Bohills v Friedman [2001] FCA 569

FEDERAL COURT OF AUSTRALIA

Bohills v Friedman [2001] FCA 569

ADMINISTRATIVE LAW – judicial review – natural justice – reasonable apprehension of bias – provision of prejudicial material to members of a Disciplinary Appeal Committee of the Merit Protection and Review Agency prior to hearing of the appeal – whether gives rise to a reasonable apprehension of bias – waiver – express statement of confidence in ability of tribunal to act properly – whether nullified objection – whether amounted to a waiver – improper exercise of power – taking into account an irrelevant consideration – tender of folder containing irrelevant and prejudicial material – reliance by committee on the evidence tendered by the parties – whether committee took into account an irrelevant consideration PUBLIC SERVICE – appeal committees – nature of an appeal to a Disciplinary Appeal Committee of the Merit Protection and Review Agency – whether appeal by way of rehearing or a fresh hearing COURTS AND JUDGES – findings of fact – task of decision-maker in making findings of fact – whether decision-maker should accept the account of one witness wholly in preferenceto that of another WORDS AND PHRASES – "hear"

Public Service Act 1922 (Cth) ss 56, 61, 62, 63D Merit Protection (Australian Government Employees) Act 1984 (Cth) ss 16, 17 Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth) ss 3, 4, 14, Sch 1 Public Employment (Consequential and Transitional) Regulations 1999 (Cth) regs 2.19, 4.2, 4.4 Allesch v Maunz [2000] HCA 40, (2000) 173 ALR 648, followed Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 174 ALR 585, followed Secretary, Department of Social Security v Willee (1990) 96 ALR 211, considered Day v Douglas [1999] FCA 1444, considered Commonwealth of Australia v Day [2000] FCA 474, considered Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied Hercules v Jacobs (1982) 60 FLR 82, considered Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, considered Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158, distinguished Vakauta v Kelly (1989) 167 CLR 568, applied Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, considered Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655, considered Hercules v Brennan (Fitzgerald J, 8 November 1982, unreported), referred to JOHN BOHILLS v GRAHAM FRIEDMAN, WENDY DAVENPORT AND TREVOR EDMONDS SITTING AS A DISCIPLINARY APPEAL COMMITTEE OF THE MERIT PROTECTION AND REVIEW AGENCY AND THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS V 209 of 2000 GRAY J 17 MAY 2001 MELBOURNE