ar wn JUDGMENT No. lle. 73S CATCHWORDS ADMINISTRATIVE LAW - Forced retirement of Telecom employee upon medical grounds - Relevant medical information not disclosed to employee before decision - Whether decision void for failure to provide natural justice - Effect of right of review by Review Tribunal - Appeal by employee to Review Tribunal ~ Validity of Board's decision - Delay by employee in prosecuting appeal - Discretion of Court to refuse relief. Telecommunications Act 1975 s.56 NSW G.116 of 1987 JOHN RICHARD REID v AUSTRALIAN TELECOMMUNICATIONS COMMISSION & ORS Wilcox J Sydney 3 February 1988 wee Mee ner mae nara IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: CORAM: WILCOX J PLACE: SYDNEY DATE : 3 FEBRUARY 1988 THE COURT ORDERS THAT: NSW G.116 of 1987 Sew ww JOHN RICHARD REID Applicant AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent DANIEL HENRY GUILFOYLE, J RABJOHNS and N GOLDING (known as the REVIEW TRIBUNAL) Second Respondents MINUTES OF ORDER 1. The Application be dismissed. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. we wre meee oe tiated BY Secret ee ee ee IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSW G.116 of 1987 ew GENERAL DIVISION BETWEEN: JOHN RICHARD REID Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent DANIEL HENRY GUILFOYLE, J RABJOHNS and N GOLDING (known as the REVIEW TRIBUNAL ) Second Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 3 FEBRUARY 1988 REASONS FOR JUDGMENT This proceeding is an Application for review of two decisions made in connection with the applicant's employment by the first respondent, the Australian Telecommunications Commission ("Telecom"). The first decision was made by an officer of Telecom itself, the second by the members of a Review Tribunal, constituted under regulations made pursuant to the Telecommunications Act 1975. Those members are the second respondents to the proceeding. ae ee = ser = op The applicant, John Richard Reid, was born on 11 November 1947. He commenced employment with Telecom as a clerk, class 1, in the Revenue Branch on 20 February 1978. During his period in that branch there were criticisms, of which Mr Reid was aware, concerning his productivity. On 8 October 1981 he was redeployed to Newtown District Branch, still in the position of a clerk, class 1. During 1982 Mr Reid was seconded, on an acting basis, to perform clerk class 2/3 duties but, in the view of his superiors, he did not perform those duties satisfactorily. In January 1983 he was taken off those higher duties and returned to class 1 duties. However, there were continuing complaints about Mr Reid's productivity and punctuality. In July 1983 he was warned about his habitual lateness for work and he was asked to explain his poor work output. An explanation was offered but complaints continued to be made. Consideration was given to his return to Revenue Branch, but this did not eventuate. On 1 August 1983 Mr Reid suffered a nervous breakdown and he went off work for five months, returning on 3 January 1984. Worker's compensation was paid to him during that period. The decision was taken by Mr Re1d''s superiors that he should resume work in a different branch, Rockdale. The idea, as it was expressed in a memo of 21 December 1983, was that: "Rockdale TBO will be a new environment for Mr Reid with new workmates and a new supervisor - a clean slate". The memo reveals that Mr Reid was interviewed at that time. As the memo went on: awe aye me ey "Mr Reid was cautioned about letting a 'fresh' opportunity slip and was advised that he should cure his habit of tardiness and that he will need to produce at a rate commensurable to that of his peers. Mr Reid agreed that these were reasonable demands and accepted the new environment as an ideal location to resume his career." At the request of his superiors, the Rockdale Business Office Manager made regular reports on Mr Reid's progress in her office. These reports disclosed that, despite special supervision, Mr Reid was not coping well. He was absent from work due to stress for three days in July. On 2 August 1984 Mr Reid's position was reviewed by Mr L J Bloxom, the District Telecom Manager. He wrote a memo to the Manager, General Personnel Services Branch, summarising the position: "Mr Reid commenced compensible leave (work stress) on August 1, 1983. Mr Reid had been redeployed from Revenue Branch, Finance and Accounting Department to Newtown TBO in December 1981. As a result of his 'work stress' Mr Reid was off work from August 1983 to January 1984. Government Medical Officer Bruce recommended that Mr Reid return to work in a different location with different duties and that he be interviewed by local management before commencing. He was advised that he should not let a fresh opportunity slip, that he would need to cure his habit of tardiness, that he would receive extensive training and supervisor support and that his work output would be closely monitored. By moving him from the 'production' group at Newtown TBO to the Service Order Team at Rockdale TBO Mr Reid was placed in a position where the absolute minimum of pressure existed. There is no other clerical job in an Operations Department Branch that is as protected from stress inducing factors (such as dealings with the public, dealings with fellow staff or the meeting of deadlines). oes "5 wt erence ee, TTT wre ee eae 5 ree a — ra In the seven months that Mr Reid has been at Rockdale he has had 20 1/2 days sick leave, very poor work output, and a further 5 days compensible leave for 'nervous disorder'. It 1s this latter situation which causes most concern. Obviously, Mr Reid's 'redeployment' to the Service Order Team is not successful. Putting his poor attendance and output aside, Mr Reid has been sheltered as much as possible and still succumbed to his nervous condition. It is my belief that Mr Reid should be immediately removed from the work face. I also consider it appropriate that you exercise Delegation Q10 and retire him from the Service. I would appreciate your earliest advice on this matter." Arrangements were made for Mr Reid to be seen by a Commonwealth Medical Officer, Dr D Bruce, and by a consultant psychiatrist, Dr DS Bell. Dr Bell had access to Mr Reid's file. at some length, Mr Reid's personal history. His final conclusion was as follows: "The behaviour and manner of the patient at present together with the history he has given clearly indicate he has chronic paranoid schizophrenia. I have advised him that he should seek treatment, but I did not tell him what I think is my diagnosis. Putting together his presentation and the work record described in the file, it is clear that he is not fit for continued employment as Clerk Class 1." - Dr Bell's report was forwarded to Dr Bruce who completed a form entitled "Medical examination for continued employment or retirement on invalidity grounds". In that ae ' esse eee moe ¥ ay ee ) cod ¢ Tor ae ona oee sy eae In his report dated 28 September 1984 Dr Bell reviewed, ' document, by ticking appropriate boxes, Dr Bruce certified his opinion that Mr Reid was "unfit for continued employment and ae ne ke should be retired on the grounds of invalidity"; but that he "may in due course, partially or completely recover and become fit for some form of Commonwealth employment". Dr Bruce added in his own handwriting the words "Review in one year". Dr Bruce's report was considered by a Commonwealth Medical Officer, attached to the Department of Health, who concurred. By letter dated 11 December 1984, written in the name of the State Manager of Telecom and delivered to him on 19 December 1984, Mr Reid was informed of his fate: "Pollowing an examination of your medical evidence by the Commonwealth Medical Officer your retirement of the ground of invalidity has been recommended. Retirement action has now been commenced and following an audit of your leave cards you will be contacted regarding the nomination of a retirement date. Should you wish to appeal against the decision of the Commission you should submit an appeal in writing to the Chairman, Promotions Appeal Board, Box 1634 GPO Sydney, which must be received within 14 days of the date of receipt of this notice. Your appeal statement should give details of the medical reasons why you consider you should not be retired and if possible should be supported by medical evidence from your own doctor," Mr Reid ceased work on 3 January 1985. Mr Reid did elect to appeal against the Commission's decision. On 20 December 1984 he forwarded a letter of appeal to the Chairman of the Promotions Appeal Board. He followed this with a further letter on 24 December. This letter sought particulars of the reasons for Telecom's decision. SPN NT Bott ne Pn Pe worst = peel Chairman of the Promotions Appeal Board to Mr Reid. On 7 January 1985 a letter was sent on behalf of the letter included the following information: "The Review Tribunal which will consider your application will consist of a Chairman, being a person who holds a statutory office of Chairman of a Promotions Appeal Board (1.e. he is not employed by the Commission), an officer nominated by the Commission and an officer nominated by the Australian Clerical Officers' Association. I have written to the Commission seeking a statement of its reasons for the decision that you be retired on the ground of invalidity. When the statement is received, the Tribunal will likely wish to discuss the matter with you and I will get in touch with you in order to arrange a convenient date and time. The discussion will be quite informal and you may be assured that the members of the Tribunal will wish to give you all assistance un putting your side of the matter. Please do not hesitate to get in touch with me if you need any further information." The Mr Reid requested the supply to him of all relevant medical reports; and, in the meantime, that the hearing by the Tribunal be deferred. During February and March 1985 these reports were supplied to Mr Reid, some directly and some through his own medical adviser. On 21 March 1985 Mr G Johnston, the Office Manager of the Review Tribunal, telephoned Mr Reid to check whether he had yet received all of the medical reports. He replied that he now had all of the reports and he discussed with the Office Manager how he might best present his case. Upon the following day Mr Reid rang back to say that he had decided to document his case point-by-point. He said that this would take him some time and that he would ring again when he was ready to proceed. On 21 May 1985 Mr Johnston had a further telephone conversation with Mr Reid, who stated that his written submission was nearly finished and that he hoped to have it typed "within a few weeks". He said that he would "drop it in" when it was ready. On 23 July 1985 Mr Johnston wrote to Mr Reid a letter in these terms: "I refer to your application for a review of the decision made by Telecom Australia to retire you from the service, under Section 56 of the Telecommunications Act, on the ground of invalidity. You will, no doubt, recall that I spoke to you by telephone last on 21 May, 1985, concerning your attendance at a personal interview before a Review Tribunal. At that time you requested a further delay in order that you might be able to properly document your case. As it is now some seven months since you lodged your application I would appreciate your advice as to when you might expect to be able to proceed." Mr Reid responded on 2 August 1985, stating that he still required "at least two more months to finalise my documentation". Mr Reid's document did not arrive within two months. A memo shows that, on 8 October 1985, Mr Johnston's successor as Office Manager spoke to Mr D H Guilfoyle, the Chairman of akg were ieee, "hee i eh onan the Promotions Appeal Board and the first of the second respondents herein, about the delay which was occurring. Mr Guilfoyle advised that "we should not proceed to chase up Mr Reid until 1 November, and then a 'softly softly' approach". On 11 November 1985 the Office Manager wrote to Mr Reid. He pointed out that it was now three months since Mr Reid's letter "and it 1s now some ten months since you lodged your application". He sought advice "as to when you might expect to be able to proceed with your case". There was no response to this letter. On 6 May 1986, the Office Manager wrote a further letter, pointing out the time which had by then elapsed and seeking information "as to when you might expect to be able to proceed with your case". This time Mr Reid replied, by a letter dated 9 May 1986, with which he enclosed a lengthy statement dealing with his employment history. Notwithstanding the receipt of Mr Reid's long awaited statement, the Review Tribunal did not immediately meet to consider his case. The reason was that, on 9 January 1986, Burchett J had handed down a decision in this Court, Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52, in which he held, amongst other things, that those provisions of the Telecommunications Regulations which provided that a decision of the Review Tribunal should be merely recommendatory, rather than determinative, were invalid. Telecom appealed against that decision. On 12 March 1986, the —— Sos Senior Chairman of the Promotions Appeal Board issued an instruction to all Chairmen to suspend until further notice the hearing of Telecom reviews. Telecom's appeal to the Full Court was ultimately determined on 30 July 1986, the Full Court overruling that part of his Honour's decision which concerned the validity of the regulations: see 12 FCR 395. In the event, the Review Tribunal first met to consider Mr Reid's case upon 25 September 1986. The Commission's file was made available to the members of the Tribunal. The file was read by Mr Guilfoyle, at least, a few days before 25 September. At the meeting the members of the Review Tribunal discussed amongst themselves the procedure they should adopt. The Review Tribunal met again on 21 October 1986. In the meantime the members of the Review Tribunal each read Mr Reid's statement. They found difficulty in dealing with it, regarding it as a "disoriented view" of the events leading to Telecom's decision. Accordingly, prior to the meeting of 21 October the members of the Review Tribunal agreed to "make every effort to elicit from (Mr Reid) ... material which would advance his case". Mr Reid's statement is in evidence. [It is difficult to follow. we yt ree eran ne ce ca wore oe cs ve ye re oe eo re ee 10. Mr Reid was accompanied to the meeting of 21 October by a union representative, who acted as his adviser. In his affidavit, Mr Guilfoyle sets out a detailed account of the proceedings at that meeting. It is not necessary for me to repeat the whole of that material, the accuracy of which has not been challenged. According to that account, Mr Guilfoyle clearly explained to Mr Reid the nature of the Review Tribunal's function and invited him to put before the Review Tribunal his reasons for thinking that he should not be retired. Mr Reid replied, dealing at some length with the medical reports. Mr Guilfoyle told Mr Reid that the Review Tribunal needed to take account of any improvement in his medical condition since the decision to retire. He mentioned the Colpitts decision, in which Burchett J -- at p.69 -- had affirmed the duty of the Review Tribunal to consider the facts as at the date of the hearing by 1t. Mr Reid responded that only the decision made by Telecom in December 1984 should be reviewed, that nothing after that event was relevant. At that point the union representative indicated to Mr Reid that he would like to confer with him privately. The two men went outside the room for about ten minutes but, on their return, Mr Reid re-affirmed his position. Mr Guilfoyle again drew Mr Reid's attention to Colpitts. He invited Mr Reid to reconsider his attitude to an up to date medical report. In the meantime he invited Mr Reid to provide the names of some referees "who might speak for you in terms of your efficiency when you worked with Telecom". Mr Reid mentioned seven people. eo wep ere eprenenece = nein tated al erocee aay fort arate lahacuaeanr ancien beams tiianiecanetand 1l. The Review Tribunal did not immediately decide the appeal. The members set about contacting the people named as referees. Contact was made with five of them. The evidence does not disclose what they said but Mr Guilfoyle deposed that, from their responses, the members of the Review Tribunal "formed the opinion that the applicant's condition for a considerable amount of time prior to his retirement was consistent with the evidence contained in the medical reports provided by the Commission to the Review Tribunal". Mr Guilfoyle sought legal advice on one matter, which is not presently relevant. He then made enquiries which satisfied him that Mr Reid did not intend to obtain further medical evidence in support of his appeal. On 10 December 1986 the members of the Review Tribunal met to consider their decision. Mr Guilfoyle said in his affidavit that the members "considered all the material then before us and contained in the annexures hereto, and decided that because much of the referee evidence supported the view that the applicant had suffered from a serious behavioural disorder during his employment with Telecom, and because the written evidence of medical opinion and the applicant's own supporting statements were consistent with this impression, the applicant was below the minimum standard of fitness to work in any position within the Commission". In the result the Commission decided that "there was no alternative but to retire the applicant from the employment of the Commission", 12. Mr Reid was notified of this decision by letter dated 12 December 1986. On 8 January 1987 he wrote to Mr Guilfoyle seeking a statement of the Review Tribunal''s reasons, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977. Those reasons were supplied on 18 February 1987. On 24 March 1987 the present proceeding was commenced. As mentioned, the applicant challenges the decisions of both Telecom and the Review Tribunal. [In connection with the decision of Telecom four grounds are advanced: that there was no evidence or other material to justify the making of the decision -- see s.5(1)(h) of the Administrative Decisions (Judicial Review) Act -- that the decision was an exercise of a power in a manner so unreasonable that no reasonable person could have so exercised the power -- see s.5(1)(e) and s.5(2)(g) -- that the decision involved an error of law -- see s.5(1)(£) -- and that a breach of the rules of natural justice occurred in connection with the making of the decision -- see s.5(1)(a). The first three grounds of attack upon Telecom's decision may be quickly dealt with. They are quite untenable. As to the first two, there was an abundance of material before Telecom in December 1984 to indicate that Mr Reid was not capable of efficiently discharging his duties. The Commission's file shows that efforts had been made over a number of years to create for him an optimum working environment; both by selecting a task, and an office, in + pee oe, eo 13. which he would suffer a minimum of stress and by providing for him sympathetic and supportive supervisors. Despite these efforts, his level of productivity was unacceptably low. Even so, Telecom did not make an immediate decision to retire Mr Reid. Arrangements were made for a medical assessment of his case, not only by a Commonwealth Medical Officer but also by a consultant psychiatrist. Their opinions supported the view that Mr Reid was not fit for his job. There was no evidence to the contrary. The error of law ascribed to the Commission is that it failed to appreciate that under the Telecommunications Act, it had a duty to consider alternatives to the retirement of an officer who was incapable of discharging the duties of his position. Section 56{1) of the Act provides: "56. (1) If an officer appears to the Commission to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties of his position, the Commission may-- (a) transfer him to another position having the same classification as the position held (whether in the same or a different locality); (b) reduce him to a lower position and salary; or (c) retire him from the Service. I agree that Telecom is under a duty to consider alternatives to the retirement of an officer falling within the description contained in s.56(1). But there is nothing in the evidence to suggest that any officer of Telecom dealing with Mr Reid's case was unaware of the provisions of this soos wren tee woot 14. sub-section or, in particular, the alternatives to retirement set out in paras.(a) and (b). It is true that the Commission's file does not suggest that, in the period leading up to the decision to retire Mr Reid, any consideration was given to transferring him to another position or to reducing him to a lower position or salary. But he had already been transferred, in order to allow him a fresh start, on two occasions; most recently in January 1984. And his classification as a clerk was at the lowest grade. It is true, as counsel pointed out, that the relevant officers do not appear to have considered whether Mr Reid could have been redeployed as a storeman or a labourer. However, there is no reason to believe that this was because of any error of law. As to the remaining ground, natural justice, the position is equally clear cut; this time in the opposite direction. Clearly, Telecom had an obligation to give to Mr Reid notice, and an opportunity to be heard, before terminating his employment. The case is covered by the principle adopted in Ridge v_ Baldwin [1964] Ac 40 and applied in numerous decisions since that time. It is sufficient to refer to Kioa v West (1985) 159 CLR 550 and to the comments of Burchett J, in Colpitts at 9 FCR 64-67, relating to the need for Telecom to give notice to an employee before departing, adversely to him, from a recommendation of a Review Tribunal. Povey ee woes 15. The circumstance that the Telecommunications Regulations gave to Mr Reid a right to seek review of the decision of Telecom did not exclude the obligation of Telecom to give natural justice: see Twist v Randwick Municipal Council (1976) 136 CLR 106 and R_v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation (1981) 147 CLR 471 and the discussion of the relevant passages in those cases in Marine Hull and Liability Insurance Co Limited v Hurford (1985) 10 FCR 234 at pp.242~247. Equally clearly, Telecom failed to discharge its obligation towards Mr Reid. Mr Reid was informed neither of the fact that his forced retirement was under consideration nor of the material upon which that consideration was based. There was a clear breach of the rules of natural justice. A question arises as to the consequences of that breach, having regard to the existence of a right of appeal to the Review Tribunal and the exercise by Mr Reid of that right. Under some circumstances, a statutory right of appeal will have the effect of excluding other means of challenging a decision made in denial of natural justice. Twist was such a case. But it is an essential pre-condition of any such exclusion that the right of appeal provided by the statute be a full right of appeal to a tribunal authorised itself finally to dispose of the matter. Although there was some variation in the language used by the three members of the High Court who decided Twist, there was a common emphasis upon the comprehensive nature of the appeal right which there existed. nw Re ee ww ents (wm eee . 7357 wrt Sty, tO oo wort cree ee ee eee 16. In Colpitts, at p.65, Burchett J held that, upon the assumption that the regulations validly limited the remedy given to a person affected by a decision under s.56 of the Telecommunications Act to review by a tribunal with merely recommendatory powers, as the Full Court subsequently held, the principle applied in Twist was inapplicable to a decision made by Telecom under that section. His Honour was of the opinion that such a review was not, to use the language of Mason J in Twist at p.113, "a full and comprehensive appeal". I respectfully agree. It cannot be said that Mr Reid's entitlement to have his forced retirement reviewed by a Review Tribunal excludes the jurisdiction of this Court to grant appropriate relief, under the Administrative Decisions (Judicial Review) Act, in connection with the decision made by Telecom. In the present case there not merely existed a right of appeal. Advantage was taken of that right and Mr Reid's case was considered by a Review Tribunal. Under some circumstances the exercise of a right of appeal might have the result of "curing" a defect in the initial decision. This question was considered, in the present context, by Burchett J in Colpitts at pp.65-67. His Honour there dealt with the authorities -- especially the leading case, Calvin v Carr [1980] AC 574 -- before concluding that the doctrine of "curing" also depended upon the second decision being made by a tribunal after a full hearing, and with power itself to sore cree ae earey ce pees epee ae 17. determine the matter. The "impotence" of the Review Tribunal, to borrow the description used by Burchett J, excluded the view that a defect in the original decision was "cured" by the subsequent decision of the Review Tribunal. The view expressed by Burchett J upon this matter escaped criticism in the Full Court. It 1s a view with which I respectfully agree. A decision whose implementation depends upon the concurrence of the body who made the primary decision runs the risk of being rejected for reasons affected by the initial defect. It follows from the conclusions I have expressed that the failure of Telecom to accord natural justice constitutes a defect in its decision to retire Mr Reid enabling the Court to declare that decision to be invalid in law and to grant other appropriate relief pursuant to the Administrative Decisions (Judicial Review) Act. Whether, as a matter of discretion, the Court should take those steps 1s a question to be considered in the light of the whole of the circumstances. It is a subject to which I will return after considering the challenge made by the applicant to the decision of the Review Tribunal. The applicant advances only one ground of attack upon the Review Tribunal's decision: denial of natural justice. But his argument has two limbs. First, it is said that the Review Tribunal denied natural justice because it failed to inform Mr Reid of the substance of the information conveyed to its members by the five referees whom it had contacted. It is a ' ' ' ' t 18. said that natural justice required that Mr Reid be informed of any matter unfavourable to him, which had been advanced by a referee, in order that he might have the opportunity to answer it. I do not think that this submission represents a correct analysis of the position. The right of a person in Mr Reid's position is "to know the case sought to be made against him and to be given an opportunity of replying to it": see per Mason J in Kioa at p.582. Telecom sought to make a case against Mr Reid, contending that he was unfit for continued service and, in support of that contention, relying upon his work history, as recorded in its relevant file. That was the case of which notice had to be given. But he was apprised of that case. As early as February 1985, Telecom supplied Mr Reid with a copy of his file; excepting only some medical reports which were supplied during the following month. Mr Reid had an ample opportunity to consider this information and to determine how best to meet 1t at the hearing before the Review Tribunal. The additional information obtained by the members of the Review Tribunal from the referees was not part of the case made against Mr Reid by Telecom. That information arose out of his own case. Mr Reid's case before the Review Tribunal was that he was fit to work. He refused to consent to a further medical examination, so as to provide more recent information than that obtained in 1984. But he challenged the 1984 medical assessments, claiming that they were inconsistent with his actual work performance. He had brought to the Tribunal hearing no evidence as to his work performance. So a 19. the members of the Tribunal, in an apparent endeavour to ensure that they had the benefit of whatever information Mr Reid wished them to have, offered to attempt to contact any referees he might mention. He named seven people. [Ina sense, he was naming them as witnesses on his behalf. It was implicit in his naming these people that he wished the members of the Tribunal to take into account whatever relevant information they might give. The second complaint, in relation to alleged denial of natural justice, 1s that the members of the Tribunal failed to inform Mr Reid of their tentative view that the decision of Telecom was justified and to urge him once again to have a further medical examination. As I understand the argument, it is said that the Review Tribunal should not have proceeded to an ummediate decision on 10 December 1986. Rather, the members finding that they were of one mind -- upon the basis of the material before them -- on the justification of the retirement, the Review Tribunal should have warned Mr Reid of their likely finding, if the evidence remained as it was, and should have again suggested that he have a further medical examination. This submission is unsound. The members of the Review Tribunal had gone to some trouble on 21 October 1986 to persuade Mr Reid to have a further medical examination. He repeatedly refused, contending that his current medical condition was not a relevant matter for the Review Tribunal's consideration; and this despite the fact that the Chairman eur emer aa wey mee 20. took him to the judgment of Burchett J 1n Colpitts where the contrary is made plain. There was no reason for the members of the Review Tribunal to believe that he would be likely to change his mind on that matter. There is no support, either in authority or in reason, for the proposition that the members of the Review Tribunal should have disclosed their tentative view, in order to allow Mr Reid the opportunity then to consider whether he wished to provide fresh information. The adoption of such a principle would lead to absurd results, judicial officers and administrators being repeatedly required to signal their current thinking to the parties and then to await possible fresh evidence. The process of decision-making would become intolerably protracted. There is no basis for the complaint that the Review Tribunal failed to accord to Mr Reid natural justice. On the contrary, it appears to me that the members, and staff, of the Review Tribunal handled a difficult appeal not only with complete fairness, but with sympathy towards Mr Reid and a determination to do whatever they might properly do to ensure that his case was put at its highest. In the light of the above findings, I return to the question of the appropriate course to be taken by the Court. The powers given to this Court to make declarations of right and orders are discretionary powers: see ss.21 and 23 of the Federal Court of Australia Act 1976. Section 16 of the ee oe e we ee eee eee eg 21. Administrative Decisions (Judicial Review) Act specifically states that the powers referred to in that section, being the powers to grant final relief under that Act, are powers conferred upon the Court "in its discretion". In a case where a person has lost his or her employment as a result of a decision made in breach of the obligation to afford natural justice it will ordinarily be appropriate to set aside the decision and to require the employer to reconsider the matter. It may be that the employer, upon reconsideration, would make the same decision as before; but that is not a sufficient answer to the argument that the order should be made. It is itself a matter of importance that decisions made by persons exercising statutory authority be made in accordance with the law; and this particularly in cases where individual interests are adversely affected. However, there are additional features of the present case which warrant some consideration. The resolution of this matter has been very considerably delayed, not least by the applicant who took 14 months -- after the receipt by him of the last of the Telecom documents -- to submit his statement to the Review Tribunal. Delay is particularly undesirable in cases involving employment; most obviously from the point of view of the employee but also from the point of view of the employer, who needs to be able to make definite decisions regarding personnel. It is now over three years since Mr Reid left Telecom. This break in his experience is not likely to make it any easier to find a suitable location for him. wa eee = wet erie een ee 7 Mr 22. However, extensive though the delay is, I do not determine the question of discretion by reference solely to that matter. Although, 1n my view, the hearing by the Review Tribunal does not, as a matter of law, expunge the defect in the original decision, the review by that Tribunal 1s a matter to be taken into account in considering whether, as a matter of discretion, it is appropriate now to order Telecom to reconsider the matter of Mr Reid's retirement. The fact is that the Review Tribunal has addressed that question, in a full and sympathetic way. The effect of an order requiring Telecom to reconsider its original decision would be to ask it merely to duplicate the work done by the Review Tribunal. If there were reason to believe that a Telecom reconsideration would take in material not considered by the Review Tribunal, there would be a strong case -- despite the delay which has occurred -~ in ordering a reconsideration. But that is not the case. The only conceivable further information would be more recent medical information. But Mr Reid has consistently taken the attitude that he will not submit to any further medical examination. As I understand the situation, that is still his position. Nobody can force him to co-operate in a further examination. If there was any reason to believe that, upon the same material as was considered by the Review Tribunal, Telecom, in reconsideration, might take a different view, this would furnish a reason for ordering a reconsideration. As counsel for the applicant says, Mr Reid was entitled to two chances of a favourable decision, not one. o ' l ; § : re wee Hee eee ee 23. But it is not possible to imagine that, upon the material before the Review Tribunal, any decision other than retirement could responsibly be made. Under these circumstances, to order a reconsideration of the decision made by Telecom in December 1984 would be to impose upon it a pointless task. The Court should decline to take that step. It follows that the Application should be dismissed. There should be no order as to costs. The applicant has been unsuccessful and should not receive his costs. On the other hand his failure is on discretionary grounds and he did make out one of his grounds of challenge to the relevant decisions. He ought not to be ordered to pay Telecom's costs. I certify this and the twenty-two (22) preceding pages to be a true copy of the Reasons for Judgment of his Honour Justice Wilcox. Associate: [orn forte Date: 3 February 1988 Counsel for the Applicant: Mr J W Nolan Solicitors for the Applicant: AO Ellison & Co Counsel for the Respondent: Mr R C Cogswell Solicitors for the Respondent: Australian Government Solicitor Date(s) of hearing: 26 November and 8 December 1987 = te pao - ape mone fi oo = a — tory eo. . ee . 4 ¢ Be re te