JUDGMENT Ho, (40.. 73% eonnesy CATCHWORDS ADMINISTRATIVE LAW ~ Australian Capital Territory Fire Brigade - Application for order to review appointment to act temporarily in a higher rank - eligibility provisions - relevance of conduct and service. WORDS AND PHRASES - Meaning of "eligible for promotion" Fire Brigade (Administration) Ordinance 1974 (A.C.T.), ss.12, 17, 20, 29, 29(2), 30 Fire Brigade (Administration) Regulations. reg.8-14, 16, 17, 19 Administrative Decisions (Judicial Review) Act 1977 On Appeal from_a Single Judge of the Federal Court of Australia ADRIAN PAUL CRUMBLIN Ve WILLIAM MOORE GOULD KERR FIRE COMMISSIONER FENERAL COURT OF } AUSTAM WwW / Y ParaciP™. S REIBTHY a". <i] ae ao oy Y A.C.T. No. G32 of 1987 alpen" Coram: Gallop, Morling and Pincus JJ. Date: 8 April 1988. Canberra. ve IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G32 of 1987 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ADRIAN PAUL CRUMBLIN Appellant AND: WILLIAM MOORE GOULD KERR FIRE COMMISSIONER Respondent ORDER Judges Making Order Gallop, Morling and Pincus JJ. Date of Order 8 April 1988. Where Made Canberra. THE COURT ORDERS THAT: (1) The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. - ae - ee ee "Ry IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G32 of 1987 DISTRICT REGISTRY GENERAL DIVISION . ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ADRIAN PAUL CRUMBLIN Appellant AND: WILLIAM MOORE GOULD KERR FIRE COMMISSIONER Respondent Coram: Gallop, Morling and Pincus JJ. Date: 8 April 1988. REASONS FOR JUDGMENT GALLOP J.: I have read the respective judgments of Morling J. and Pincus J. I agree that the appeal should be dismissed with costs for the reasons set out in their respective judgments. I certify that this and—the IS precedine-pecesaze a true copy of the Reasons for Judgment herein of his Honour Ur. Justice GCailop Srrsd dowry Associate Dated: @™M Apvil \A8% woe eae IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G32 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION , . ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN: ADRIAN PAUL CRUMBLIN Appellant AND: WILLIAM MOORE GOULD KERR FIRE COMMISSIONER Respondent CORAM: GALLOP, MORLING and PINCUS JJ. DATE: 8 APRIL 1988. , REASONS FOR JUDGMENT MORLING J.: The appellant is an officer with the rank of District Officer in the Australian Capital Territory Fire Brigade ("the Brigade"). On 8 August 1986 the respondent, who is the Commissioner of the Brigade, decided to appoint District Officer Bissett to act temporarily in the higher rank of Superintendent. The appellant applied to this Court for a judicial review of the Commissioner's decision. His application was refused and this appeal brought from that refusal. 2. . The appeal raises for decision the ambit of the matters which may be taken into account by the Commissioner when deciding to appoint an officer of the Brigade to act temporarily in a higher rank. The Brigade is established by the Fire Brigade (Administration) Ordinance 1974 (A.C.T.). The Commissioner is, subject to the Ordinance and under the direction of the Minister, charged with the general control and management of the Brigade (s.12). The ranks of officers of the Brigade are Superintendent, District Officer, and Station Officer (s.17). Provision is made by the Ordinance for the appointment of officers and firemen (s.20) and for their promotion to higher rank (s.29). An officer may not be promoted to a rank unless he is eligible in accordance with the regulations for promotion to that rank (s.29(2)). The Commissioner may, from time to time, in accordance with the regulations, appoint an officer to act temporarily in a higher rank (s.30). Pursuant to the regulation~making power in s.81 of the Ordinance the Fire Brigade (Administration) Regulations have been made. Regulation 19 is in the following terms: "19. The Commissioner shall not appoint an officer to act temporarily in a higher rank unless the officer is - (a) eligible for promotion to that rank; and (b) the only officer, or the most senior of the officers, so eligible." 3. The regulations do not provide any criteria for determining the seniority of officers. Regulations 8-14 inclusive make provision with respect to eligibility for promotion of members of the Brigade to higher rank. Regulations 8-12 inclusive relate to promotion to varying categories of firemen. Firemen are not included in the ranks of officer of the Brigade. Provision 1s made for various ranks of firemen in s.18 of the Ordinance. Regulations 13 and 14 respectively make provision for promotion to Station Officer and District Officer. Those regulations are in the following terms: "13. A person is eligible for promotion to the rank of Station Officer if the person nas - (a) held the rank of Senior Fireman for a continuous period of not less than four years; and (b) passed an examination conducted by the Commissioner for the purposes of this regulation. "14, A person is eligible for promotion to the rank of District Officer if the person has passed an examination conducted by the Commissioner for the purpose of this regulation." There is no provision in the regulations for promotion to the rank of Superintendent, nor do the regulations prescribe any criteria of eligibility for promotion to that rank. Regulation 16 provides that notwithstanding the provisions of regs. 8-14 inclusive, the Commissioner is not to promote a member of the Brigade to a higher rank unless the conduct and service of the member are satisfactory. 4. - Both the appellant and Bissett joined the Brigade on 16 January 1976. They were both promoted to the rank of District Officer on 6 July 1978. However the appellant passed examinations for the purposes of reg. 14 before Bissett did. It was common ground before the trial judge that Commissioner made the decision under review on the assumption that the appellant was more senior than Bissett. This assumption seems to have been based upon a seniority list kept by the Commissioner. On that list the name of the appellant was shown above that of Bissett. The reason why the Commissioner did not appoint the appellant to act temporarily as Superintendent was that he was of the view that the appellant was ineligible for promotion to that rank. This view was based on the Commissioner's opinion that the appellant's conduct and service were unsatisfactory. The Commissioner was of the view that Bissett was eligible for promotion to the rank of Superintendent and, being of the opinion that Bissett was the most senior available officer for the duration of the vacancy, he appointed him to act temporarily in that rank. Before the trial judge it was urged on behalf of the appellant that the appointment of Bissett was contrary to law and should be set aside on the ground that the appellant was, at the date of the appointment and within the terms of reg. 19, eligible for promotion to the rank of Superintendent and senior to Bissett. In particular, it was submitted that the 5. Commissioner was not entitled to take into account his view that the conduct and service of the appellant were not satisfactory. The learned trial judge rejected the submission that the Commissioner was not entitled to take into account the conduct and service of the appellant. In my opinion he was correct to do so. Counsel for the appellant submitted that an acting appointment was required to be made in conformity with reg. 19, that the most senior officer who was eligible for promotion to the rank in which the acting appointment was to be made had a right to the acting appointment, and that the only qualification required for eligibility to the rank of superintendent was the holding of the rank of District Officer. I accept the first part of this submission, but I do not accept that a person holding the rank of District Officer must necessarily be regarded as eligible for promotion to the rank of Superintendent. The regulations are not framed as clearly as they might be. There is much to be said ain favour of the proposition that the regulations are so framed as to require that eligibility for promotion to the various ranks of Fireman and to the ranks of Station Officer and District Officer are to be determined only by reference to the particular qualifications applicable to the various ranks as referred to in regs. 8-14 inclusive. This view gains support from the terms of reg. 16. If the conduct and service of a member 15 relevant in determining eligibility for promotion under 6. . regs. 8-14 inclusive, reg. 16 is otiose. On this view of the regulations they proceed upon the basis that even though members of the Brigade may be eligible for promotion they are not to be actually promoted if their conduct and service are unsatisfactory. However, if the regulations are construed in this way there is a serious and unavoidable collision between regs. 16 and 17. Regulation 17 provides as follows: "17. Where more than one person is eligible for promotion to a rank, the Commissioner shall - (a) where each eligible person passed the examination conducted in relation to promotion to that rank at the same time - promote to that rank the more or most senior of those persons; or (b) in any other case - promote to that rank the person who first passed the examination conducted in relation to promotion to that rank." If eligibility for promotion does not depend upon, inter alia, the conduct and service of the member, the Commissioner would be obliged by reg. 17 to promote a member without regard to his conduct and service, but also obliged by reg. 16 not to promote him if his conduct and service were not satisfactory. The only way to avoid this collision is to construe the phrase "eligible for promotion" wherever it appears in the regulations as comprehending matters of conduct and service. Accordingly, I think that reg. 19 must be construed as entitling the Commissioner to take into account an officer's conduct and 7. ' service when considering whether he should be appointed to act temporarily in a higher rank. In practice, the form in which the regulations are drawn will not lead to any different result when the promotion of a member of the Brigade is under consideration. In any such case the satisfactory conduct and service of the member will always be a prerequisite to promotion. Regulation 16 ensures that this is so. For the reasons I have given, I am of the opinion that the appeal should be dismissed. It is unnecessary to determine whether, even if the respondent had been disentitled to consider the appellant's conduct and service, the appellant was a more senior officer than Bissett. However, as we heard argument on that matter it is convenient that I should express an opinion on it. I agree with the learned trial judge that the appellant and Bissett were of equal seniority. They were both appointed to the rank of District Officer on the same day. In my view it is the date of their appointment to that rank which determines their seniority for the purposes of the regulations. It is not to the point that the appellant is treated as being more senior to Bissett on a list kept by the Commissioner. Apparently the reason why the appellant was regarded by the Commissioner as being more senior than Bissett was that the appellant passed the examination referred to in reg. 14 earlier than Bissett did. But the passing of that examination did not alter the seniority of either man. The alteration in their 8. seniority occurred on the date when they were both appointed District Officers, i.e. 6 July 1978. As their appointments took effect on the same day, they are of equal seniority. If a case should arise where two or more officers are of equal seniority and are all eligible for appointment to act temporarily in a higher rank, s.30 of the Ordinance would authorize the Commissioner to appoint one of them under reg. 19. The appeal should be dismissed with costs. I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: WS dort — Date: 8 April +988 aw IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISTON ) AUSTRALIAN CAPITAL TERRITORY ) ) ACT G32 of 1987 ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ADRIAN PAUL CRUMBLIN Appellant AND: WILLIAM MOORE GOULD KERR FIRE COMMISSIONER Respondent CORAM: GALLOP, MORLING & PINCUS JJ. 8 APRIL 1988 REASONS FOR JUDGMENT PINCUS J.: This is an appeal from a judgment dismissing an application made to a single judge of this Court under the Administrative Decisions (Judicial Review) Act 1977. By that application, the appellant sought to attack a decision made on 8 August 1986 by the respondent, the Fire Commissioner appointed under the Fire Brigade (Administration) Ordinance 1974 of the Australian Capital Territory. The decision had the effect of appointing one Bissett to act as a Superintendent of the Australian Capital Territory Fire Brigade from 8 August 1986 till 25 August 1986. The appellant claimed, and still claims, that he, rather than Bissett, was entitled as a matter of law to be so appointed. , . , The appointment in question has, of course, long since expired but we were informed that the parties, before the learned primary judge, agreed on the desirability of his Honour determining the legal questions raised. It appears that the reason for that agreement was that precisely similar appointments have been made since August 1986 and others are likely to be made in the future. Putting the matter simply, the appellant's case was that he was entitled to the temporary appointment in question because he was eligible to take the appointment within the meaning of the relevant regulations, and was senior to Bissett; the respondent challenges both of these assertions. Under the Ordinance mentioned above, the Australian Capital Territory Fire Brigade is established, by s.16, and made to consist of a Commissioner (the respondent) and Brigade members. By amendment adding s.16(2){a), there is provision for a Deputy Commissioner, but that amendment took effect after the events in question in this case. Section 17 says there shall be three ranks of officers, namely Superintendent, District Officer and Station Officer. Section 18 provides for six ranks of firemen of various descriptions. By s.29 the Commissioner is empowered to promote officers and firemen to higher ranks, and under s.30: "The Commissioner may, from time to time, in accordance with the regulations, appoint an officer to act temporarily in a higher rank." Sections 32, 33 and 34 provide for-.appeals against promotions on the ground set out in s.33(1), i.e. "equal efficiency and seniority". That is, a promotion may be upset if an appellant can show that he is senior to and just as efficient as the person originally chosen. There 15 no provision for appeals against temporary appointments made under s.30. Some discussion took place at the hearing as to the effect of the expression "in accordance with the regulations" in s.30. It was eventually conceded that the quoted expression does not convey the idea that the Commissioner may make temporary appointments only if power to do so is given by the regulations; s.30 itself gives the power, but it must be exercised in accordance with any relevant regulations. Corresponding to the provisions in the Ordinance for promotion and temporary appointments, there are similar provisions in the regulations; the latter are made under s.81 of the Ordinance which it is umnecessary to quote. As to promotions, by a provision which fits awkwardly with the promotion appeal provisions of the Act, the Commissioner 1s required to promote the most senior eligible person: regulation 17 reads as follows: "Where more than one person is eligible for promotion to a rank, the Commissioner shall - (a) where each eligible person passed the examination conducted in relation to promotion to that rank at the same time - promote to that rank the more or most senior of those persons; or (b) in any other case -,promote to that rank the person who first passed the examination conducted in relation to promotion to that rank." It will be noted that regulation 17 makes no reference to efficiency, contrasting with the appeal provisions mentioned above. Nor does regulation 19, which reads: "The Commissioner shall not appoint an officer to act temporarily in a higher rank unless the officer is - (a) eligible for promotion to that rank; and (b) the only officer, or the more or most' senior of the officers, so eligible." It is the meaning of the word "eligible" in regulation 19 which is in question, a meaning which, one would think, must be common to regulations 17 and 19. It appeared from the evidence that the decision attacked was made on the basis that eligibility under regulation 19 included, inter alia, satisfactory conduct and service, in consequence of the provisions of regulation 16, reading as follows: "Notwithstanding the provisions of regulations 8 to 14 (inclusive), the Commissioner shall not promote a member to a higher rank unless the conduct and service of the member are satisfactory." The reasons for decision demonstrating that point need not be set out in detail; it is enough to summarize them, so far as relevant to the present issue. When asked for reasons by solicitors for the appellant, the respondent said, that the most senior District Officers in the Bragade were one Donoghgoe, currently acting Superintendent, and one McDonald, on indefinite sick leave; then followed, in order, the appellant and Bissett. The reasons went on to say that the respondent considered the appellant to be ineligible in that his conduct and service were not satisfactory. Bissett, the reasons said, was the most senior of the eligible officers. One of the contentions advanced before the learned primary judge and on appeal was that the word "eligible" in regulation 19 does not encompass the notion of satisfactory conduct and service mentioned in regulation 16. If that is so, then presumably the same applies to regulation 17, giving rise to a direct contradiction. That is, regulation 16 prohibits a promotion "unless the conduct and service of the member are satisfactory", whereas regulation 17(a) positively requires the promotion of the most senior eligible person from a group whose members passed the examination at the same time. A way to avoid that conflict is to read "eligible" in regulation 17 as incorporating the requirement in the immediately preceding regulation. A contrary view, being in effect that advanced on behalf of the appellant, was that eligibility in regulation 19 takes its meaning from regulations 13 and 14, which are as follows: . "13. A person is eligible for promotion to the rank of Station Officer if the person has - (a) held the rank of Senior Fireman for a continuous period of not less than 4 years; and (b) passed an examination conducted by the Commissioner for the purposes of this regulation. 14. A person is eligible for promotion to the rank of District Officer if the person has passed an examination conducted by the Commissioner for the purposes of this regulation." There are similar provisions in regulations 8 to 12 prescribing eligibility for promotion within the ranks of firemen as opposed to officers. The argument just mentioned was rejected by the learned primary judge, who expressed the view that the opening words of regulation 16, namely "Notwithstanding the provisions of regulations 8 to 14 (inclusive)" - ",.. require that the criteria for eligibility prescribed in each of the regulations 8 to 14 (inclusive) be read subject to the further requirement of satisfactory conduct and service." That conclusion was attacked by counsel for the appellant on the basis that it gave the word "eligible" in regulations 13 and 14 a meaning different from that which it bears in regulation 19. The argument is a powerful one, but insufficiently so to overcome the considerations to the contrary. Of these, the most important is that already mentioned, namely that regulation 19 is in the same class as regulation 17; it seems clear that "eligible" in regulation 17 must, to avoid a contradiction of regulation 16, incorporate the qualification prescribed by regulation 16. Secondly, reading eligibility for the purposes of regulations 17 and 19 as requiring the presence of that qualification avoids the rather odd possibility of a compulsory promotion, perhaps to a very high position in the Brigade, of a person whose conduct and service are unsatisfactory. Lastly, an advantage, for the purposes of dealing with the present situation, of the reading of "eligible" adopted by the learned primary judge, is that it gives regulation 19 some _ sensible content with respect to such appointments as the present - i.e. to Acting Superintendent. Regulations 13 and 14 deal only with promotion to Station Officer and District Officer, and there is no similar regulation with respect to promotion to Superintendent. Reading "eligible" as including the qualification prescribed by regulation 16 achieves the result that there is a criterion of eligibility for temporary promotion to Acting Superintendent, on which regulation 19 can operate. A similar consideration applies to permanent promotions under regulation 17. It should be added that counsel for the appellant urged the view that reading regulation 19 as making immaterial the relative merits of possible temporary appointees is not an incongruous result; it was suggested during the course of argument that the Minister who made the regulations might have intended, for the sake of simplicity and industrial harmony, to provide a simple and "automatic" system of filling temporary vacancies. As to that, one can understand a scheme providing for temporary appointments without regard to relative efficiency, that being required to be considered only on appeals against promotions to permanent positions. But it is-less easy to believe that it was intended that the Commissioner might be obliged to appoint (even temporarily) to a higher position a member whose conduct and service were both thought to be quite unsatisfactory; that is by no means the same thing as requiring a fine comparison of relative efficiencies. It therefore appears that the learned primary judge was correct in rejecting the basis of the appellant's attack upon the respondent's decision, i.e. the argument that an officer is "eligible for promotion" within the meaning of regulation 19 although he does not fulfil the requirements of regulation 16. There remains for consideration the question of seniority. It is desirable, 1n view of the intimation by the counsel for the parties referred to above, to express a view about that, although not strictly necessary to do so. The reasons for decision of the respondent assert, in effect, that the appellant was senior to Bissett. The learned primary judge took the view that the two were of equal seniority. It appeared from the evidence that there was in existence a seniority list, hallowed by custom, by reference to which the respondent formed his view about the relative seniorities of the two contenders here in question. Counsel for the appellant made the rather surprising submission that, since the seniority list had attained general acceptance, it must accurately reflect the notion of seniority embodied in the regulations. That is plainly not so; if the reguiations expressly or implicitly require seniority tq be determined on a particular basis, that cannot be varied by mere agreement of the parties interested, or the more influential of them. The learned primary judge expressed the view that seniority depends on length of service in the Brigade. Although we were invited to agree or disagree with that opinion, it would seem to me to be going too far to prescribe a general test of seniority reaching beyond the requirements of the decision in this particular case. Both Bissett and the appellant transferred to the Brigade (from New South Wales) on 16 January 1976 and both attained their substantive rank of District Officer on6 July 1978. Whether one adopts the test of length of service in the Brigade or that of length of service at the current rank, both have the same seniority. It was suggested in argument that one could differentiate between them on the basis that the appellant passed his examination for promotion to District Officer earlier than did Bissett; the former passed in December 1977 and _ the latter in June 1978. However, as the learned primary judge pointed out, the date of passage of the examination cannot be the criterion of seniority; that 15 made clear by regulation 17, quoted above. It is so drawn as to make it impossible to hold that the date of passage of examinations establishes seniority; if that were so, par.(a) of regulation 17 would make no sense. 10. It therefore appears that the learned primary judge was correct in holding that the appellant and Bissett held the same seniority. In that respect, the respondent's reasons for decision were incorrect, but the error was one favourable to the appellant. It should be added that regulation 19 does not deal with the case of two or more eligible officers of equal seniority being available to receive a temporary appointment. It would, however, be absurd to hold that the circumstance that there happened to be two or more such officers would deprive the Commissioner of power to make any temporary appointment. It is necessarily implicit in regulation 19, read against the background of s.30, that in such a case the Commissioner is not prevented from selecting either or any of the eligible officers of equal seniority. To summarise: i. A person is "eligible for promotion" within the meaning of regulation 19 if he fulfils the requirements (if any) of regulation 13 or 14 and his promotion is not prohibited by regulation 16. 2. The respondent took the view that the appellant's conduct and service were not satisfactory within the meaning of regulation 16 and that factual conclusion is not challenged. 3. The respondent therefore had no power to appoint the appellant to act temporarily in a higher rank under regulation 19. il. Bissett (who received the appointment) and the appellant were of equal seniority, since both joined the Brigade on the same day and attained their current rank on the same day. Seniority does not depend upon the dates of passing examinations. If there are two or more officers eligible for promotion, of equal seniority, the Commissioner may appoint either or any to act temporarily in a higher rank under regulation 19. In the result, the appeal must be dismissed and with costs. 3 certify thst ting and the 1O preceding Counsel for the appellant: a t aa Qaore couy of the racccs for judarpent bere.n of His Honour MA Jusiice Piacus A Gra Asseciaie Dated 9 April 19F§ Mr F.J. Purnell Solicitor for the appellant: Pamela Coward § Associates Counsel for the respondent: Mr B. Hungerford Solicitor for the respondent: Australian Government Solicitor Date of hearing: 15 March 1988.