MATKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, POWELL and COLE JJA 17 November 1995, 2 February 1996 [1996] NSWCA 344 ADMINISTRATIVE LAW — primary decision — breach of natural justice — available facility of appeal to GREAT — whether "cures" flawed primary decision — whether error of law shown in determination that it did — held (by maj): No error. Calvin and Ors v Carr (1979) 1 NSWLR 1 (PC), appld. INDUSTRIAL LAW - employment - disciplinary proceedings - entitlement to valid primary decision - availability of appeal - whether legal error - held (by maj): Not. PRACTICE AND PROCEDURE - appeal - interlocutory decisions of GREAT - whether appeal should be heard - held (by maj): It should. Rambin v Cassin, CA (NSW) 25.9.95, distd. WORDS AND PHRASES - "decision on a question of law". ADMINISTRATIVE LAW - disciplinary appeal - dismissal of tenured teacher for alleged sexual harassment and other offences - alleged departure from procedural fairness - whether "gross breach" of rules of procedural fairness or "deliberate flouting" of such rules required to categorise the primary decision as void - employee complaints of (a) failure to conform to employer's guidelines on sexual harassment cases; (b) failure to give due warning of materials at information stage; (c) surrender of primary decision-maker's decision to advice from employer; (d) consideration by primary decision-maker of submissions on penalty not shown to employee - GREAT Tribunal rejects employee's submission that original decisions vitiated by legal error (departure from procedural fairness) requiring remittal to primary decision-maker for the making of lawful primary decisions - GREAT Tribunal decides, on preliminary point, that the hearing of an appeal to it on the merits will cure defects in the primary decision - held: (1) (by the Court) The complaints about the investigatory phase and processes of decision-making were open to the Tribunal and showed no legal error. Elliot v Seymour and Ors (1993) 119 ALR 1, applied; (2) (per Powell JA and Cole JA; Kirby P dissenting) The complaint about receipt by the primary decision-maker of submissions without provision of the same to the employee, although correctly found to be a departure from the rules of procedural fairness could, as the Tribunal held, be adequately cured in the appeal on the merits. No error of law was established requiring intervention of the Court of Appeal. Twist v Randwick Municipal Council (1976) 136 CLR 106; Calvin v Carr (1979) 1 NSWLR 1 (PC), applied; Stead v State Government Insurance Commission (1986) 161 CLR 141, distinguished. INDUSTRIAL LAW - employment relations - disciplinary proceedings - dismissal - validity of primary decision - alleged departures from procedural fairness - decision on penalty taken upon submissions not shown to employee affected - breach of procedural fairness found but GREAT Tribunal holds that it can "cure" by hearing of appeal on the merits - whether legal error shown - held: (1) (Powell JA and Cole JA; Kirby P dissenting) It was not. General Medical Council v Spackman [1943] AC 627 (HL), considered; Calvin v Carr and Ors [1979] 1 NSWLR 1 (PC); Preston v Carmody and Ors (1993) 44 FCR 1, applied; 2 UNREPORTED JUDGMENTS (2) (per Powell JA): Contrary to the assumption of the parties, the disciplinary provisions of the 1981 Regulation did not apply to the present case but the Court should determine the appeal on the basis of the parties' assumption. PRACTICE AND PROCEDURE - appeal - Government and Related Employees' Appeal Tribunal - interlocutory decision - decision on preliminary point argued by parties and decided by tribunal - refusal to uphold appeal and require primary decision to be re-made on the ground of invalidity - whether appellant should be required to exhaust appeal on merits in tribunal - held: (1) (by the Court) The decision on the preliminary point was an interlocutory one against which an appeal lay to the Court of Appeal. Clisdell vy Commissioner of Police (1993) 31 NSWLR 555 (CA), applied; (2) (per Kirby P and Powell JA; Cole JA dissenting) The Court should proceed to determine the appeal on its merits. Smith v Allan (1993) 31 NSWLR 52 (CA), applied; Rambin v Cassin, Court of Appeal (NSW), unreported, 25 September 1995, referred to. MASTER AND SERVANT - dismissal - fair procedures - requirements of procedural fairness - consequences of breach - employee's right to appeal to Government and Related Employees' Appeal Tribunal - whether dismissal decision vitiated by error so as to be void - test to be applied for determination of adequacy of facility of appeal to cure primary decision affected by legal error. Calvin and Ors v Carr [1979] 1 NSWLR 1 (PC); Ridge and Baldwin and Ors [1964] AC 40 (HL), applied. WORDS AND PHRASES - "decision on a question of law" Government and Related Employees' Appeal Tribunal Act 1980, s42, s23, s54, s55, s56. Teaching Services Act 1980, s2A, s83, s84, s85, s101. Technical and Further Education Commission Act 1990, s4, s9, s17(1), s36, s37, Sch2, Pt2; Sch4. Technical and Further Education Teaching Service Regulation 1981. Technical and Further Education (Savings and Transitional) Regulation 1993. ORDERS Appeal dismissed with costs. Kirby P "Convenience and justice are often not on speaking terms". So said Lord Atkin in General Medical Council v Spackman [1943] AC 627 (HL), 638. That was a case where the House of Lords held that the Council was entitled to regard a divorce court finding of adultery on the part of a medical practitioner as evidence warranting the removal of his name from the medical register. But it also found that, in refusing to hear evidence tendered by the practitioner, it had not made "due inquiry" as required by the statute. The person charged was entitled to have his evidence and argument heard and considered. "Tf this is inconvenient it cannot be helped. It is much more inconvenient that [he] should be judged guilty on an infamous offence by any other than the statutory body". And, his Lordship might have added, in accordance with the requirements of the statute and of the common law. Administrative law, with its insistence upon lawfulness, fair procedures and the ultimate reasonableness of administrative decisions is often inconvenient. But much worse would be a failure of the law to insist upon these standards, important as they are to the outcome of the particular case and to the conduct of public administration generally. This appeal illustrates these themes. A COLLEGE TEACHER IS DISMISSED FOR ALLEGED SEXUAL HARASSMENT Mr Leonard Matkevich (the appellant) was employed by the New South Wales Technical and Further Education Commission (TAFE) (the respondent) and its predecessors for about twenty years before the events now to be described. In WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) November 1992, he received a letter of complaint concerning his conduct. It was signed by a number of students. It related to his attitude to teaching. Soon after, Mr Matkevich was interviewed by Mr E Binder, the head of the School in which he taught. He made a written reply to the complaint. The principal of the Sydney Institute of the respondent (Ms S Hanley) then interviewed various staff members and students. Soon afterwards, on 28 November 1992, a further letter was received, signed by five female students, complaining, for the first time, of sexually inappropriate statements by the appellant (e.g. "Going to bed with you would be interesting"). On | December 1992, the appellant was interviewed by Ms Hanley. In February 1993, he was again interviewed by Ms Hanley and Mr Binder. In May 1993, further statements were taken from female students elaborating sexual suggestions allegedly made by Mr Matkevich to them. In July 1993, a memo was signed, recommending that Mr Matkevich be charged with misconduct. Notice of the charges was given to him on 20 July 1993. The charges related to his alleged failure to attend classes and provide teaching on specified occasions; smoking in his office; retrospectively signing a roll book; failing to sign the roll book as required; performing private work at a time when he should have been supervising a class; improper conduct by statements to a particular female student involving a sexual innuendo; and assaulting another female student in his home (by "pulling her to you and then rubbing your hands on her buttocks"). Inexplicably, nothing significant then happened for eight months. However, on 18 March 1994, the relevant officer of the respondent, seemingly pursuant to reg36(5) of the Technical and Further Education Teaching Service Regulation 1981, appointed Mr Terry Mangan as the prescribed officer to conduct an enquiry into the alleged breaches of discipline by Mr Matkevich. It was noted that Mr Matkevich had denied all but one of the charges - smoking in his office. Under reg36(7), the prescribed officer so appointed was afforded the discretion to deal with the charge: "(a) by directing the officer... charged to furnish an explanation in writing within a time which may be specified in the direction and upon the expiry of that time by considering the reports relating to the breach of discipline and the replies and explanations, if any, of the officer or temporary employee charged; or (b) by conducting an inquiry". The "inquiry" referred to would involve oral evidence, the facility to confront and question accusers and to participate in a formal hearing. Despite the nature of the charges, the prescribed officer, elected to deal with them pursuant to para(a). This decision led to an immediate request by Mr Matkevich's solicitor that the charges be dealt with by an inquiry under para(b). However, on 5 May 1994, Mr Mangan rejected that request. On 25 May 1994, the solicitors provided a ten-page response denying the charges and putting forward the appellant's version. He admitted that during 1992, at various times, he had smoked cigars in his office. He stated that he had endeavoured to cut down on his smoking and had ceased entirely by the end of 1992. He argued that if the respondent did not deal with his breach "'in a realistic fashion", he would expect action to be taken against other members of the staff who had been smoking at work. The other charges were denied. On 6 June 1994, Mr Mangan requested submissions on penalty. Submissions were duly made by the director of the Sydney Institute of the respondent on 21 June 1994. It is common ground that, prior to the primary decision, such 4 UNREPORTED JUDGMENTS submissions were never shown to Mr Matkevich or his solicitors. The submissions urged that Mr Matkevich be dismissed. On 4 July 1994, Mr Philip Carroll, Acting Manager, Industrial Relations Division of the respondent, provided detailed submissions to Mr Mangan apparently designed to assist him by commenting on the material and the parties' submissions. For most of the offences charged, Mr Carroll proposed penalties of fine, demotion or reprimand. However, in respect of the charge of improper conduct concerning the alleged verbal sexual innuendo to one student and inappropriate touching of the other, Mr Carroll recommended that Mr Matkevich be directed to resign "because he has demonstrated his inability to behave with the level of decorum appropriate to the position occupied". On 12 July 1994, Mr Mangan reported his findings on the charges. He found the charges proved. For the smoking offence, he determined that a reprimand was the appropriate penalty. Similarly, for failing to sign the roll book as required, he considered a caution was the appropriate penalty. For failing to attend classes and for performing private work when he should have been supervising class, he recommended demotion from senior head teacher to teacher. But in respect of the charge of sexual innuendo and inappropriate touching of a student, Mr Mangan concluded: "I see this charge is the most serious charge. I concur with the TAFE Commission's submission that Mr Matkevich was in a position of being in loco parentis and as such abused his position of trust. In these circumstances I recommend that Mr Matkevich should be directed to resign." A comparison of the submissions for the respondent and the document provided by Mr Carroll indicates that Mr Mangan did not blindly follow either, at least on penalty. Whilst rejecting denials by Mr Matkevich, Mr Mangan, in respect of several charges, determined penalties which were lower than those recommended by either of the officers of the respondent. But on the critical, final charge, he followed their recommendation. He recorded that Mr Matkevich, in respect of the sexual innuendo, had submitted that the proper penalty, if the offence were found proved, was that he be severely reprimanded and cautioned against making such comments to students in the future. On 3 August 1994, Mr Matkevich was served with a notice of the appointed officer's decision. He was given a direction to resign. He declined to do so. On 4 August 1994, he lodged an appeal to the Government and Related Employees' Appeal Tribunal (GREAT). On 10 August 1994, he was dismissed from the service of the respondent. His appeal to the Tribunal was heard in October and November 1994. After twenty years, Mr Matkevich's professional life was potentially in ruins. He had lost a senior position. Presumably he would have lost various other rights. His reputation was tarnished. His prospect of employment in his profession would be severely curtailed. For him, the proceedings were extremely serious. The stakes were high. DECISION OF THE TRIBUNAL ON THE CLAIM FOR REHEARING Presumably with the consent of the parties, the Tribunal first isolated a preliminary point of law. This concerned whether, in the circumstances proved, the proper remedy for the complaints made and findings determined was, in effect, to hold that the purported decision of Mr Mangan was null and void for defects in the observance of the requirements of procedural fairness. In such a case, it was Mr Matkevich's submission that the matter should be remitted to the employer for redetermination because, in the eye of the law, there had never been a lawful decision in his case. In favour of that course would be: WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) (1) It would uphold the rule of law, the respondent's obligation and the appellant's entitlement to have a lawful primary decision as the legislation contemplated; (2) It would uphold the appellant's legitimate expectation that the respondent would conform to its own published guidelines on the handling of complaints concerning sexual harassment and like cases and otherwise ensure the provision to him, at the primary stage, of procedural fairness. Cf Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648, 653; (3) It would avoid the appellant's being placed in the disadvantageous position, as he was before the Tribunal, of being the appellant. It would place the burden of establishing his guilt of the charges alleged, upon the respondent, as the moving party. Before the Tribunal, the burden of establishing the case for relief would be carried by Mr Matkevich; and (4) It would reserve to Mr Matkevich the entitlement afforded by the Government and Related Employees' Appeal Tribunal Act 1980, if still dissatisfied by a lawful primary decision, to appeal to the Tribunal on the merits. If the hearing continued before the Tribunal, the only further appeal from it would lie to this Court pursuant to s54 of the Government and Related Employees' Appeal Tribunal Act. But such an appeal would be limited to one against the decision of the Tribunal on a question of law. In the submission of Mr Matkevich, then, the observance of legal principle, the preservation of his legitimate privileges; the seriousness of the issues at stake for him; and the insistence upon proper procedures for all employees required a rehearing. This might be inconvenient. It would certainly involve delay and expense. But, according to Mr Matkevich, the primary decision was fatally flawed with procedural errors. It was argued that the inconvenience of a rehearing was an inadequate answer to upholding the requirements of administrative law. Lord Atkin was again invoked: "[T]he procedures which may be very just in deciding whether to close a school or an insanitary house [are not] necessarily right in deciding a charge of infamous conduct against a professional man." See Spackman (above), 638 The Tribunal's decision on this preliminary point, recounted the foregoing facts. It referred to TAFE guidelines on the conduct of investigations and enquiries into cases of sexual harassment. These were placed before ie Tribunal and have been considered by this Court. They appear in the Gazette published by the respondent. They do not have the force of law. But they do represent a statement of policy, apparently endorsed by the respondent, which a person in the position of Mr Matkevich could ordinarily expect would be observed in the handling of the very serious charges brought against him. Before the Tribunal, Mr Matkevich complained about the failure to conform to the requirements of the guidelines in various ways, e.g. by failing to provide him immediately with copy of the complaints, by failing to inform him, at once that complaints had been received; and by failing to consider the appropriateness of a process of conciliation and mediation. By reference to authority, and to the facts found, the Tribunal determined that, at the pre-charge stage, it was not necessary to provide the potential accused with all of the relevant material. It rejected the submission that the proceedings were thereafter rendered unlawful or that the validity of the primary decision was thereby vitiated. The Tribunal distinguished between the stricter compliance with procedures laid down by the authority of 6 UNREPORTED JUDGMENTS statute and what was required by the policy guidelines endorsed by the respondent in this case. Cf Smith v Allan (1993) 31 NSWLR 52 (CA), 60. So far as the next complaint, concerning the suggestion that Mr Mangan's discretion not to order an enquiry under reg36(7)(a) of the Regulation had been legally wrong in such a way as to cause the discretion to miscarry, the Tribunal observed: "The Tribunal can readily appreciate the appellant's point of view that a case which concerned allegations of sexual harassment by a senior career teacher towards his students is one of such seriousness that the better way would have been to have the evidence presented and tested at a formal hearing. The fact that that was not done would undoubtedly offend notions of justice and fairness in the minds of many persons in the community. It is the Tribunal's opinion an inquiry should have been held in a case such as this." Nevertheless, the Tribunal rejected the contention that the discretion not to proceed under para(b) had been so erroneous as, in effect, to be void. It pointed out that if too strict a superintendence of such discretionary decisions were upheld, there would be few, if any, disciplinary decisions which would escape some procedural flaw. So far as the complaint that Mr Mangan had unduly relied upon the Industrial Relations Division of the respondent, the Tribunal set out the correspondence (which was entirely proper). It pointed out that Mr Mangan, not being himself legally qualified, was entitled to call upon assistance concerning technical matters (such as the burden of proof, upon which he was instructed) and procedural duties. He would make no legal error so long as he reserved to himself the final decision committed to him by the Regulation. On this objection, the Tribunal reached the opinion that: "The fact that the prescribed officer accepted advice and recommendations as to the action he should take in respect of the exercise of his discretion or any other matter in the course of his carrying out his appointed task does not render the process unlawful in the Tribunal's view. The evidence available does not support the proposition put that the prescribed officer allowed [the adviser] to make his decision for him in respect of the rejection of the appellant's request that an inquiry be conducted.... The Tribunal does not accept that the evidence supports the claim... [or] that the prescribed officer failed to ensure that he acted independently of TAFE in making his decision as prescribed officer with regard to the merits of the charges of penalty. The Tribunal accepts... that Mr Mangan did substantially rely on information and advice given to him by... an officer of TAFE. However, the Tribunal is satisfied from the evidence that the decisions ultimately taken were Mr Mangan's decisions." Although each of the foregoing determinations by the Tribunal was attacked in this appeal, none of the attacks is made good. The duty of procedural fairness in respect of pre-charge investigations, is necessarily circumscribed by the nature of the process involved. See Rees and Ors v Crane [1994] 1 All ER 833 (PC), 843. It would be destructive of many investigations to require that an investigator should act judicially, in the sense of having to provide full information to both sides and to hear their submissions on all of the material held by the investigation. See Elliott v Seymour and Ors (1993) 119 ALR 1 (HC - Gaudron J), 7f; Mahon v Air New Zealand Ltd [1984] AC 808 (PC); Grech and Anor v Featherstone and Ors (1991) 33 FCR 63 (FC), 67. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) I accept that the fact that the respondent had endorsed procedures for the handling of sexual harassment cases would give rise to a legitimate expectation that such procedures would ordinarily be followed. But this could not be used to elevate such procedures to the status of inflexible requirements. In any case, on the facts as found, it was clearly open to the Tribunal to hold that, substantially, Mr Matkevich had been given adequate notice of the complaints which were made against him. The fact that he followed them with a letter to one of the students (which, in turn, drew a warning from the respondent) indicates that he was aware generally of the complaints being made. The fact that a letter from him to the student suggests that he had apologised for his conduct, indicates that there is no real substance in the assertion of complete surprise at the actual allegations being voiced. The Tribunal's decisions on each of the foregoing three objections to the procedures of the investigation and primary decision-maker, were clearly open to it. None of them indicates an error of law which is the only basis upon this Court is empowered to intervene. In each case, a holding that the decision of the investigator or of the primary decision-maker was such as not to vitiate the lawfulness of what had occurred, was also clearly open to the Tribunal and betrays no legal error. This is especially so because, as the Tribunal pointed out, it would proceed to re-hear the charges against Mr Matkevich. At that re-hearing, it would be empowered by its Act to substitute a decision on the merits. The large powers of the Tribunal in disciplinary appeals (see s48(2) of the Act) enable the Tribunal to correct errors made by the primary decision-maker and to re-determine both the finding on the disciplinary charges and the penalty imposed. Counsel for Mr Matkevich made it plain that his client made no complaint against the Tribunal's independence and capacity to evaluate the merits for itself. In these circumstances, so far, the complaints made against the Tribunal's decision must fail. But in parting with the above issues, I would endorse the opinion of the Tribunal that the proper (as distinct from only lawful) exercise of the power to determine complaints of the variety, belatedness and seriousness of those brought against such a senior career teacher as Mr Matkevich was by the conduct of an inquiry as reg36(7)(b) provides and not by the informal procedure which Mr Mangan adopted upon the recommendation of the respondent. In such matters (which ultimately had such a serious consequence), it is ordinarily a fundamental right of a person to face, and to have the opportunity to question, his or her accusers. I am surprised that this was not obvious, both to the prescribed officer and to those who represented the respondent and urged a different course. But, with some regrets, I cannot say that the contrary decision may be characterised, in law, as so flawed as to be void and of no effect. EMPLOYER'S SUBMISSIONS NOT DISCLOSED TO EMPLOYEE AND CONSEQUENCES I now reach the development which is crucial to my decision. It was common ground that Mr Mangan called for, and received, submissions from the respondent (and from Mr Matkevich) on the question of penalty. However, he but did not provide Mr Matkevich's solicitor with the opportunity to be heard in respect of such submissions. He likewise failed to give the respondent the opportunity to be heard on Mr Matkevich's submission on penalty, but as the ultimate decision reached was that urged for the respondent, this failure had no operative consequence and the respondent made no complaint. 8 UNREPORTED JUDGMENTS It is fundamental that a decision-maker should afford a party affected the opportunity of knowing, and commenting upon, a submission received by the opposing party. Where a party stands in peril of grave consequences, and particularly where the submission in question calls for such serious consequences, the party affected must be afforded the chance to see the submission, to comment upon it and to seek, by evidence and argument, to persuade the decision-maker to a view more favourable to his or her cause. To the suggestion that the battle lines were already clearly drawn, that Mr Matkevich would have known the attitude of the respondent and that he had a chance, by his own submissions, to put his competing view, the answer is given by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 (CA) at 67: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." The same principle applies, in this fundamental respect, to administrative decisions made by a donee of statutory power (the prescribed officer) who must reach a conclusion by fair procedures such as Parliament is deemed to have required. It is unthinkable that Parliament would have envisaged, in enacting the law under which the Regulation was made, that the prescribed officer might consider the dismissal of a tenured long-serving teacher on the basis of private communications not made available to the opposing party, seriously affected by them. The general principle that a person is not to be dismissed for misconduct without being afforded the full opportunity to be heard, including on penalty, can scarcely be doubted. See e.g. Ridge v Baldwin and Ors [1964] AC 40 (HL), 68. What then follows? The principle in Jones (above) was accepted by the High Court of Australia in Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-6: ..[N]ot every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact... However, when the Full Court is invited by a respondent to exercise those powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact." WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) Correctly, the Tribunal recognised that this complaint by Mr Matkevich was the most serious one and that there had been an unfair proceeding. It was satisfied that: "\, there was a lack of procedural fairness in this part of the process. The Tribunal considers it to be of fundamental importance that relevant material being considered by the decision-maker be disclosed to both parties if a matter is to be adjudicated fairly." "CURING" AN UNFAIR PRIMARY DECISION BY AN APPEAL However, the Tribunal then turned its attention to the question whether the default was such as to vitiate the decision made in contravention of the requirements of procedural fairness as found, or whether the facility of appeal to it would afford an adequate remedy in the circumstances. This was a valid question for the Tribunal to ask. It is frequently the case that a procedural error will be shown but may not require a rehearing. Defining which ones render the subsequent decision void and of no legal effect (on the one hand) and which remain flawed but valid, such that they can ground, and be corrected on, an appeal (on the other), is not easy. In Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106, the resolution of the problem posed by a flawed primary administrative decision and a facility of appeal was explored by the High Court. Barwick CJ, at 110, commented: "Tf the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But if it appears to the court that the legislature has not addressed itself to the appropriate question, the Court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The Court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen." Barwick CJ held that the terms of the section in question (Local Government Act 1919, s317B) left no room for a declaration that the applicant was entitled to be heard. The same conclusion was reached by Mason J. But the latter went on, at 113f, to consider the consequences of the availability of an appeal to the District Court from the primary decision: "Does the existence of the right of appeal... satisfy in full the duty of fairness or does it sufficiently indicate the legislative intention that the duty of fairness has no application to the council...? This... is a question which could be easily disposed of if the appeal were less than a full and comprehensive appeal from the council's order. In that event it could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced. The owner might find that certain matters were irrevocably decided against him by the council without its having the benefit of representations on his behalf. However, the appeal is not restricted in any way. It is a full appeal on facts and law in which the appellant is entitled to call evidence.... There is nothing in the language of the section to preclude the Court from considering afresh for itself these discretionary elements." At 116, Mason J said, further: 10 UNREPORTED JUDGMENTS "\.. [T]he earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have *cured" a defect in natural justice or fairness which occurred at first instance.... [T]he party affected has elected to treat the administrative decision as a valid though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the Court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal." The Tribunal considered the resolution of this quandary in the present case. In the end, it decided that its own power to conduct a full hearing and substitute its own decision for that of the primary decision-maker, afforded Mr Matkevich the right to a hearing on the merits and thereby to cure the defects in the procedures followed when the initial decision was made. The decision resonated with that upheld in Ex parte Corbishley; re Locks [1967] 2 NSWR 547 (CA), 548. An appeal from a magistrate to the District Court (Quarter Sessions) to a District Court judge was held to obviate not necessity of prohibition or other relief. It is at this point, that, with respect to the Tribunal (whose decision is otherwise impeccable), I believe that legal error intruded. THE TRIBUNAL APPLIES A LEGALLY ERRONEOUS TEST In justifying its decision on the preliminary application before it, the Tribunal said: "\.. [I]t is consistent with the Tribunal's raison d'etre for it to proceed to determine the matter on the merits and make such order as it thinks fit to bring about a fair and just result for the parties having regard inter alia to defects in the primary process, other than breaches of legislation, revealed in the course of the appeal hearing. The Tribunal considers there would need to be a gross breach of the requirements of natural justice or the employer's own policies such as to render the disciplinary process undertaken virtually nugatory before a determination should be made that the decision flowing from such a process was void and of no effect. Such a course might be justified if the evidence revealed a fundamental failure to afford procedural fairness to an employee by, for example, refusing to hear him at all prior to dismissal. It might also be justified where the employer was shown to have deliberately chosen to ignore or flout the principles laid down by the employer's own policies. Such a determination on the part of the Tribunal would mean that the disciplinary process would have to be repeated or, depending on the employer's attitude, no longer pursued. For the Tribunal to adopt that course whenever it detected any defect, no matter how minor, in the initial disciplinary process would render any system of imposing fair and just disciplinary punishment on offending employees who come within the Tribunal's jurisdiction virtually unworkable. This would be contrary to the public interest and the WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) expectations of the community that proper standards of conduct and integrity be maintained in the public administration of this State." Whilst acknowledging the difficulty of drawing the line between those primary decisions which are vitiated by legal error (such that they are viewed as not being decisions at all) and those which can be cured by the facility of appeal, I am of the opinion that the foregoing reasoning displays error in the decision of the Tribunal on a question of law. It is a question of law to determine the test to be applied for the resolution of the preliminary question of law which was posed for, and decided by, the Tribunal. The application of the legal test to the facts as found, resolved the future conduct of the appeal by the Tribunal. If one outcome were arrived at, the proper course was to allow the appeal, to set aside the primary decision and to remit the matter to be decided at first instance without the vitiating flaw of procedure which struck at the integrity of the decision. With all respect to the Tribunal, the test which was applied in differentiating the cases suitable for appellate correction and those not so suitable, was far too stringent. To require a "gross breach", "fundamental failure" of the requirements of natural justice (procedural fairness) to be demonstrated, is to apply the wrong test. To require proof that an employer was deliberately chosen to ignore or "flout" its own policy guidelines was also to adopt a principle unduly protective of the primary decision and insufficiently sensitive to upholding the legitimate expectation that established, published, fair employment procedures would be followed. In the event, the latter holding is irrelevant, for I have concluded that the departures from the policy guidelines were not such as to authorise the intervention of this Court. But the insistence that a "gross breach" of the requirements of procedural fairness be shown was wrong. Such an approach is not sustained by the law of this country. In Calvin and Ors v Carr [1979] 1 NSWLR 1 (PC) at 10; [1980] AC 574 (PC), 592, the Privy Council, in an appeal from this Court, acknowledged the difficulty of drawing the line and cataloguing the decisions the subject of complaint: "... [T]heir Lordships recognise, and indeed assert, that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi judicial, can be "cured " through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are however a number of typical situations as to which some general principles can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned.... At the other extreme are cases where, upon examination of the whole hearing structure, in the context of the particular activity to which it relates... the conclusion is reached that a complainant has a right to nothing less than a fair hearing both at the original and at the appeal stage. This was the result reached by Megarry J in Leary v National Union of Vehicle Builders [1971] Ch 34. In his judgment in that case the learned judge seems to have elevated the conclusion thought proper in that case into a rule of general application. In an eloquent passage he said (at p 49): "If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought 12 UNREPORTED JUDGMENTS to be satisfied with an unjust trial and a fair appeal?... As a general rule... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body". In their Lordship 's opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of rebels, or renegades, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make fair trial at first instance - probably branch-level an essential condition of justice. But to seek to apply it generally overlooks in their Lordships' respectful opinion, both the existence of the first category and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect." The Privy Council then determined that, for the intermediate cases, it was for the court to decide whether, "at the end of the day", there had been a fair result reached by fair methods such that the parties should fairly be taken to have accepted when they joined the association. There is nothing in Calvin v Carr, nor in the authorities before or since, that applies a criterion of gross, fundamental or deliberate breach such as the Tribunal seems to have established in its own mind in this case as the criterion for its determination of the preliminary question it was asked to decide. There are many cases on this issue, particularly in the Federal Court of Australia. See e.g. Colpitts v Australian Telecommunications Commission and Ors (1986) 9 FCR 52; Reid v Australian Telecommunications Commission (1988) 23 IR 96; Inglis v Bateson (1990) 99 ALR 149 (FC) and Preston v Carmody and Ors (1993) 44 FCR 1. Conformably with the line of authority analysed in Calvin v Carr and other decisions, in considering cases such as this, the courts have looked rather to such considerations such as: (a) The structure and imputed intention of the lawmaker as to the rights and duties of the primary decision-maker; (b) The nature of the breach of primary procedure alleged; (c) The composition of the appeal body; and (d) The power of the appeal body, e.g. to make a decision or merely a recommendation. When considerations such as the foregoing are applied in the instant case, the following comments can be made. The primary decision-maker was conducting his hearing pursuant to a Regulation. The duty of procedural fairness would clearly be important to the law-maker. The present is not a case involving the internal rules of a club. It is a case of delegated statutory power concerning discipline which involved the risk (and in this case the reality) of dismissal of a longstanding employee. The very considerable significance for the accused made it specially important that the decision should be reached fairly, and manifestly so. Otherwise, there would be a suspicion that the procedure had been a charade, designed simply to get rid of an employee and not to accord him the privileges inherent in the scheme of the Regulation. The breach of procedural fairness charged was, in any case, fundamental for the reasons illustrated in Jones and Stead. The appellate body, although a "court" for purposes such as the Suitors' Fund Act, it is not a court as the District Court is (e.g. in Twist). It included, in WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Kirby P) the present decision, two lay participants representing employer and employee interests. The facility of appeal to the Tribunal is beneficial. But it cannot cure every wrong done at first instance. A person affected is ordinarily entitled to having a lawful, fair primary decision, especially where his employment, reputation and other rights are at risk. In the case of this Tribunal, to limit the appellant to a hearing on the merits before the Tribunal, would have the further practical disadvantages earlier mentioned: a reversal of the burden of proof and a deprivation of a right of further appellate review from a decision of the Tribunal, save on a question of law. Although the Tribunal would reach a decision, and not a recommendation. it would be a decision from which no further appeal on the merits would be available. Against the background of the other reservations about the course of the primary decision-making in this case and the grave consequences for an employee of twenty years service, it is my view that the only lawful response was to set the decision aside and to recommit the matter to redetermination by the primary decision-maker. He could then reach his decision as the law requires, without the serious flaw of a procedural character found by the Tribunal, which I would confirm. CONCLUSION: RECOMMIT TO FRESH PRIMARY DECISION It was suggested, during argument, that the foregoing course was inappropriate because the Tribunal could just as readily reach a conclusion on that part of the primary decision-making which was vitiated as could the primary decision-maker. In its proposed re-hearing of the entire matter on the merits, the Tribunal would re-hear and determine the issue of penalty. It would do so, insisting on the strictest observance of the requirements of procedural fairness, such that Mr Matkevich had a full opportunity to provide evidence and submissions upon the submissions on penalty made for the respondent. I acknowledge the force of that submission. But for the reasons already stated, I consider that, within the statutory scheme here in question, the "decision" on penalty was reached in fundamental breach of the requirements of procedural fairness. Mr Matkevich should not be deprived of his prima facie entitlement to a lawful decision in the first place. See Smith v Allen (above), at 60. Cf Ridge v Baldwin and Ors [1964] AC 40 (HL), 68. He should not have cast upon him the burden of proof, such as an appellant carries. Rees and Ors v Crane (above), 845. He should not lose, in a matter so serious for him, the facility of a full appeal on the merits. He would have no such facility in a further appeal from the Tribunal to this Court. This Court is limited to correcting "any decision of the Tribunal on a question of law". Such "decision" extends to interlocutory decisions of the kind here in question upon the preliminary point reserved and decided by the Tribunal. See Clisdell v Commission of Police (1993) 31 NSWLR 555 (CA), 558. It is not an error of law for the Tribunal to decide, for convenience, that it will hear an appeal to conclusion on the merits, the appellant having invoked its jurisdiction. In the face of a privative provision, it would appear that Mr Matkevich could have challenged by judicial review the lawfulness of the primary decision in this Court on grounds of its departure from the rules of procedural fairness. He therefore had no real alternative to advancing that argument by his appeal to the Tribunal and by the preliminary point which was determined. Certainly, if he had sought to invoke the jurisdiction of this Court by way of judicial review, he would almost certainly have been rebuffed and directed to his statutory appeal. See Ultra Tune (Aust) Pty Ltd and Anor v Swann and Ors (1984) 8 IR 122 (NSWCA). 14 UNREPORTED JUDGMENTS At the outset of the appeal, a preliminary question was raised by Cole JA as to why Mr Matkevich should not be required to proceed to conclusion with his appeal on the footing that this Court's intervention at the present stage was premature. For reasons which I gave in overruling that preliminary point (belatedly embraced by the respondent), it was inappropriate to force the appellant to proceed before the Tribunal when his basic complaint was that the "decision" of the primary decision-maker was seriously flawed and invalid. This might be to deprive him of the objection which he presented against the validity of the primary decision for the decision of the Tribunal would undoubtedly be valid. See Matkevich v New South Wales Technical and Further Education Commission [No.2], Court of Appeal (NSW), unreported, 17 November 1995. Then it was suggested that if the Court were to take the course proposed, it could reopen entirely the decision at first instance and, possibly, deprive Mr Matkevich of the right, which the Tribunal's order reserved to him, viz of having an appeal on the merits. Neither of these propositions is correct. This Court could, by its orders under s56(1)(b) of the Act, make plain that the primary decision was only set aside so far as it concerned penalty (that being the point at which it was flawed). Against the valid redetermination of the primary decision, Mr Matkevich would enjoy full rights of appeal. A second, valid decision would give rise, in law, to all of the rights of appeal provided under the Government and Related Employees' Appeal Tribunal Act. Next, it was hinted that this course would have no practical utility which could not be secured by proceeding, as the Tribunal had ordered, with the hearing before it on the merits. But that is not so. The primary decision-maker might reach a different conclusion with the benefit of submissions for Mr Matkevich. After all, his arguments on penalty are not without merit. On most of the charges, the primary decision-maker reached a view that caution, reprimand or demotion were sufficient punishments. Mr Matkevich would be entitled to rely upon his years of service, good opinions of past students and staff and the fact that, effectively, he had been removed from his employment during the course of these proceedings. I am by no means convinced that the primary decision-maker could not reach a different conclusion when all relevant considerations were taken into account. In most activities of life, including in the law short of the gravest crimes, people are given to a second chance when they offend. Normally, before very drastic things happen to them (such as losing a senior tenured position of twenty years' duration), they are afforded a clear warning. This does not seem to have happened in Mr Matkevich's case. Were the primary decision-maker to reach a view, for example, that reprimand and warning, demotion and fine were an adequate response to all of the findings made (taking also into account the de facto suspension and the incurring of substantial costs), it is perfectly possible that Mr Matkevich would not then proceed with an appeal to the Tribunal. But whatever the outcome at the primary stage, he would still have intact his full appellate rights, for review on the merits. He would go into such an appeal to the Tribunal with a valid primary decision, lawfully arrived at, not one flawed by the serious breach of procedural fairness which the Tribunal itself correctly found had occurred. Was there an error in a "decision of the Tribunal on a question of law"? In my view, within such decisions as Metropolitan Water Sewerage and Drainage Board v Histon and Ors (1982) 2 NSWLR 720 (CA), 722-725 and Clisdell (above), there was. It is well known that deprivation of procedural fairness involves an WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Powell JA) error of law. See Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991)24 NSW LR 156(CA),186. In this case, the Tribunal's error of law arose in the application to the facts as found, of an incorrect legal test (of "gross breach" and "deliberate flouting") when deciding, on the preliminary point, whether to allow the appeal at that stage and to require redetermination of the primary decision, rather than to press on with the appeal. It is important that this Court should correct that error. As the Tribunal itself observed, departures from compliance with the duties cast on primary decision-makers in disciplinary cases are easily enough made. Unless this Court corrects the mistaken approach, it is at least possible that the Tribunal will continue to apply the same test to other cases. Appellate review on points of law in this Court is provided by Parliament precisely to guard against such errors. ORDERS: The orders which I favour are: (1) Allow the appeal; (2) Set aside the decision of the Government and Related Employees' Appeal Tribunal dated 10 January 1995; (3) In lieu thereof, order that the proceedings be remitted to the Tribunal for the making of orders under s48(2) conformably with the decision of this Court; and (4) Order that the respondent pay the costs of the appeal but have, if qualified, a certificate under the Suitors' Fund Act 1951. Powell JA Although the actions which were taken by various officers of the Technical and Further Education Commission ("the Commission") which were to lead to the hearing before the Government and Related Employees Appeal Tribunal ('the Tribunal"), the hearing in, and the determination, of the Tribunal, and the submissions which have been advanced on the hearing before this Court appear to have proceeded, or, in fact, did proceed, upon the basis of certain assumptions as to the state of the facts, or of the law, I am by no means satisfied that those assumptions were, or are, in fact valid; on the contrary, it appears to me that those assumptions were and are invalid. The assumptions to which I have just referred are as follows: 1. that certain statements of policy, and certain guidelines relating to complaints by students in relation to the conduct of teachers and in relation to complaints of sexual harassment made by (inter alia) students in relation to members of staff, which statements of policy and guidelines appear to have been published in the then TAFE Gazette by, or with the authority of, the then Director-General of Technical and Further Education, prior to the coming into being of the Commission, were policies and guidelines to be followed in relation to such matters after the abolition of the Technical and Further Education Teaching Service ("the Service") and its replacement by the Commission; 2. that from, and after, its being incorporated, the Commission had the power to deal with breaches of discipline of the type referred to in s83 of the Teaching Services Act 1980 ("the services Act"), and, in relation to any such breaches of discipline, to impose punishments of the type referred to in Division 6 of Pt4 of the Services Act; 3. that the procedure to be followed in relation to any alleged breach of discipline alleged to have been committed by any member of the staff of the Commission was, and continued to be, that contained in the Technical and Further Education Teaching Service Regulation 1981 ("the 1981 Regulation") 16 UNREPORTED JUDGMENTS notwithstanding the abolition of the Service and its replacement by the Commission pursuant to the provisions of the Technical and Further Education Commission Act 1990 ("the Commission Act'). The reasons which lead me to express the view which I have just recorded are as follows: 1. upon the coming into force of the Services Act - when first passed, known as the Education Commission Act 1980 - there were established both an Education Teaching Service and the Service, to the former of which Services those persons who were then officers in the Department of Education employed under the Teaching Service Act 1970 were deemed to have been transferred, and to the latter of which Services those officers employed in the Department of Technical and Further Education who had been employed pursuant to the provisions of the Public Service Act 1979 were deemed to have been transferred. The Services Act 1980 also provided that there should be appointed to each of the Services thus created, a Director-General who should be responsible to the Minister for the general conduct and the efficient effective and economical management of the functions and activities of the relevant Service, for which purpose each Director-General was to have, inter alia, the duty of maintaining discipline in the relevant service. Upon the coming into operation of the Commission Act 1990, the Service was, as I have earlier indicated, abolished, and the then members of the staff of that Service were taken to be members of the staff of the Commission employed under the Commission Act. That Act further provided that the affairs of the Commission were to be managed and controlled by a Managing Director subject to any direction given by the Minister pursuant to the provisions of the Act. 2. S83 of the Services Act provided that an officer - a description which would extend to include a teacher - of a Teaching Service who acted in any one or more of a number of defined ways was guilty of a breach of discipline. S84(1) of the same Act provided that a breach of discipline alleged to have been committed by an officer should be dealt with by the appropriate Director-General or a prescribed officer. S85 of the same Act provided for the varying forms of punishment which might be imposed on an officer in the event of it being found that he had been guilty of a breach of discipline. S2A of the Teaching Services Act which was inserted into that Act by the Commission Act 1990 provided that the provisions of the Teaching Services Act relating to the Technical and Further Education Teaching Service and the Director-General of Technical and Further Education should cease to have effect on the commencement of s4 of the Commission Act 1990, that is, the section of the latter Act which provided for the constitution of the Commission. Notwithstanding the provisions of s2A of the Services Act 1980, the Commission Act 1990 does not contain any provision in the same, or in similar, terms to those of s83, s84 and s85 of the Services Act 1980; rather, s17(1) of the Commission Act 1990 provides (inter alia) that the regulations might make provisions for, or with respect to, the employment of the staff of the Commission, including the conditions of employment and the discipline of any such staff. Such material as is available to the Court does not indicate that any regulations dealing with the discipline of any of the staff of the Commission have been made; 3. s84(2) of the Services Act 1980 provided that subject to the provisions of Division 6 of Pt4 of that Act the regulations made under (inter alia) s101 of that Act might (inter alia) make provision for, or with respect to, the manner of dealing with alleged breaches of discipline. S101 of that Act provided that the WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [NO.3] (Powell JA) Director-General of Technical and Further Education might, with the approval of the Governor, make regulations, not inconsistent with that Act, for, or with respect to, (inter alia) the maintenance of discipline, order, economy and efficiency in the Service and any matter that was (inter alia) necessary or convenient to be prescribed for carrying out, or giving effect to, the provisions of the Act concerning the Service. The 1981 Regulation, to which I have earlier referred, was made by the then Director-General of Technical and Further Education in pursuance of the provisions of Services Act, that Regulation taking effect on and from 3 February 1992. When the Commission Act came into operation on Ist February 1991, the Regulation was, by virtue of the provisions of s37 and Schedule 2 Pt2 of the Act, repealed. 4. S36 of the Commission Act 1990 provided that the Governor might make regulations, not inconsistent with the Act, for, or with respect to, any matter that by the Act is required, or permitted, to be prescribed, or that is necessary, or convenient, to be prescribed for carrying out or giving effect to the Act. CL9 of Schedule 4 of the Commission Act 1990 provided, inter alia, as follows: "Continuation of existing conditions of employment 9(1) A person who becomes a member of the staff of the TAFE Commission under CL8 is (until other provision is duly made under this or any other Act) to be employed in accordance with the relevant statutory provisions, awards, agreements and determinations that would have applied to the person if the person had not become a member of that staff and the Technical and Further Education Authority and the Technical and Further Education Teaching Service had not been abolished. (2) The relevant statutory provisions are the provisions of the Teaching Services Act 1980, the Public Sector Management Act 1988 and the regulations under those Acts which relate to the employment of the persons concerned. (4) This clause is subject to the provisions of this Act and the regulations." Having regard to the express terms of s2A of the Services Act to which I have earlier referred, to the express repeal of the 1981 Regulation, to the provisions of s36, s37 and CL9(4) of Schedule 4 of the Commission Act 1990, I would have thought that the "existing conditions of employment" which were continued by virtue of the provisions of CL9(1)(2) of Schedule 4 of the Commission Act, did not include the provisions of s83, s84 and s85 of the Services Act 1980, or the provisions of Pt7 - Breaches of Discipline etc of the 1981 Regulation but were limited to such conditions as salaries, leave conditions and the like. 5. This notwithstanding, on 1 October 1993 there was published in the Government Gazette the Technical and Further Education (Savings and Transitional Regulation 1993 ("the 1993 Regulation")) which contained the following (inter alia) provisions: "Definitions 2. In this Regulation: "the new Act" means the Technical and Further Education Commission Act 1900. 'the old Act' means the Teaching Services Act 1980. of transferred staff. 3. (1) The object of this clause is to identify those persons who are authorised to deal with breaches of discipline by members of staff to whom the disciplinary provisions of the Teaching Services Act 1980 continue to apply by virtue of the transitional provisions of the Technical and Further Education commission Act 1990. 18 UNREPORTED JUDGMENTS (2) The following positions held by members of staff of the TAFE Commission: (a) Group General Manager; (b) Institute Director; (c) Assistant Institute Director. are prescribed for the purposes of Division 6 of Pt4 of the old Act (as continued in accordance with CL9 of Schedule 4 of the new Act). (3) This clause applies instead of CL36(1) of the Technical and Further Education Teaching Service Regulation 1981 (as continued in accordance with CL9 of Schedule 4 of the new Act) and has effect accordingly." 6. if my analysis of these various provisions be correct, then the result would seem to be that, contrary to the assumptions upon which the hearing before the Tribunal appears to have, and the hearing before this Court, in fact, proceeded which assumptions appear also to have been made by the parties in Burns v TAFE Commission of NSW! to the judgment of Spender AJ in which reference was made both at the hearing before the Tribunal and in the hearing in this Court - the disciplinary provisions - in particular, s83, s84 and s85 - of the Services Act and the provisions of Pt7 - (CL36-CL38) of the 1981 Regulation did not apply to Mr Matkevich after Ist February 1991 when the Commission came into being. All this notwithstanding, however, I suppose that this Court has little alternative but to proceed to determine the present appeal on the basis of the assumptions which the parties have made. Reduced to their most simple form, the submissions advanced on behalf of Mr Matkevich proceeded along the following lines - 1. that in what occurred between the making of the original complaint against Mr Matkevich and the determination by the prescribed officer of the penalties which he considered appropriate in respect of such of the charges as he had found proven, the Appellant was denied procedural fairness in the following respects: (a) in that he was not given the opportunity to make representations to the effect that no formal charges should be laid against him; (b) in that the prescribed officer determined that the charges should be dealt with otherwise than by way of a formal inquiry; (c) in that, prior to his determination as to which of the charges should be held proven, the prescribed officer received information from officers of the Commission, which information was not disclosed to the Appellant; and (d) in that, when he came to consider what was the penalty appropriate to be imposed in respect of such of the charges as he found proven, the prescribed officer had regard to representations and submissions made on behalf of the Commission, which representations and submissions were not disclosed to Mr Matkevich or his advisers; 2. that, as the result of those matters, the determinations of the prescribed officer, both as to those of the charges which he determined ought to be found proven, and as to the penalties which he determined appropriate to be imposed in respect of such of the charges which he had found proven, were, and each of them was, void; 3. that, in the circumstances, the Tribunal having found that, in a number of respects, the procedures which had been adopted by the prescribed officer, were less fair than they might have been, it was not open to the Tribunal to find that such departures from the rules of procedural fairness as might have occurred 1. R36(7)(a) and R36(7)(b). WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATIOGN COMMISSION [NO.3] (Powell JA) could best be remedied by affording to the Appellant a hearing de novo on the merits, and that the only course proper for it to have adopted was to uphold the appeal, to set aside the findings on, and penalties determined in respect of, the charges which were found to have been proven and direct that the whole process be gone through again. I turn, then, to deal with these various submissions. 1. DENIAL OF PROCEDURAL FAIRNESS (a) The alleged failure to accord an opportunity to make submissions prior to the laying of charges. The bases upon which, so it seems to be said, this amounted to a denial of procedural fairness, appear to be: (i) that, having regard to what were said to be the statements of policy and guidelines, Mr Matkevich had a "legitimate expectation" that he would be accorded an opportunity to make such representations - before the Tribunal reference was made, in this regard, to the decision of the High Court in Haoucher v Minister of State for Immigration and Ethnic Affairs 22; and (ii) that, in any event, procedural fairness required that, even at what might be called the investigative stage, a person whose rights might be affected should have the opportunity to make representations. As did the Tribunal, I reject of each of these suggested bases. So far as the first is concerned, I would say no more than that, even if the statements of policy and guidelines were to be regarded as statements by the Commission, they were no more than guides as to what, in the ordinary course of events, would, or might, be the appropriate administrative action to be taken, and that, in the absence of any statutory warrant for so doing - and there appears to have been none - they could not be elevated into binding legal rules. So far as the second is concerned, I would say no more than that while there may be cases which are sufficiently special as to require that, even at a preliminary stage, a person ought to be heard in opposition to the taking of an initial step which might lead ultimately to his rights being affected,3 the general rule is to the contrary, particularly if the person likely to be affected is entitled to be heard at a later stage. (b) The failure to hold an inquiry If, as the parties have assumed to be the case, the procedure to be followed in relation to disciplinary charges was to be found in the provisions of Pt7 of the 1981 Regulation as amended by the 1993 Regulation, then, as it seems to me, this ground is lacking in substance. It cannot in my view, be the law that, where, in a case such as this, rules which have legal effect permit disciplinary charges to be dealt with in one or other of two defined ways at the discretion of the relevant officer, the rules of procedural fairness require that the relevant officer exercise his discretion in one rather than the other of those ways. (c) The alleged use by the prescribed officer, prior to his determining the charges, of material made available to him by officers of the Commission. In its Judgment the Tribunal recorded (inter alia) (Appeal Book at 434):- "The evidence shows that the CL36(7)(a) procedure decided upon by the prescribed officer had the practical effect of TAFE officers being provided with freely available access to him whereas the appellant and his legal advisers had a distinctly limited opportunity to take part in the disciplinary process. The appellant was only asked to respond in writing in respect of the material which 2. Appeal Book, Vol 2 at 330-335. 3. $23(1) Government and Related Employees Appeal Tribunal Act 1980. 20 UNREPORTED JUDGMENTS the prescribed officer afforded to him and later asked to make a submission on penalty after the charges had been found proved following a consideration of the papers. Throughout the process, however, the appellant and his legal advisers were unaware of all the material which had been provided to the prescribed officer by TAFE. Had an inquiry been conducted such a circumstance would have been expressly forbidden by CL36(16) of the Regulation." Having read the whole of the material in the Appeal Books, I have been unable to identify any material - other than that contained in the Commission's file relating to the charges, a copy of which file had earlier been provided to Mr Matkevich's solicitors - which had been provided to the prescribed officer by any officer of the Commission other than the material (referred to by the Tribunal in its Judgment at Appeal Book at 431-3) provided to the prescribed officer by a Mr Murphy, an officer in the Commission's Industrial Relations Section, who had been appointed to advise the prescribed officer - who had no legal training or experience - as to the duties required of him. That material - which included (inter alia) extracts from the Judgment of Dixon J (as he then was) in Briginshaw v Briginshaw4 as to the standard of proof to be met, and the level of satisfaction required, in such cases - did not, in any way, deal with the material which the prescribed officer was required to consider, and, still less, the determinations which he ought to make, in respect of the charges upon which he was required to report. In this regard, it is not without point to note that the prescribed officer was later to hold not proven, one of the serious charges - No. 7, which was a charge of "sexual assault" - upon which he was required to report. In these circumstances, it seems to me that, insofar as what the Tribunal has written might suggest that material was improperly provided to the prescribed officer, and used by him, prior to his determining which of the charges ought to be regarded as proven, the evidence does not support that part of the Tribunal's Judgment. (d) The failure to provide to the Appellant a copy or copies of the submissions on penalty made by the Commission. Although the Tribunal in its Judgment does not appear expressly so to have found, it has been asserted and does not appear to be denied that copies of the submissions on penalty (see Appeal Book at 319-20, 304-311) which had been provided to the prescribed officer by officers of the Commission were not provided to Mr Matkevich or his solicitors. This, as it seems to me, involved a failure on the part of the prescribed officer to accord to Mr Matkevich procedural fairness. The duty of a person in the position of a prescribed officer when dealing with disciplinary charges to accord to the person against whom the charges have been brought procedural fairness extends to the whole process, including the determination of what penalty, or penalties, might be appropriate to be imposed in respect of any charge or charges found proven, Hall v New South Wales Trotting Club Ltd.5 That obligation, so it seems to me, was not discharged by the prescribed officer affording to Mr Matkevich an opportunity to make submissions as to penalty but not revealing to Mr Matkevich's solicitors material in his possession which was relevant to the question of penalty, Hart v Bookmakers Revision Committee®, The fact that, as Kirby P has recorded, in most cases, the penalties imposed were less than those suggested on behalf of the Commission is irrelevant 4. Appeal Book at 424. 5. Appeal Book at 426. 6. Appeal Book at 427. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATIQGN COMMISSION [NO.3] (Cole JA) 2. WERE THE DETERMINATIONS VOID? It does not, however, follow from my conclusion that, in respect of the question of penalty, the prescribed officer failed to accord to Mr Matkevich the benefit of procedural fairness, all of the determinations of the prescribed officer ought to have been regarded as void. On the contrary, it seems to me that if it can be seen that the rules of procedural fairness have been broken only in respect of a particular portion of a proceeding and that the decisions or determinations taken at various stages through the proceeding are clearly severable, it is not necessary that the whole of the proceedings and the decisions taken ought to be held void; it being sufficient that only that part of the proceedings, and those decisions affected by error be so treated'. 3. WAS THE COURSE PROPOSED BY THE TRIBUNAL OPEN TO IT? While I accept, that at least in relation to what might be called disciplinary appeals, the powers conferred on the Tribunal by s48 of the GREAT Act permit it, in an appropriate case, to determine that the decision in respect of which the appeal has been brought was not lawful, and thus invalid, the conclusions which I have recorded above would dictate that, while it would have been open to the Tribunal to express its view that the prescribed officer's determinations as to penalty were void, it could not have done so in relation to the prescribed officer's determination as to the charges which he had determined ought to be found proven. The Tribunal, thus, was not, in my view, bound to set aside the of (sic) the prescribed person's determination as to the questions of guilt or otherwise but, on the contrary, was left to determine what was the most appropriate order to be made in order to rectify whatever deficiencies in the proceedings it had found. It would, in my view, have been open to the Tribunal to remit the question of penalty to the prescribed officer - a matter to which I referred during the course of argument (Transcript at 30) - but it would not, in my view, have been obliged to do so; on the contrary, it would have been open to the Tribunal itself to determine the appropriate penalty, each of Mr Matkevich and the Commission having an opportunity to lead whatever evidence and to advance whatever submissions he and it thought appropriate. In fact, the course determined upon by the Tribunal - that is a hearing de novo both as to questions of guilt or otherwise and as to penalty - goes beyond what, in my view, Mr Matkevich was entitled to expect. However, as no cross-appeal has been filed on behalf of the Commission, I need not delay further on that matter. In all the circumstances I am of the opinion that the appeal should be dismissed with costs. Cole JA Until his dismissal on 10 August 1994, the appellant Leonard Matkevich, was a senior head teacher of fine arts at the East Sydney College of TAFE. In November 1992 the appellant was the subject of complaint from a number of students. In consequence, he was asked to see Mr Binder, Head of School and was shown the initial complaint on 23 November 1993. He was given a copy of that complaint. Sometime thereafter he prepared a handwritten commentary on the charges and offered to "answer any questions on the complaint". Between November 1992 and July 1993 TAFE officers, including the Principal, Miss Hanley, interviewed students and staff and compiled evidence relating to the complaints. On 20 July 1993 the appellant was charged. 7. Appeal Book at 431. 22 UNREPORTED JUDGMENTS Under the Technical and Further Education Service Regulations 1981, a Mr Mangan was appointed the Prescribed Officer to investigate those charges. The regulations permit such a Prescribed Officer to deal with charges either by conducting an inquiry, or by directing the officer to furnish an explanation in writing within a nominated time and thereafter by considering reports relating to the breach of discipline and the explanations therefore.8 Mr Mangan elected to follow the latter procedure, declining a subsequent request by the appellant's solicitor to conduct an inquiry. Having engaged in the process mentioned, Mr Mangan found charges | to 6 proved and charge 7 not proved. In respect of the proven charges he requested submissions on penalty from each of TAFE and the appellant. He received submissions from each but did not make either submission available to the other party. Thus neither had the opportunity to direct attention to the opponent's submission on penalty. On 12 July 1994 Mr Mangan imposed the following penalties: Charge 1: Misconduct - failure to attend classes. Penalty: Demotion from senior head teacher to teacher. Charge 2: Misconduct - failure to observe TAFE's non-smoking policy. Penalty: Reprimand. Charge 3: Misconduct - failure to maintain the 1992 roll book for Diploma IIT Photo Major - Graphic Research III until November 1992. Penalty: Reprimand. Charge 4: Negligence - failure to mark the 1992 for (sic) Diploma III Photo Major - Graphic Research II until November 1992. Penalty: Caution. Charge 5: Misconduct - undertook private work when should have been supervising class. Penalty: Demotion from senior head teacher to teacher. Charge 6: Improper conduct - made inappropriate and suggestive comments to a student Ms Athena Mylonas. Penalty: Recommend that Mr Matkevich be directed to resign.9 Tribunal (GREAT). That Tribunal had no power to deal with decisions where the penalty was either a caution or a reprimand.!° It had jurisdiction to deal with the remaining charges. The argument addressed to GREAT was that the findings of Mr Mangan were so infected by procedural unfairness that they should be quashed or declared void. THE GREAT FINDINGS Before GREAT, the appellant contended: (a) That he had a right to procedural fairness prior to being charged, which right was breached. It was contended that he was not given: (i) notice of complaints preferred against him when they were received by TAFE; (ii) copies of such complaints when they were received by TAFE; (iii) the opportunity to respond to such complaints; and (iv) the opportunity to respond to allegations made before he was formally charged. 8. R36(7)(a) and R36(7)(b). 9. Appeal Book, Vol 2 at 330-335. 10. S23(1) Government and Related Employees Appeal Tribunal Act 1980. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATIGS COMMISSION [NO.3] (Cole JA) These rights were said to flow from policy guidelines issued by TAFE which guidelines were breached. GREAT found that the appellant was given notice of the complaints and was aware that such complaints were being investigated. Thus he was provided with an opportunity to deal with the allegations before he was charged. Further, GREAT found that the policies published by TAFE were substantially complied with. It was thus not persuaded that the appellant was "unfairly treated during the investigative stage of the process".!! It rejected the appellant's submission that the "decisions the subject of these appeal proceedings were rendered unlawful by any failure on the part of TAFE to provide the appellant with a wider opportunity to be heard about the allegations before charges of breaches of discipline were laid against him. The Tribunal holds that he had no right in law to be heard further in respect of the allegations" .!2 It further held that failure to strictly comply with the policies and guidelines set forth in the TAFE Gazette did not render the decisions the subject of the appeal unlawful.!3 (b) That the appellant had been subjected to procedural unfairness by the Prescribed Officer's decision to deal with the charges by directing an explanation in writing from the appellant, rather than by conducting an inquiry. It seems the appellant accepted that the Prescribed Officer had a power to decide which course to adopt. However it was said that procedural fairness had been denied to him in the exercise of the discretion by the Prescribed Officer in deciding which course to follow. The denial of procedural fairness in relation to the Prescribed Officer's exercise of discretion was said to be constituted by the circumstances that the Prescribed Officer: (i) relied on misleading information forwarded to him by TAFE Industrial Relations Section; (ii) misinformed himself as to his duties in this regard; (iii) failed to provide the appellant with a right to be heard prior to the exercise of the discretion; (iv) fail to properly exercise his discretion by failing to take into consideration the interests of the appellant; (v) fail to properly exercise his discretion when requested to reconsider his previous decision; and (vi) allowed an officer of the TAFE Industrial Relations Section to make his decision with regard to the request when he reconsidered his decision as to the mode of dealing with the charges. !4 GREAT found that the Prescribed Officer's acceptance of advice from the Industrial Officer did not render his decision unlawful. It rejected the contention that the Prescribed Officer had not made his own decision. This ground of challenge was thus rejected. (c) That the Prescribed Officer dealt with the charges in a procedurally unfair manner. This was said to be constituted by: 11. Appeal Book at 424. 12. Appeal Book at 426. 13. Appeal Book at 427. 14. Appeal Book at 431. 24 UNREPORTED JUDGMENTS (i) failure to disclose to the appellant the meetings, telephone conversations and correspondence which took place between himself and officers of the TAFE Industrial Relations Section; (ii) failure to disclose to the appellant and thereby failed to allow the appellant the opportunity to comment on all documents, material and other information provided him by the TAFE Industrial Relations Section; (iii) taking into consideration irrelevant material in forming his decision; (iv) failing to ensure that he acted independently of TAFE in making his decision as Prescribed Officer with regard to both merits and penalty; and (v) failure to provide the appellant with a copy of submissions on penalty made by TAFE Industrial Relations Section, thereby denying the appellant the opportunity to be heard in respect thereof. GREAT found that there was a lack of procedural fairness in the manner in which the charges were dealt with.!5 The procedural unfairness found was that all material received by the Prescribed Officer from TAFE was not conveyed to the appellant to permit him a chance to advance submissions regarding it. Had an inquiry been held such a process was expressly forbidden by Reg36(16). Thus procedural unfairness in the manner in which charges were dealt with was established. The question remained whether that resulted in the Prescribed Officer's decision becoming unlawful, resulting in it being required to be quashed. The appellant submitted that it did. TAFE submitted that any procedural defect could be overcome by GREAT itself conducting a full hearing on the merits in respect of the charges. Reference was made to the decisions in Calvin v Carr!6, Preston v Carmody and Ors!7 and Smith v Allen.!8 It appears from those cases that, in some circumstances, departures from principles of procedural fairness may be adequately cured by a full hearing on the merits. As Wilcox J said in Preston: "Curing" depended upon two circumstances: a full hearing of the case on review with an entitlement to present additional evidence, and that the reviewing Tribunal has power to substitute its own decision for that of the original decision maker." GREAT determined: "The Tribunal here considers that the manner adopted by the Prescribed Officer in informing himself in order to determine the truth or otherwise of the charges and in deciding upon an appropriate recommendation of penalty was not as fair as it should have been. However, the Tribunal considers that the earlier want of fairness can be cured by the Tribunal exercising its jurisdiction and conducting a formal hearing before determining the appeal on the merits."19 "Jess than ideal in terms of procedural fairness".2° Nonetheless it considered that any defect in that part of the process could be cured by the tribunal exercising its jurisdiction to hear and determine the appeal on the merits.?! The Tribunal then made what it described as "General Observations and Conclusion". 15. Appeal Book at 434. 16. (1979) 1 NSWLR 1. 17. (1993) 44 FCR 17. 18. (1993) 31 NSWLR 52. 19. Appeal Book at 436. 20. Appeal Book at 437. 21. Appeal Book at 437. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATIG@S COMMISSION [NO.3] (Cole JA) The Tribunal's conclusion was that the decisions the subject of the appeal were "not void for failure to observe the requirements of procedural fairness". It concluded that: "Having regard to the public interest in the need for the reasonably prompt determination of disciplinary action against persons in public employment and weighing this against the interests of the appellant in obtaining a fair hearing, the Tribunal considers this case would be best dealt with by proceeding to provide him with such a hearing on this appeal."22 Thus the Tribunal directed that the matter be listed as soon as possible for a "hearing on the merits". It was accepted on appeal that such an order was within GREAT's power. Preliminary to reaching its decision to afford the appellant a hearing on the merits before the tribunal, as distinct from quashing the findings and penalties with the likely result that the whole process would have to recommence, the Tribunal made some "general observations". It expressed the view that in serious cases, such as those involving allegations of sexual harassment, an inquiry may have been preferable to the alternative process adopted. Nonetheless, the process was not unlawful as it was expressly permitted by Reg36(7)(a). It commented that it was rare that there was a decision taken without any procedural flaw, giving as an example absence of strict compliance with a particular guideline. It is clear, in my view, that the tribunal was recognising, as Calvin v Carr23 recognised, that there can be a range or spectrum of departures from strict compliance with aspects of procedural fairness.24 Some were minor and insignificant: others may be much more serious. Some may be "cured" by a hearing on the merits before the Tribunal: others require no less than a quashing of the findings and penalty and a complete restart, if appropriate, to the process of consideration of the charges. It was for the Tribunal to consider where in the spectrum the departure from strict compliance with the processes of procedural fairness lay, and to decide, in the circumstances of each case, on the appropriate remedy. In this instance it formed the view that the process fell in a position in the spectrum where the appropriate remedy to give justice to the appellant was to afford him a new hearing on the merits before the Tribunal. In addressing these general considerations, the tribunal said: "The tribunal considers that there would need to be a gross breach of the requirements of natural justice or of the employer's own policies such as to render the disciplinary process undertaken virtually nugatory before a determination should be made that the decision flowing from such a process was void and of no effect."25 This statement maybe infelicitously phrased. Understood as describing a breach towards one end of the spectrum contemplated in Calvin v Carr, the statement does not disclose error. However it should not be taken as a correct statement of principle that it is only where "gross breach" of the requirements of natural justice are determined such that the disciplinary process was rendered "virtually nugatory", that a determination may be declared void. It is the function of the Tribunal, in the circumstances of each appeal, to consider whether justice requires an avoiding of the determination, or whether any injustice resulting from procedural unfairness is of such a nature that it can be properly cured by a new 22. Appeal Book at 441. 23. Supra. 24. (1979) 1 NSWLR 10-11. 25. Appeal book at 439. 26 UNREPORTED JUDGMENTS hearing on the merits before the Tribunal. As the Tribunal correctly pointed out, it would render the disciplinary process virtually unworkable if any minor departure from guidelines or processes rendered it necessary that the determination be quashed and the process recommenced. That is well illustrated in this instance where there were five pages of closely typed double columns of processes and procedures said to be applicable. GROUNDS OF APPEAL The principle ground of appeal argued was that the Tribunal erred in holding that it had the power to cure the lack of procedural fairness which it had found by considering the merits of the appeal and dealing with the issues in a formal hearing.?° The argument was that the nature of the departures from procedural fairness determined by the Tribunal were such that the departures sat at the higher end of the spectrum and thus required a quashing of the determination. The appellant seized upon statements made in the "general observations" that there would need to be "a gross breach of the requirements of natural justice or of the employer's own policies such as to render the disciplinary process undertaken virtually nugatory before a determination should be made that the decision flowing from such a process was void". He also seized upon the statement in the "general observations" that the fact that there was not a formal hearing, as was permitted by Reg36(7)(b), "would undoubtedly offend notions of justice and fairness in the minds of many persons in the community".27 These departures from procedural fairness constituted an error of law.28 This was not a case where the breaches of procedural fairness could be "cured" by a hearing by an appellant tribunal because: (a) the appellant had never accepted the lawfulness of the Prescribed Officer's decision to proceed otherwise than by an inquiry; (b) the subject matter of the disciplinary proceedings were serious, involving allegations of sexual harassment; and (c) on appeal, the onus is borne by the opponent to establish the legal and factual issues upon which his case is grounded. This was said to shift the onus to the appellant thus making it more appropriate for the decision of the Prescribed Officer to be set aside. At an initial inquiry under Reg36(7)(b), the onus would be on TAFE to establish the charges against him. In my opinion these grounds of appeal fail. Reg36 confers upon the Prescribed Officer the power to select the procedure for investigating the complaints. The Tribunal found no grounds upon the basis of absence of procedural fairness or otherwise for disturbing the Prescribed Officer's exercise of discretion. The determination of GREAT to resolve established departures from procedural fairness by granting the appellant a hearing on the merits before it, is not dependent upon the appellant having accepted the Prescribed Officer's selected method of determining the complaint. Even if an inquiry was preferable, as GREAT found, that did not result in GREAT being obliged to, or falling into error by not, quashing the determination. The remedy of a new hearing on the merits before it was an available remedy within power. 26. Ground 3B, 4, 5 and 7. 27. Appeal Book at 438. 28. Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 at 186. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATIGN COMMISSION [NO.3] (Cole JA) S42(1) of the Act requires that the employer's case be presented first. In essence the procedure will thus be the same as that which would have occurred at an inquiry. Although the onus may remain on the appellant to establish error, that onus has already been discharged by the finding of GREAT that procedural unfairness has occurred resulting in the new hearing. Thus, in reality, the proceedings before GREAT would involve TAFE in satisfying GREAT of the guilt of the appellant upon the charges laid. If guilt be established it would then be for the tribunal to determine penalty having heard submissions from each of TAFE and the appellant. The decision to hold a hearing on the merits was a decision within power. The Tribunal recognised that in deciding upon the appropriate method of dealing with established departure from procedural fairness, and having determined where it lay in the spectrum of such departures, regard must be had to balancing the public interest in the prompt determination of disciplinary proceedings against persons in public employment on the one hand, and the interests of the person affected by the departures from procedural fairness.29 The need for balancing those interests was noted by Mason J in Twist v Randwick Municipal Council3° where his Honour stated: "Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have *cured" a defect of natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases... In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and second}y. because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt dispatch of public business and balance that interest against the conterveiling (sic) interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal." In my opinion those principles are applicable. The appellant is to receive before GREAT a hearing on the merits which accords with concepts of natural justice. The hearing will be before a tribunal independent of TAFE, TAFE must present its case first, the evidence will be given on oath and will be subject to challenge by cross- examination. Witnesses are compellable and the proceedings are conducted as an inquiry de novo. GROUND 1 It was argued that the appellant was entitled to procedural fairness at a stage before formal charges of breaches of discipline were laid against him. 29. Appeal Book at 440. 30. (1976) 136 CLR 106 at 116. 28 UNREPORTED JUDGMENTS The appellant accepted that, usually, a person has no right to procedural fairness at the investigative stage and prior to the laying of charges. That concession was correctly made.3! However it was contended that there was an entitlement to procedural fairness where guidelines had been laid down by the employer. The argument was that by laying down such guidelines the employer indicated procedures which were to be followed and it was not entitled to depart from them. To do so constituted impermissible procedural unfairness because the employee had a legitimate expectation that the policies and procedures embodied in the guidelines would be followed. This submission was coupled with a submission that the Tribunal's finding that there had been substantial compliance with the policies was incorrect. In my opinion these submissions should not be rejected. The guidelines are neither delegated legislation nor are they mandatory. They provide for both conciliation and mediation of complaints where that is regarded as possible. If neither conciliation nor mediation result in agreement between the complainant and the respondent, a senior manager may elect to arbitrate. If the complaint is regarded as "so serious that the process of conciliation and mediation is not possible" the matter may be investigated "under the department disciplinary procedures". Under these procedures: "Principals may, at any time during this process seek the advice of the Director (Staff and EEO), Director (Colleges), Senior Industrial Officer, the EEO Co-ordinator or the Head Women's Co-ordination Unit".32 Such a process is inconsistent with the requirement that there be procedural fairness at the investigatory stage. This ground of appeal must also fail because the Tribunal found that: "The evidence shows that the policies published in the TAFE Gazette... were substantially complied with."33 That is a finding of fact which is not appellable in these proceedings, appeals being restricted to questions of law.34 That being so it is unnecessary to consider whether any departures from published policies would, in present circumstances, result in procedural unfairness, even if it could properly be said that any such departure at the investigatory stage constituted a breach of procedural fairness.35 GROUNDS 2 AND 3A The appellant contended that, after he was charged, he was denied procedural fairness in particular by the determination not to hold an inquiry as permitted by Reg36(7)(b). It was accepted that the Prescribed Officer had a discretion to choose between the alternative methods of proceeding but it was argued that the discretion miscarried because, having regard to the nature and seriousness of the charges, procedural fairness required that the appellant be given a right to cross-examine and test witnesses. Thus it was said that as the nature of the case inevitably required an inquiry if there was to be fairness to the appellant, the exercise of the discretion must have miscarried. The result demonstrated the error 31. See Rees and Ors v Crane [1994] 1 AER 833 at 843 and cases there cited. 32. Appeal Book at 53. 33. Appeal Book at 424. 34. S54 GREAT Act. 35. See Houcher v Minister for State and Immigration and Ethnic Affairs (1990) 169 CLR 648; Burns v TAFE Commissioner NSW (Unreported), Spender AJ, 15 November 1994. WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATI@N COMMISSION [NO.3] (Cole JA) in exercise of discretion. Complaint was also made that the Prescribed Officer was unduly influenced in making his decision by a TAFE Industrial Officer. These submissions were rightly rejected by GREAT. It rejected the contention that the decision not to hold an inquiry was in fact that of the industrial officer. It found that the Prescribed Officer made his own decision. The factual basis for the contention of procedural unfairness in reaching the decision not to hold an inquiry thus does not exist. Once it is accepted that a discretion to hold an inquiry or not exists as a matter of law, and that there was no procedural unfairness in relation to the exercise of that discretion, it cannot be said that the factual circumstances are such as to remove the right to exercise the discretion in the manner which occurred. So to hold would be to rewrite the regulation. Accordingly these grounds fail. It is somewhat incongruous that the appellant resists an independent hearing before GREAT upon the grounds that he ought to have had an independent hearing in the nature of an inquiry before the Prescribed Officer. A PREMATURE HEARING I disagree. In the interests of efficiency and saving of time and costs I shall give my reasons with my judgment. (FOLLOWING WAS DELIVERED AS PART OF FINAL JUDGMENT) For reasons delivered on 17 November 1995 Kirby P and Powell JA were of the view that this Court should hear this appeal when it was called on for hearing. I was of the view that we should not. I then indicated I would give my reasons for that view in this judgment. The appellant wants an independent hearing on the merits. GREAT have directed that he have one before it. GREAT has upheld his claim that, in some respects, he has been denied procedural fairness and that procedural unfairness can be overcome by a hearing on the merits which it has ordered. Once the hearing on the merits has occurred the appellant will either have been found guilty or acquitted. If he is acquitted no questions of appeal from GREAT's findings that any procedural fairness can be cured by a hearing on the merits would arise for consideration by the Court. If he is convicted, he has rights of appeal to this Court on questions of law. If GREAT was legally in error in determining that prior procedural unfairness could be cured by a hearing on the merits, any conviction after a hearing on the merits would necessarily be quashed. Thus the conducting of a hearing on the merits before the hearing of this appeal would deprive the appellant of no rights at all: it simply defers the timing of the hearing of any appeal, which may become completely unnecessary if the appellant is acquitted, as he stoutly maintains will result from a hearing on the merits. No question of leave to appeal or denial of rights of appeal arises. The only question which arises is whether this Court, in its discretion, should hear the appeal now or later. This Court frequently complains about its workload. In those circumstances good sense suggests that we should not hear appeals when there are unexhausted procedures which may result in the hearing of an appeal being unnecessary. That was the philosophy behind the decision of the majority in Ramton v Cassin.36 In my opinion that philosophy should prevail in circumstances where it has the prospect of reducing the workload of the Court of Appeal provided parties are not denied appellate rights. In my opinion the appeal should be dismissed with costs. 36. (Unreported) 25 September 1995. 30 UNREPORTED JUDGMENTS Appeal dismissed with costs. Counsel for the Appellant: BW Walker SC/JA Needham Solicitor for the Appellant: MacMahon Drake Balding Counsel for the Respondent: P Menzies QC/S Norton Solicitor for the Respondent: IV Knight, State Crown Solicitor