r "Wee few Kt" | JUDGMENT No. AFL nn IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G158 of 1987 ' GENERAL DIVISION . ) BETWEEN: ROBERT WALTER BARNES Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent DOUGLAS W. SMITH é Second Respondent AND: ALLAN MUIR Third Respondent AND: PETER REILLY Fourth Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. ? DATE OF ORDER: 20 AUGUST 198 P 1987 FED WHERE MADE: BRISBANE "AUSTRAL AY OF PRINCIPA| REGISTRY THE COURT ORDERS THAT: 1. The application for a stay be dismissed. 2. Costs of the application be costs in the proceedings. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. z i Ree pee ene ee re . PSUS NTT : psy rey rene ee ee I ee pe en = ee os Tee ak " 2 oe . IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G1i58 of 1987 GENERAL DIVISION ) BETWEEN: ROBERT WALTER BARNES Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent AND: DOUGLAS W. SMITH Second Respondent AND: ALLAN MUIR Third Respondent AND: PETER REILLY Fourth Respondent PINCUS J. 20 August 1987 EX TEMPORE REASONS FOR JUDGMENT This is a difficult matter but I have been assisted by submissions which have clarified my mind. I was initially uncertain how to approach it, but I think that the contentions which have been made have resolved the issue to my satisfaction, so, although I would have preferred to write amore elaborate judgment, it seems to me desirable that I give judgment now. The application is made for a stay in proceedings brought under the Administrative Decisions (Judicial Review) Act — eu 1975-1983. The applicant was until recently a watchman employed by the first respondent, the Australian Telecommunications Commission. I call him a watchman, although his designation was actually Assistant Grade 2, and he was employed as a Security Assistant. He was charged in July last year in relation to events which occurred in May of that year. The charges were, in substance, absenting himself from or not reporting for duty. It is unnecessary for the purposes of these reasons to set out the provisions of the relevant statute under which he was charged, the Telecommunications Act 1975. It is enough to say that it provides for a two-stage process; an initial consideration by authorised officers, and then an appeal to a Disciplinary Appeals Board; both these stages have occurred. In October 1986 the applicant was notified that the authorised officers had directed that he be dismissed from the service of the Commission in relation to four of the charges against him. He exercised his entitlement to appeal, and the hearing of the appeal took place in March and April 1987. On 14 August 1987, by a majority, the Board confirmed the decisions dismissing the applicant from the service of the commission. The dissentient member, Mr. Muir, has appeared before me and has presented me with some material, which has become exhibit 1, and Which I found of assistance. The applicant has applied for an order of review of the decision of the Disciplinary Appeais Board and that of the authorised officers. The application is based on a number of pe ee ye tne ere rer ey im oS ye ' 4 ' emironn pm ye ey oe grounds which have been elaborated by counsel, but before dealing with them I should mention a more general consideration. In Wattmaster Alco Pty. Ltd. v. Button 70 A.L.R. 330, a decision of the Full Court dated 18 December 1986, a majority of the court consisting in Sheppard J. and Wilcox J., with whom Fox J., as to this aspect, agreed, considered the important question of when orders under the Administrative Decisions (Judicial Review) Act setting aside administrative decisions take effect. The most important aspect of their Honours' consideration from the point of view of the present case appears at pp.335 and 336 of the report, and where their Honours said: "A decision made in purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision 15 held to be bad in law it will be treated as being invalid - at least in so far as substantive rights are concerned - as from the date upon which it was made. If the issue between the present parties had been resolved in proceedings of a different type, for example by proceedings for an injunction to restrain the Collector of Customs from demanding payment of the dumping duty, the effect of the finding made by Pincus J. would have been that the Minister's declaration was never valid; so that any previous payments were made at a time when the declaration was without effect. If, in the present proceedings, the matter had been resolved by the making of a declaration pursuant to s.16(1)(c) of the Administrative Decisions (Judicial Review) Act, a like result would have obtained." I interpolate that, as is evident from what their Honours said, the case was before them on an appeal against a decision with respect to dumping duty. The decision was set aside and a ST we rome owe a nn it' we eee question arose as to the date from which the setting aside should take effect. Their Honours went on (at p.336): "Desirably, procedural circumstances ought not to affect substantive rights. In cases where an applicant is concerned only with the future the point does not matter. But, where it does, it seems generally appropriate that the substantive effect of orders under s.16(1)(a) be consistent with that of those made in the grant of other forms of relief. Of course exceptions may be envisaged, especially in the area of Public Service appointments." Their Honours went on to discuss the matter further but I do not propose to set out the balance of 1t. The reference to Public Service appointments might at first sight suggest that their Honours were of the view that in such a case as this, if the applicant succeeded in having the decision attacked set aside, then the setting aside would take effect as from the date of the Court's order. It seems to me, however, improbable that that would be so here. The Commission says that it is awkward to f1t the applicant into its employment structure now. It would no doubt be as awkward if the application succeeds. I take from the remarks of the Full Court that, at least prima facie, the effect of success in these proceedings would be that the decision of the Board would be set aside as from the date on which it was made. That has important consequences which will be mentioned later in these reasons. A second question which has troubled me is whether, and if so to what extent, the principles applicable to oe Ta PT Te pe Pre wy row St st en a prey ee tem the grant of an interlocutory injuntion to restrain an employer from dismissing employees in breach of contract should govern such an application as this. Contracts for personal service are not ordinarily made the subject of a decree of specific performance, nor enforced by injunction. It seems to me likely that if proceedings of this sort were brought in reliance upon a contract, and pending resolution of the matter finally, an application for an injunction were made, it would be refused. More recent authorities, however, suggest to me that there may be some weakening of the old rule. Some of them are conveniently collected in the judgment of Mitchell J. in Baker v. Corporation of City of Salisbury [C€19821 2 I.R. 168, and I agree, with respect, with the learned judge's analysis of the cases. Spry on Equitable Remedies, Third Edition, p.112 suggests that the general rule whereby special personal relationships are not ordinarily enforced in specie involes merely a discretionary consideration and that there 1s no absolute bar even in equity. That seems to me to be a correct view. Here, as I have mentioned, it would no doubt be awkward and inconvenient for the Commission to he required to keep the applicant in employment pending the final resolution of the case, but not to any great degree. I therefore approach the matter on the basis that there is a discretion, but f have to keep in mind the strength of the old rule as to enforcement of employment contracts. Se ete neg tet a 85 Tt is necessary now to come to the six points made by Mr. Sheahan of counsel on behalf of the applicant. The first argument advanced was that there was a breach of the rules of natural justice, in that in the course of considering the matter the Board took into account material which had not been disclosed to the applicant, the appellant before it. The material was taken into account in the course of proceedings, as appears from a passage at p.99 of the reasons, in which the Board said: "Sometime after the proceedings before the Board had ended, the members of the Board met again for a lengthy discussion concerning the penalty which it would be appropriate to impose. At that time, pursuant to the provisions of Regulation 19 of the Telecommunications Regulations, the Board had before it a list of vacant positions for Which the Appellant might be said to be qualified. There were remarkably few and 1t was clear that a contraction of employment in some areas of the Commission's operations was taking place. During that discussion, the Board canvassed the extent of the obligation, if any, resting on the respondent Commission to find a place of some kind for the Appellant." The discussion goes on in a way which is relevant but need not be quoted at length. The Board came to the view that there was no obligation in the circumstances on the Commission to find a place for the appellant. Miss Wilson, for the Commission, argued, and prima facie it seems to me to be correct, that throughout its very lengthy reasons the Board dealt with hoth the question of liability and that of penalty. It seems to have taken a view adverse to the ree eee rere " ae aren Le fer benaiedaaeeteninemetehtanes dneeiatetde taka eine . PN .- a omen pe ore a ae ee , > applicant as to his suitability for employment by the Commission. It is not, of course, for me to determine in fact whether it was right or wrong in taking that view, but reading the reasons as a whole it appears likely that the list to which objection is presently taken was not a critical factor in the decision which was finally arrived at. The Board took into account the whole of the circumstances as it appeared to it. It seems to have decided that the applicant simply was not entitled as a matter of justice to continue in his employment. Questions also arise under this heading with respect to regulation 19 of the Telecommunications Regulations, which deals with the procedure of the Board, and the applicability to the Board of the principles of natural justice. As to those two questions, my prima facie opinion is in favour of the applicant, but on the substance of the matter I must say that the point raised firstly by Mr. Sheahan appears rather weak. In the course of a very lengthy judgment, it is almost inevitable that some remarks may be made which could be thought to be slips. The importance of those remarks must always govern when considering whether they are likely to result in a setting aside of the whole decision. The second point taken by Mr. Sheahan was that there was no evidence of authority of the authorised officers to whom I have referred, under s.58 of the Act. The matter was raised before the Board by the applicant's solicitor, 'Mr. Channell, and is discussed at pp.98 and 99 of the reasons. re oe ee ee ane epee ~ ae a In substance, what the Board seems to have said is that, although Mr Channell asserted the contrary, it was enough for the Commission's advocate before it to assert that there were the necessary delegations under subs.3 and 5 of s.58, without producing copies of the gazette. The Board so found, and also acted upon the view that the hearing being de novo, any failure by the Commission to observe the requirements as to authorisation had been cured. The point is a highly technical one, but it seems to me to be arguable, and I say no more about it. The third matter raised by Mr. Sheahan was that irrelevant considerations had been taken into account, as he said, because the Board considered against the applicant activities he undertook as a union official. T have had, since the matter was first before me, an opportunity to read and re-read the reasons, and I must say that that contention seems to me to have no substance whatever. As Miss Wilson has pointed out, the Board was careful to emphasise the applicant's right as a union official to make appropriate submissions, but it did not concede, nor should it have done, that that absolved him of any blame in respect of matters of which the Board complained. A union official is not obliged, by reason of his holding that position, to hang up on his superior officers repeatedly. The fourth contention advanced by Mr. Sheahan was that Matters which were relevant had been wrongly ignored. I do not propose to go into that contention because it does not seem, to me, to be of any substance. 'aed aas yee pen om . nes rat To ttt re eerrrepe ce en er woe eee cares) fy ' "a. The fifth contention related to an assertion that the Board should have taken into account in favour of the applicant a bona fide belief that he was entitled to particular rights under an award. This is a matter that requires some brief explanation. There was a contention before the Board that the applicant had rights to take meal breaks under an award, and the Board held that was not so. They held that what had, in fact, happened was that, under the relevant award, there was an entitlement which the Board treated as if they applied was the APTU award. Mr. Sheahan did not challenge the correctness of that conclusion, but his point was that the applicant's case that he had a bona fide belief that the latter award applied should have lessened the impact upon the Board's mind of his claiming rights under the inapplicable award. I have not reached even a prima facie conclusion as to whether the point has any substance, but it seems to me fairly slight. The sixth contention does not seem ta me to require specific mention. Mr. Sheahan argues that there are serious questions to be tried. It is necessary, in view of the way in which this Matter is heard - that is, simply on what might be called impressions rather than by trying to reach any deep conclusions - not to say too much. It may be, for example, that matters which on the present argument seem to me to have no substance, when further developed, perhaps before a different judge, would have more success. My impression on the whole, however, is that the applicant's case has one or more drguable points, although not ones of enormous strength. we Se te er weer ee mm si Tet 7 y ~ = ase a : 10. On the whole, I am of the view that the question whether a stay should be granted has to be determined as, Miss Wilson contended, on the basis of the balance of convenience, and that is, in my opinion, the central question in the case. It does not appear to me that the circumstance that the effect of a grant of a stay would be to force on the Commission an employee they decidedly do not want is a matter totally to be ignored. The flavour of some of the relationship between the applicant and a person superior to him is given by a passage at p.73 of the Board's reasons when, according to the applicant's evidence, after there had been a contention that he had failed in some respect, he asked the superior, Mr. Kindelan, why he had failed to phone. Mr. Kindelan said he had, and the applicant said, "'Bullshit you did,' and I said, 'I've been down to the toilet. I've been crook, and I've come back up, and that's that.' I think at that particular stage I said to him, 'I'll hang up. Ring the phone and see if it works if you ring,' that was it. The following call - normally, JI ring in a minute or two before the hour - and the following call I rang in and I said, 'Mount Gravatt OK.' And Kindelan said in a smart way, 'I suppose you're still sick?' I told him to go and get fucked, and he said, 'I'11 fucking get you for this too.' I told him that I had more on my mind than some arse hole like him crawling up the bosses' arses, and if 21t upset him so much, he can put me down for a meal break." It is relevant, also, that the nature of the conduct of which the Commission complained before the Board - absenting himself from his post, and not reporting for duty as a watchman - pom ore ey coated wae ret wor aoe CR oo te ee ee .' ' en pen epi wee z hoeoe oe ll. is such (if it occurred - a subject upon which I could not, of course, form an opinion for myself) as to give the Commission justification for lacking confidence in his ability properly to carry out duties of the kind which he formerly carried out. The matter is able to be heard by the court without any great delay, but it is likely, as Miss Wilson implied, that some months will elapse before it is finally determined. It is, in my opinion, understandable that the Commission would not want to keep, except under compulsion, a watchman who, in their belief, has demonstrated that he cannot necessarily be counted upon faithfully to discharge the central duty of adhering to his post. It does not appear to me, however, likely that either the applicant or the Commission would suffer any insupportable hardship by the applicant's retaining or not retaining the advantage of his present employment. I have read with care the Commission's assertions as to the matters which will inconvenience them 1f the applicant remains in his position, or in some other position, pending the resolution of the matter. Ihave noted the material filed on behalf of the applicant as to the financial position he will be placed in. But in the end, the central point is this: it is likely, if the Full Court's decision to which I have referred is applied, that if the applicant succeeds, he will not lose by the dismissal held to be wrongful. He will be entitled to be reinstated as from the date when he was dismissed, at least prima facie. Ten oh area . as wiser ret Sos ek ws por - oe fee manent eee —— —— yc enemies egy ro +e 12. The Commission, in apposing the stay, takes the risk that it may be paying for nothing in respect of the period when he is out of work. In saying that, of course, I do not by any means purport to bind the hands of whoever tries the case if the applicant succeeds, as to the date from which the order would be effective, but I must, prima facie, apply the rule laid down by the Full Court. The applicant, on the other hand, on the material before me, will receive not less money but more money between the present time and the date when the matter is finally determined, if he is discharged; he will receive, probably, thousands of dollars more. Although neither counsel has referred me to any authority which provides guidance in this rather unusual situation - and I suspect there 1s none - it seems to me that on the orthodox principles, the applicant has not shown that it is more convenient that there be a stay than that there be no stay. In my opinion, there should not be a stay, and the application for a stay will be dismissed. bea ber cost oa f/f anced + wf eo pet cesy cf 2 veesens for peageacc oon. or cis bloncur Mr Jjust'ce » ncus eatley Associate Dated Zo August (qe 7 v4 rte on ioe