IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 749 of 1997 BETWEEN: EDWARD JOHN REGAN Applicant AND: AUSTRALIAN PROTECTIVE SERVICE, ATTORNEY GENERAL'S DEPARTMENT First Respondent DISCIPLINARY APPEAL COMMITTEE CONSTITUTED BY MR BORIS BUDAK, CONVENOR, MR LARRY GOODALL, MEMBER, MS MIRIAM WILLIAMSON, MEMBER Second Respondent JUDGE: LINDGREN J DATE OF ORDER: 13 AUGUST 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Australian Protective Service, Attorney General's Department cease to be a party and that the Commonwealth of Australia be added as first respondent in its place. 2. The application be dismissed. 3. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 749 of 1997 BETWEEN: EDWARD JOHN REGAN Applicant AND: AUSTRALIAN PROTECTIVE SERVICE, ATTORNEY GENERAL'S DEPARTMENT First Respondent DISCIPLINARY APPEAL COMMITTEE CONStiTuted BY MR BORIS BUDAK, CONVENOR, MR LARRY GOODALL, MEMBER, MS MIRIAM WILLIAMSON, MEMBER Second Respondent JUDGE: LINDGREN J DATE: 13 AUGUST 1998 PLACE: SYDNEY REASONS FOR JUDGMENT (ex tempore) INTRODUCTION There is before the Court an application for judicial review of a decision of the second respondent ("the Committee") under the Administrative Decisions (Judicial Review) Act 1977 (Com) on the ground provided for in s 5 (1) (a) of the Act, that is, "that a breach of the rules of natural justice occurred in connection with the making of the decision". The Committee filed an appearance submitting to such order as the Court might make save as to costs. GENERAL BACKGROUND At all material times the applicant ("Mr Regan") was an Australian Protective Service Officer Grade 1 ("APSO 1") employed by the first respondent ("APS"). (I questioned the legal status of the APS, and, by consent, ordered that the APS cease to be a party and that the Commonwealth of Australia be added as second respondent in its place, but I will continue to refer to the first respondent as "the APS".) He has been so employed since 1990. On 6 November 1996, Mr Regan escorted an unlawful non-citizen from the Villawood Detention Centre to the surgery of a Dr Derricott at Marrickville for a medical appointment. The individual escaped from custody. As a result, four disciplinary charges were brought against Mr Regan. An inquiry was conducted within the APS by Inquiry Officer Alan K Porter. On 28 May 1997, he found all four charges proved. A penalty was imposed on Mr Regan. The penalty was reduction of salary level from point 5 to point 2 within the APSO 1 salary range for a minimum period of 12 months, with any subsequent advancement from that salary level to higher salary points within that salary range according to the normal process. Mr Regan applied for review of the decision to a disciplinary appeal committee to be established by the Merit Protection Review Agency ("the Agency") under the Merit Protection (Australian Government Employees) Act 1984 (Com) ("the Act"). For that purpose, the Agency established the Committee. It is the review by the Committee with which the present proceeding is concerned. Neither counsel addressed submissions to the detail of the legislation, and the case has been treated on both sides as one to be decided on the natural justice ground advanced by Mr Regan. The Committee conducted a hearing on 16 and 17 July 1997. Mr Regan was represented on the first day by his brother James Regan ("Mr James Regan") who unsuccessfully applied for an adjournment. Mr Regan was present with his brother on the second day. The Committee substituted for the decision of the Inquiry Officer a decision that Mr Regan's salary be reduced from point 5 to point 3 of the APSO 1 salary range for a period of 12 months, and, after that period, be increased to point 4 of that range. Accordingly, Mr Regan succeeded before the Committee, but not to the extent that he would have wished: his salary was still reduced to less than its previous level of point 5. Mr Regan commenced this proceeding on 12 September 1997. There are two bases of the natural justice ground on which he relies. The first is the refusal of the adjournment. The second is reasonable apprehension of bias. The case of reasonable apprehension of bias is itself divided into two evidentiary limbs. The first limb depends upon a conversation which took place between the Convenor of the Committee, Mr Budak, and Mr James Regan. The second limb depends upon certain conduct of a Mr Allen, an officer of the APS who was present at the hearing, and Mr M. Allatt of the Australian Government Solicitor's Office ("the AGS"), who appeared at the hearing for the APS. The grounds to which I have referred require me to consider certain correspondence which preceded the hearing and certain events which occurred at that hearing. There is no transcript of the hearing in evidence. Before dealing with either of these areas of evidence, however, I will refer briefly to what Mr Regan has said in his affidavit sworn 12 March 1998. He states that if an adjournment had been granted, he would have wished to submit to the Committee that the Inquiry Officer, Mr Porter, had overlooked a distinction between persons who are in "administrative detention" and persons who are to be deported. He claims that a person who is in administrative detention, as was the person being escorted by him to the doctor's surgery, has committed no crime and is awaiting determination of an application to be recognised as a refugee. He asserts that in the case of such persons, the emphasis is upon preserving their dignity and personal liberty. By contrast, he contends that in the case of persons who are awaiting deportation, "a more rigid regime of detention is in place". He suggests that Mr Porter treated the case as belonging to the second category rather than the first. No doubt he claims that if Mr Porter had treated the case as belonging to the first category, his approach to penalty would or might have been different, and that if Mr Regan's present submission had been made to the Committee, its own decision would have been more favourable to him. I do not understand, however, why the submission was not put to the Committee on the second day of the hearing when Mr Regan was present. Moreover, Mr Regan and his brother Mr James Regan live at the same address, and I am satisfied, as will appear below, that Mr Regan authorised his brother to represent him on the hearing before the Committee. I am not satisfied the submission is one which Mr James Regan was not equipped to make. These considerations are not, however, decisive of the present case. OUTLINE OF PARTIES' SUBMISSIONS The APS submits that Mr Regan chose not to attend the hearing, preferring, for reward, to escort certain persons to China in the period 13 to 16 July; that he knew that the hearing was to take place on 16 July and, if necessary, on 17 July; that he had authorised Mr James Regan to represent him at a hearing on the merits and not just for the purpose of seeking an adjournment; and that, having deliberately taken that course, he cannot now be heard to complain that there were matters that could have been put on his behalf in the course of the hearing. The APS further submits that the incidents at the hearing on which Mr Regan relies do not establish a reasonable apprehension of bias. Mr Regan, on the other hand, submits that his understanding was that his brother would merely apply for an adjournment; that his brother was, unexpectedly, placed in the situation of having to conduct the substantive hearing without the benefit of legal assistance; and that this placed Mr Regan at a disadvantage vis ŕ vis the other party. In addition, in oral evidence, but not in his affidavit, Mr Regan asserts that the Agency told him that his case would be adjourned on 16 July. Finally, he submits that the test of reasonable apprehension of bias is satisfied by the events which occurred at the hearing. THE EVIDENCE On 17 June 1997, the Agency wrote to Mr Regan, advising that the Convenor of the Committee, Mr Budak, had determined that Mr Regan's appeal would be scheduled for hearing to commence at 10 am on Wednesday 16 July and to continue on Thursday 17 July, if necessary. On 25 June, the Agency wrote to Mr Regan, advising that it had received advice from the Department indicating that Mr Regan had been "mischarged" in relation to misconduct. The letter stated that the Agency was further advised that the APS would "re-issue the charges at a later date". The letter went on to say that the appeal hearing scheduled for 16 and 17 July had therefore "lapsed" and that the Agency would take no further action in relation to the matter at that stage. Two days later, on 27 June, the Agency again wrote to Mr Regan, advising that the appeal hearing would proceed on Wednesday 16 July as per the original letter of 17 June, and that the hearing would continue on Thursday 17 July, if required. The letter continued as follows: "By way of explanation, I received advice from your department that the charges laid against you did not show the full legislative basis and pathway by which it is alleged that you failed to fulfil your duty as an officer. Furthermore, the department informed me that the defective charges would be withdrawn and that new charges would be issued. "According to advice received yesterday from Mr Murray Allatt, Australian Government Solicitor, the department will now seek to redress the defects by direct application to the Disciplinary Appeal Committee (DAC), and that this action will not in any way prejudice your appeal. Mr Boris Budak, DAC Convenor, has therefore reinstated the hearing days." It is clear, in my view, that from 27 June, or at least the date shortly afterwards when Mr Regan received the Agency's letter of that date, he knew that a full hearing on the merits was re-scheduled for 16 July, and, if necessary, 17 July as well. On Monday 7 July, Mr Regan wrote to Mr Michael Corke of the Agency, referring to earlier correspondence and to what Mr Regan described as the "on, off, on again charade of the Australian Protective Service in this matter". He continued by advising that he would be "unable to properly brief [his] legal representatives to the extent of the mischief of the APS case prior to 16 July 1997" and that "[a]ccordingly, it [was] requested that the matter be set down for 'mention only' on this date". Mr Regan repeated this request, that is, that the matter be listed for mention only, in the last paragraph of his letter. But while Mr Regan was making this request, he was involved in another sequence of events. This is adequately indicated by a facsimile memo dated 8 July from the Attorney-General's Department to the Department of Immigration and Multicultural Affairs, headed "Details of APS Officers for Escort to China". The memo shows, relevantly, that Mr Regan was scheduled to travel from Sydney on Sunday 13 July 1997 at 6.45 pm and to return at 3.45 pm on Wednesday 16 July 1997, in order to participate in the escort of certain individuals to China. The evidence shows that the amount to be paid to Mr Regan for this work was of the order of $3000. The relevance of this evidence is that Mr Regan knew from on or about 7 July that his election to make himself available, for remuneration, to escort persons from Australia, had been accepted. There was evidence given by Peter John Phillips, an officer of the APS, as to the procedure adopted for selecting officers to act as escorts. Shortly, his evidence is that a person is not directed or required to travel overseas as an escort officer, and, in substance, that this is an opportunity which is made available for employees at their choice. His affidavit states: "Indeed, I can further say that in my experience it has not been uncommon for selected officers to withdraw themselves from an escort at the last moment, necessitating the allocation to escort duties of other volunteers. The reason for escorts only being drawn from volunteers is to ensure that officers were not disadvantaged in respect of family and other commitments." I return to the correspondence. On Thursday 10 July, Mr Regan wrote to Mr Corke again advising that he would be "unable to properly brief" his legal representatives in order to be adequately represented before the Committee on 16 and 17 July 1997. His letter went on to refer to a number of persons required by him to attend as witnesses to give evidence. Later on 10 July, Mr Regan again wrote to Mr Corke enclosing four summonses for signature by Mr Budak, the Convenor of the Committee. The letter advised that Mr Regan would arrange for his nominee to collect the original copies of the four summonses from Mr Budak in Canberra, together with further summonses which he yet had to compile, and that these would be faxed to Mr Budak for signature also. At this time, of course, Mr Regan knew that he would be travelling outside Australia from 13 to 16 July. Also on 10 July, the Australian Government Solicitor wrote to Mr Regan advising that the AGS was instructed to proceed with the hearing on 16 July. As well, that letter advised of the witnesses who would be called by the AGS on the hearing before the Committee. On Sunday 13 July, the day scheduled for his departure, Mr Regan wrote to the Agency an important letter, as follows: "I hereby authorise my brother, James Charles Regan to in my absence, act on my behalf in representing my case in preliminary hearing and cross-examination of witnesses to rebut the APS case before the Disciplinary Appeal Committee on Wednesday 16 / Thursday 17 July 1997. The Committee should note that I have withdrawn my instructions from Mr Alex Tees of Remington & Co, Solicitors. In the time available, I have been unable to brief another solicitor. Should the Appeal run beyond the above dates and canvass the issues which I believe it should, I will certainly brief another solicitor and counsel as necessary. I further authorise James to request the Convenor to issue the four summonses faxed to the MPRA on Thursday 10 July 1997 and the further 15 summonses drafted Friday 11 and Sunday 13 July 1997, and such other summonses as he may consider relevant to these proceedings." It now becomes possible for me to turn to the events at the hearing. These are deposed to in an affidavit of Mr James Regan sworn 8 April 1998. First, Mr James Regan states that he requested an adjournment on two grounds: Mr Regan's inability to attend the hearing as he had been "rostered" for duty returning deported persons to China; and, secondly, the desire to enable Mr Regan to seek proper legal assistance as conveyed in Mr Regan's letters dated 7, 10 and 13 July. The request for an adjournment was, as I have mentioned, refused. According to the affidavit, late in the afternoon of the first day, Mr James Regan requested the Convenor to issue summonses for various APS officers to attend the hearing for the purpose of cross-examination. One of those was the Inquiry Officer, Mr Porter. According to the affidavit, Mr Budak said, "I don't think that will be necessary". Nothing was made of this on the present hearing. On Thursday, 17 July, Mr James Regan again attended the hearing, this time with Mr Regan, who had returned from his escort trip. Apparently there was a further request for an adjournment in order to enable legal advice and representation to be sought and the application for the adjournment was again rejected. Mr James Regan continued to conduct Mr Regan's case before the Committee. I turn now to the first matter supporting the case of bias. This relates to a conversation during an early break in proceedings on the second day, apparently at the morning tea adjournment, as Mr James Regan came back to the bar table to collect notes. According to Mr James Regan's affidavit, the Convenor, Mr Budak, spoke to him adjacent to the bar table, and, after general conversation, said: "… your brother can continue to fight on ... accepting a reduction in increment [sic – decrement] would be a lot less costly than (the legal expense) of an appeal to the Federal Court." Mr James Regan continues by saying that as a result of the conversation he formed the view that Mr Budak had already made up his mind, even though the evidence had not been concluded. I turn to the second matter said to support the case of bias. As indicated earlier, this arises out of the conduct of Mr Allen of the APS and Mr Allatt of the AGS. Mr James Regan's evidence is that he observed the two men "make mocking gestures between themselves as [his] brother gave his evidence". It is complained that the Committee did not call them to order in relation to this conduct. Mr James Regan also states that the conduct of the two men distracted and hindered him in the proper presentation of Mr Regan's case. He states that throughout the afternoon, as he attempted to summarise Mr Regan's case, he was conscious from time to time that Messrs Allen and Allatt were "sniggering, nudging each other … and generally mocking my efforts to properly represent [Mr Regan] before the Committee". He states that he formed the opinion that the Committee was not seriously engaged in properly determining the matter. Both of the Messrs Regan were cross-examined before me. REASONING The refusal of the adjournment was an exercise of discretion by the Committee. On the basis of the correspondence, Mr Regan well understood from 25 June, or shortly afterwards, that the hearing was to proceed on the merits on 16 and 17 July. This is borne out, in particular, by the reference in Mr Regan's letter dated 13 July to the fact that his brother was authorised to cross-examine witnesses. On the evidence, Mr Regan chose not to be present, preferring to take the opportunity of making some extra money from performing escort duties. It emerged in evidence that he had terminated the retainer of a Mr Alex Tees of Remington & Co, Solicitors. He said in cross-examination that he had terminated his retainer of that solicitor "well in advance" of 13 July. The reference in Mr Regan's letter of 13 July to the canvassing of issues which Mr Regan believed should be canvassed by the Committee is a reference to a wide range of issues about which Mr Regan had complained, but which it is accepted, had no relevance to the events surrounding the escape on 6 November 1996 or the level of penalty to be imposed. I am not in a position to say anything as to the merits of those complaints. It is clear, on the evidence, that Mr Regan could have withdrawn his availability to provide the escort services between 13 and 16 July. In my opinion he chose not to do so, preferring to "chance his hand" with respect to an adjournment, but knowing that if one were not granted, his brother would have to conduct the case on his behalf. I do not accept Mr Regan's evidence that in a telephone conversation he was told by someone at the Agency that an adjournment would be granted on 16 July. I accept that he may have been told that his application for an adjournment could be made on that date, but I do not accept that he was given an assurance that his request would be granted. In the result, I do not think that the adjournment ground is made out. I see no reason why the Committee was not entitled to exercise its discretion in the way in which it did in that respect. I turn now to the question of bias. No doubt what is put here is that there was a reasonable apprehension of bias. The leading authorities are Livesey v New South Wales Bar Association (1983) 151 CLR 288; and see the recent discussion and reference to authorities in Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 153 ALR 198 (FCA/FC) at 216. The first matter to be considered is the conversation between Mr Budak and Mr James Regan. I should say at once that in my opinion it was imprudent for Mr Budak to speak to Mr James Regan in private in the sense that what was said was not a part of the hearing. But the question is whether his words might inspire in a fair-minded observer a reasonable apprehension that the Committee might not be able to bring an impartial or unbiased mind to the task at hand. I think that what Mr Budak was attempting to convey is the kind of sentiment which is often expressed from the Bench, that is, that parties can, if they wish, pursue a case to decision with the risk of a loss or a win, or, on the other hand, seek agreement by way of compromise. It is commonly said that if litigation is pursued to a result with the possibility of an appeal, the costs will be so great, and the result is so uncertain, that the parties are well advised to apply their minds to the possibility of a settlement. This kind of statement is made publicly from the Bench every day, and represents, I think, what Mr Budak was trying to convey. His words, it will be recalled, were: "… your brother can continue to fight on ... accepting a reduction in increment [sic - decrement] would be a lot less costly than (the legal expense) of an appeal to the Federal Court." He was suggesting that Mr Regan should consider having a discussion with his employer with a view to agreeing upon some reduction in grade less than that which had already been imposed, in preference to running the case to conclusion, with the possibility, as has eventuated, of an appeal to this Court. As I said, I do not think that Mr Budak should have spoken privately to Mr James Regan, but I do not think that his having done so establishes a case of reasonable apprehension of bias. I turn last to the conduct of Messrs Allen and Allatt. It goes without saying that if conduct of the kind described by Mr James Regan was engaged in, and I note that no evidence has been led to the contrary, it is a matter of regret and a proper subject of criticism. It is important that persons, including litigants in person and persons such as the brothers Regan, should be treated courteously by those who represent an opposing party. In addition, if conduct of the kind deposed to was obvious to the Committee and was persisted in, it was incumbent on the Committee to take steps to bring it to a halt. Similarly, if it was not obvious to the Committee but if Mr Regan complained to the Committee about it, again the Committee should have taken action. But it is not suggested that the Committee was in anyway guilty of, or a party to, conduct of the kind described, and it is not established that the Committee was conscious of the course of conduct described. Sometimes, one observes in a court-room instances of gesture, facial expression, body language and other forms of self-expression or communication, which, unfortunately, do not assist in the administration of justice. But it does not follow that the person presiding, even if aware of what has happened, should intervene whenever such an incident occurs. Questions of degree are involved. Of course, there would come a stage where intervention would be demanded, but it suffices to say in the present case that I am not persuaded that that stage was reached, let alone that the Committee's non-intervention raised a suggestion of bias on its part. Mr James Regan was cross-examined as to his reaction to the conduct of Messrs Allen and Allatt. He said that he was concerned about their conduct. No doubt to some extent such conduct would be a distraction, the more so for him as a person not professionally qualified in an unfamiliar environment. However, I do not think that it prevented him from putting the substance of Mr Regan's case to the Committee. CONCLUSION I am not persuaded that the grounds of review are made out. It follows that the present application should be dismissed. [Submissions were made on costs.] It gives me no pleasure to make a costs order against a person who, possibly, is ill able to satisfy it. But I must exercise the discretion consistently with principle. A proper exercise of discretion, having regard to the fact that the matter has been argued and Mr Regan has lost, is to make the order sought by the respondents. I have no idea whether there will be an attempt to enforce the order; that is a different matter. But I cannot be persuaded by Mr Regan's impecuniosity, or the fact that he has other complaints against the APS which have not been able to be ventilated in this proceeding. Exercising the discretion by reference to matters properly relevant to it and not taking into account irrelevant matters, I think that the appropriate order is that Mr Regan pay the respondents' costs. Therefore, in addition to the order relating to parties mentioned earlier, the orders of the court are: first, that the application be dismissed; and, second, that the applicant pay the respondents' costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren Associate: Dated: 24 August 1998 Counsel for the Applicant: Mr SW Cairns Counsel for the Respondent: Mr BJ Skinner Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 May, 10 August 1998 Date of Judgment: 13 August 1998