred to in the definition of "efficiency" in s.28(2)(a). The particular matters which, it is said, the Board failed to take into account may be summarised as follows: (a) The applicant's membership of the Council of the Authority; (b) The statements which might have been made by the persons who were nominated by the applicant as referees but who were not consulted by the Board; (c) The fact that Mr Cope had not served as a principal; and (d) It is also said that the Board failed to give consideration to the question whether a candidate for the position of principal of a college needed college experience prior to promotion to that position. It will be seen that there is, an overlapping i between the matters on which the applicant relies under this ground of her challenge to the Board's decision and those already discussed in considering the complaint that the Board failed to make full inguiry into the claims of the . applicant and Mr Cope. It is unnecessary to repeat what has already been to matters (a) and (b). I am satisfied that the Board took I matter (a) into account. Iam also satisfied, in relation to matter (b), that the Board was not, in the circumstances, bound to make additional inquiries of other persons nominated as referees by the applicant. 1 As to the other matters, there was relevant factual material before Board failed weight to be attached to it was a matter for the Board, not L for this Court. It is significant that the members of the Board were matters had been taken into account. It is also to be noted said, or to add anything further, in relation to give consideration to that material. The . iy not asked in cross-examination whether these f i --- or eae) 31. The fact that Mr Cope had had one year's school experience in the Australian Capital Territory in the preceding ten years and had been promoted as a Band 4 position only recently. pe . the Board and Iam not satisfied that the ' 32. that neither the applicant nor Mr Cope had had experience in a secondary college. Error of Law A further submission put on behalf of the applicant 1s that the Board's decision is vitiated by error of law. This submission relies on the circumstance already mentioned that the members of the Board notified the Authority that three of the appellants were to be preferred to the applicant for the position. For the applicant it is submitted that the Board, having allowed the appeals of three of the appellants, was functus officio and was not entitled thereafter to determine which of those three appellants was to be preferred for the position. In my opinion this submission should be rejected. It is beyond question that the Board was required by sub-s.29(3) of the Teaching Service Act to determine the appeal of each appellant. That sub-section envisages that there may be one, or more than one, appeal against a provisional promotion and requires a Promotions Appeal Board to "determine the appeal or appeals". The statutory scheme may be thought to be deficient in that it contains no express provision to the effect that, where there are two or more appellants in respect of the one promotion, the Promotions Appeal Board, if it considers that two or more appellants have established the grounds of their appeals, is to allow the appeal of only one of those appellants, being the appellant whom it considers to have the best claim to serena we , 33. promotion to the vacant position (cf. s.50(8F) of the Public Service Act 1922 (Cth) as in force prior to its repeal by s.27 of the Public Service Acts Amendment Act 1982 (Cth) and s.50D(3) of the Public Service Act 1922 (Cth) as at present un force). Notwithstanding the absence of such an explicit provision, a direction to the Board to that effect is, in my opinion, to be implied from the relevant provisions of the Teaching Service Act. The procedure which the Board followed of considering separately the relative efficiency of the applicant and each of the appellants was clearly appropriate. Having followed that procedure it decided that six of the nine appellants had not established that they should be preferred to the applicant for promotion to the position while, in the case of the other three, each had established superior efficiency to the applicant for the position. Having proceeded so far, the task remained for the Board to determine which one of those three appellants was to be preferred. This it proceeded to do and for that purpose interviewed those three persons for a second time. I can see nothing wrong with that procedure. If the Board made anerror it was in recording ina formal way the decisions it reached in relation to the three appellants whom it regarded as having a greater claim to the position than the applicant. Even if it were in error in doing so, I am unable to conclude that the Board thereby became functus officio and was unable to complete the task which the statute had committed to it. 4 34. A further ground on which the applicant relies is that a fair-minded member of the public might entertain a reasonable apprehension that Mr Burnett might not bring an impartial and unprejudiced mind to the resolution of the appeals against the applicant's promotion. A number of matters is relied upon which, taken singly or in combination, are said to require the decision of the Board to be set asade. The first matter concerns a conversation alleged to have taken place on 3 November 1985 between Mr Burnett and Robert Noel Cox. Mr Cox, in an affidavit sworn on 21 August 1986, deposed to having attended a luncheon at a private home at which seven persons were present including Mr Burnett and his wife. Paragraph 3 of the affidavit states: "Immediately prior to the luncheon being served, I was engaged in conversation with Mr Burnett about education in the A.C.T. Im discussing his role as Chairman of the Promotions Appeal Board, Mr Burnett said to me 'Now we're caught up in this E.E.0. nonsense' or words to that effect." The words alleged to have been spoken by Mr Burnett are said by the applicant to have special significance in this case because the fourth of the selection criteria referred to the equal employment opportunity policy of the Authority and required the Board to consider each candidate's willingness and ability to supervise in a manner consistent with that policy. 4 35. Both Mr Burnett and his wife gave evidence of the conversation. Mr Burnett, in his affidavit sworn on 25 November 1986, deposed that he did not say to Mr Cox during the lunch the words attributed to him by Mr Cox in par.3 of his affidavit sworn 21 August 1986. He further deposed that he did say words to the effect of those attributed to him in par.6 of the affidavit sworn on 30 September 1986 by his wife, Noelle MacArthur Burnett. According to Mrs Burnett, the conversation concerned developments in the _ schools system in the Australian Capital Territory during the preceding four months when she and her husband had been overseas. She said that the general discussion which ensued included discussion of the then recent policy adopted by the Authority to give all higher duties positions of less than six months' duration to women. During that discussion she said (par.6 of her affidavit) that her husband said words to the following effect: "Oh yes, my daughter has told me all about that. It makes a nonsense of E.E.O. If ail the positions go to women, there is no equal opportunity. " Mr Cox swore an affidavit in reply on 17 October 1986. In that affidavit he said he could recall some general discussion at the lunch of the policy referred to by Mrs Burnett but he could not recall Mr Burnett saying the words referred to in par.6 of her affidavit or anything similar. In cross~examination, he offered the explanation that there had been two conversations, one between Mr SO eee ee ' rn) « aan oe tee ee seaat aeimentamane re er eee en ey 36. Burnett and himself concerning Mr Burnett's work on the Promotions Appeal Board and a general conversation concerning the policy of the Authority to give all higher duties positions to women. He could not recall what was said in that general discussion but reiterated that Mr Burnett had spoken words to the effect of those set out in , par.3 of his earlier affidavit and that those words related to Mr Burnett's work on the Promotions Appeal Board. Mr Cox agreed that he thought Mr Burnett was referring toa then recent development in the relevant policy of the Authority. He appears, however, to have regarded the steps taken by the Authority in 1983 and 1984 in relation to equal employment opportunity as answering the description of recent developments. I accept the version of the conversation given by Mr and Mrs Burnett. I think it more probable that the reference to the equal employment opportunity policy was made in relation to the changes in that policy which had then recently been made rather than to the introduction of the policy itself, an event which had occurred some considerable time before. I am not persuaded that a fair-minded member of the public who heard Mr Burnett's comment would reasonably apprehend that he might not bring an impartial and unprejudiced mind to the discharge of his duties as a member of the Promotions Appeal Board. It must be remembered that the question which the fourth of the selection criteria obliged the Board to consider was not related to the content or appropriateness of any part of the a Veo en eee eee ce erry ase 2 . ee teen een m7 aye ~ ae co es oe ee " 37. equal employment opportunity policy of the Authority but whether the candidates whose efficiency the Board was assessing had themselves demonstrated a willingness and ability to supervise those under their control consistently with that policy. I should add that, if, contrary to the view I have expressed, the words which Mr Burnett used could give rise to a reasonable suspicion of bias, I would refuse the applicant relief on that account because of her failure to raise the matter at a much earlier point of time., The applicant's evidence is that in early December 1985, that is prior to the end of the school year, she was aware that Mr Burnett was to be the Chairman of the Promotions Appeal Board to hear and determine the appeals against her provisional promotion. She also became aware at about that time from Mr Cox of what Mr Burnett was alleged to have said at the luncheon on 3 November 1985. Notwithstanding this, she took no steps whatsoever to raise the matter either with the Authority or with Mr Burnett or with the Hoard, the consequence being that the Board conducted its hearings and deliberations over a period of some eight weeks in ignorance of the fact that a claim was to be made that the Chairman of the Board should not have participated in those hearings and deliberations. It is also said on behalf of the applicant that a fair-minded member of the public would regard Mr Burnett as ns on a nm eee er ee ee genneee: 38. having prejudged the applicant's case by reason of the circumstance that, during the consideration of the appeals by the Board, Mr Burnett raised the question whether the applicant's membership of a large number of committees had adversely affected the carrying out by her of her duties as principal of Macquarie Primary School. The applicant relies on the circumstance that Mr Burnett raised the question more than once with the other members of the Board and recounted to them his own experience that involvement in committee work so restricted the time he could devote to actual teaching that he had given up most of his committee work. To suggest that a fair-minded member of the public hearing Mr Burnett so express himself would reasonably suspect that he would not bring an unprejudiced and impartial mind to the task of determining the appeals against the applicant's promotion is, to my mind, quite fanciful. The next matter relied upon concerns an incident on 12 February 1987 when the applicant entered a room in the Downer Primary School where the members of the Board were deliberating and handed a letter to Mr Burnett. The letter, Which bears date 12 February 1987, reads: "T have spoken with several people to whom the Board has gone to seek evidence in relation to my claim to the position of Principal, North Canberra College. As a result of these discussions I must bring to your attention several matters which concern me greatly. The first relates to my administrative experience, educational leadership and professional credibility. tre me re trey ee ee - of oyotor: 39. It is my perception that the committee has paid scant attention to these issues, which are very important aspects of the duty statement and selection criteria. I am concerned that the Board should treat me fairly in these matters by seeking the opinion of those who have worked with me over a long period and who are in the position to judge my capacity. To this end, I request that the Board contact Ms Lyndsay Connors, a referee whom I particularly requested at the time of my interview. Ms Connors is able to comment in detail on these and other areas because of the periods that we have worked together on the Schools Authority Council and 1n the Portfolio Working Party. Should you require further evidence I would like to suggest Dr Frank Coulter, who could also comment on my association with the Canberra C.A.E. You could also contact Dr Cherry Collins, a person whose knowledge of theory and practice in secondary education is widely acclaimed. Iam sure that any of the appointed members of the Authority Council could give reliable comment on my administrative ability and knowledge of educational issues. My second concern relates to the common questions which were asked of particular referees. My perception is that several of the questions have an inbuilt bias which is very likely to be prejudicial to me. I understand that one of my referees stated this to you at the time of interview and that the other expressed some anxiety. While I believe that they (the questions) have little, if any, relevance to the duty statement and selection criteria, I believe that in fairness to me you should contact Ms Rosemary Walsh in the Schools Office. Ms Walsh has seen me interact with secondary college students from Hawker and Dickson Colleges. Ms Walsh and the students were/are members of the Schools and Community Standing Committee. Topics that were discussed included: the role of S.R.C.'s in colleges; the systemic prejudices (in the eyes of the students) which were/are used by principals, teachers and, at times, parents to limit the participation of ster ger te ee eae ' 40. students; methods which could be used to allow students to participate more as equals in school decision-making; the role of students and their rights in relation to 'public' issues such as peace and anti-nuclear activities; - appeals processes in colleges and the difficulties which students encounter; - student attitudes to tertiary and accredited courses; . the discipline study. It seems to me that the Board is predisposed to certain unwritten criteria and I believe that these should have been made known to me because of the obvious disadvantage which would accrue to anyone who came from any sector other than the secondary. These are matters of major concern to me and I believe it is only fair that I should alert you to them at this stage. Could you please convey my concerns to the members of your board. I will keep a copy of this letter for my own records and will also forward a copy to the relevant officer in the A.C.T. Schools Authority." As the letter refers to "the common questions which were asked of particular referees", it may be convenient to set out the questions for referees which were prepared by the members of the Board and which, according to the affidavit of Ms Duke, were addressed to the referees of the applicant who were spoken to by the Board. Those questions were in the following terms - "1. Would you comment on --- ability to provide high level professional and administrative leadership in both the planning and running the Nth Canberra College. el eaeeees enue TT —— ny " ai. 2. Would you comment on --- understanding of the needs of secondary college students. 3. Would you comment on --- knowledge of curriculum development and renewal, with particular reference to secondary colleges. 4. Can you provide any examples of -~-- commitment to community involvement in school decision making. 5. Can you provide examples of --~'s willingness to supervise ina manner consistent with the Authority''s Equal Employment Opportunity policy? 6. Are there any other comments you wish to make about ~---?" There is no evidence that the applicant had seen a copy of those questions. It would be surprising if she had done so. Her perception of them was derived solely from conversations she had with such of her nominated referees as the Board had consulted. The applicant says that, on the occasion in question, she entered the classroom in which the members of the Board were meeting through an open rear door having, she says, knocked before entering. She says that it was obvious to her that the Board members had not heard her knock and she then interrupted by saying "Excuse me Cliff I have a letter for you" or words to that effect. She says she then walked across the room, handed the letter to Mr Burnett and left the classroom. The applicant relies upon the evidence given by Ms Duke as to what followed the delivery of the letter. aaeeee ae ee ' 42. According to Ms Duke, each member read the letter and after some discussion between the Board members whether other referees nominated by the applicant should be spoken to, Mr Burnett said: "This letter is the act of an unbalanced person". The words attributed by Ms Duke to Mr Burnett were described by counsel for the applicant as "an outburst that was disproportionate to the letter and its method of delivery". Mr Burnett's version of what occurred, as set out in par.10 of his affidavit sworn 25 November 1986, is as follows: ",... On the occasion in question, the members of the Board were deliberating ina room with the door closed. The Applicant entered the room without knocking and handed me the letter .... If had never previously experienced an attempt by a party to a promotions appeal to communicate with the Board during the course of its deliberations. After the Applicant left the room all three members of the Board read the letter and discussed both its delivery and contents. I did not say during the discussion: 'This letter is the act of an unbalanced person'. I did say words to the effect: 'This letter and its method of delivery show a lack of balance.' Both the Second and Third Respondents agreed that the Applicant should not have sought to communicate with the Board as she had." Mr Price, the other member of the Board, agreed with Mr Burnett's account. In cross-examination he expressed himself as being certain that Mr Burnett had not ttre rts i ra a ore ap ee em me ee ete 43. said that the letter was the act of an unbalanced person. He thought, however, that the word "unbalanced" had been used though he was not asked to say in what context. In cross-examination Mr Burnett said that his comment was prompted by two considerations. The first was that the appropriate procedure for communicating with the Board - a procedure which he considered had been well publicised and would have been well known, particularly toa person with the applicant's experience - was through the Executive Officer whose duties include providing administrative assistance to Promotions Appeal Boards. The second consideration was that the questions for referees had been prepared by the members of the Board on the basis of the duty statement and the selection criteria and to suggest, as the letter did, that they had little relevance to those documents struck Mr Burnett as being very strange and to represent an unbalanced view. I have grave reservations about accepting Ms Duke's version of the words used by Mr Burnett. Her version is contrary to that of both Mr Burnett and Mr Price. But what is of far greater significance is that Ms Duke's affidavit has been shown to be unreliable in recording what she says was conveyed to the Board by persons of whom the Board made enquiries. The unreliability of her affidavit is apparent from a comparison of what is said in the relevant paragraphs of the affidavit and the contents of the notes which she made contemporaneously with the statements being made to the . 44. Board. I refer to pars 7 and 16 of her affidavit affirmed on 3 October 1986. Paragraph 7 records words alleged to have been spoken by a Mr Callender during a_ telephone discussion with members of the Board. Paragraph 16 purports to record the substance of the response made by Mr Lee of the Secondary Education Renewal Group to an inquiry made of him by the Board concerning the applicant. In neither case does the affidavit faithfully reproduce what is recorded in her notes. In the case of both converations, Ms Duke's contemporaneous notes accord with Mr Burnett's version of the conversations as set out in pars 6 and 9 respectively of his affidavit sworn 25 November 1986. The significance of the discrepancies between Ms Duke's notes and what is said in her affidavit is all the greater when regard is had to her oral evidence that she used her notes to refresh her memory in preparing the affidavit. I accept Mr Burnett's version of what was said. That amounted to a comment reflecting his immediate reaction to the event which had just taken place and was clearly critical of the contents of the letter and the method of its delivery. I donot find it necessary to express a view whether his comment was wholly justified in the circumstances but I am not persuaded that the fact that it was made leads to a reasonable apprehension of bias on his part. Ree te ten oe ee a | sempenndieh beatanetieteanesterstions be edema wee eee we, wey 4 45. Unreasonable exercise of power The submission is also made on behalf of the applicant that the exercise of its power by the Board was so unreasonable that no reasonable person could have _ so exercised the power. There is, in my opinion, no substance whatsoever in this submission. It cannot reasonably be disputed that there was material before the Board which supports' the decision to which it came. It is, of course, no part of the Court's function to consider whether it would itself have reached that decision. Conclusion For the reasons given above, the application is dismissed. The applicant must pay the costs of the first, second, fourth and fifth respondents. As has already been mentioned, the third respondent was represented separately from the other members of the Board. Iam not satisfied that the applicant or, indeed, any other party should be required to bear the cost of that separate representation. I, therefore, make no order as to the third respondent's costs. I certify that this the preceding 44 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. View Krew Associate Dated: 31 August 1987 ares aoe ee nr eer wi erry, arene years ares pone t en a ' 46. Counsel for the applicant Solicitors for the applicant Counsel for the first, second and fourth respondents : Solicitor for the first, second and fourth respondents 3 Counsel for the third respondent Solicitors for the third respondent Counsel for the fifth respondent Solicitors for the fifth respondent oo Dates of hearing Mr R.C. Refshauge Macphillamy Cummins & Gibson Mr L. Katz Australian Government Solicitor Mr J.B. Stinson Manfred Stinson & Dougall Mr W.B. Loftus Crowley & Chamberlain 9, LO, 11 and 12 February 1987 maa Serpe er wre ee ee ee wpe oe oe ee aoa we