Ansell, J.M. v. Wells, L.J. & Ors [1982] FCA 198

Federal Court of Australia|1982-09-27|Before: Lockhart JJ, Franki J

ADMINISTRATIVE LAW - Judicial Review of Administrative Decisions - Public Service Promotions Appeal - Function and procedure of Promotions Appeal Committee - applicable principles of natural justice ~- Certiorari - Effect of delay and exercise of judicial discretion.

JOAN MARGARET ANSELL v. LEONIE JEAN WELLS, JAMES HOWARD LOWE, MARY JESSICA BENNETT

AUSTRALIAN CAPITAL TERRITORY ) NO. ACT G. 7 of 1982 DISTRICT REGISTRY )

ORDER JUDGES MAKING ORDER: Frankl, Davies and Lockhart JJ. DATE OR ORDER: 27September 1982 WHERE MADE: CANBERRA.

The appellant is to pay one half of the respondents' costs of the appeal.

AUSTRALIAN CAPITAL TERRITORY ) NO. ACT G. 7 of 1982 DISTRICT REGISTRY ) GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

FRANKI J. This is an appeal by Miss Joan Margaret Ansell from an

order of a Judge of the Supreme Court of the Australian Capital Territory discharging an order nisi for a writ of certiorari and

ordering the appellant to pay the taxed costs of the respondents

The appellant at all relevant times was a public servant

employed in the Commonwealth Department of Education ("the

Department") in Canberra. On 26 April 1977 she applied for

position number 2104, being for a clerk class 7 position in the Department. On 19 May 1977 a Mr. John Mungoven was listed in the Commonwealth Government Gazette as the provisional promotee for the position. On 7 June 1977 the appellant lodged an appeal to the Promotions Appeal Committee ("the Committee") against Mr. Mungoven's appointment. The appointment of Mr. Mungoven was made

pursuant to s.50(1) of the Public Service Act 1922 ("the Act").

Section 50(5) provides that such a promotion shall be provisional, and without increased salary pending confirmation of the promotion, and shall be subject to the right of appeal as provided in s.50. Section 50(5A), (5AA), (5AB), (5B), (8),(8A), (8B), (8C), (8D), (8E) and (8F) of the Act and regulations 109D and 109F, made under the Act, deal with Promotions Appeal

Under s.50(6) an appeal to a Promotions Appeal Committee may be made by an officer who considers that he 1s more entitled to promotion to the vacant office than the officer provisionally appointed, on the ground of (a) superior efficiency; or (b) equal

efficiency, and seniority. Section 50(8A) provides:

"(8A) Where, in relation to a provisional promotion, all the parties to the appeal proceedings perform their duties in the 1 State, a Promotions Appeal Committee for that State shall make full inquiries into the claims of those parties and shall-

(a) except where paragraph (b) applies - determine the appeal or appeals; or

(b) where the vacant office 1s one in respect of which the rate of salary, or the

maximum rate of salary, exceeds such rate as is prescribed for the purposes of this sub-section - make a report to the Board on the claims of those parties."

Section 50(8C), (8D), (8E) and (8F) deals with the position where

the parties to the appeal proceedings do not all perform their

duties in the one state. Section 50(4) and (4A) provides: "(4) Subject to sub-section (4A), in this section 'efficiency' means special

qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct, and, in the case of an officer who 1s a returned soldier, includes such efficiency as, in the opinion of the Permanent Head, the Board or a Promotions Appeal Committee, as the case may be, he would have attained but for his absence on active service.

(4A) Where, with the approval of the Board, the Permanent Head of a Department has determined that it is desirable that this sub- section shall apply in relation to the filling of a vacancy in an office in the Department, 'efficiency' shall, in relation to the filling of the vacancy, be deemed to include special qualifications and aptitude for the discharge of the duties of higher offices in the Department."

The rule nisi for a writ of certiorari was based upon an allegation of a denial of natural justice upon the grounds firstly, that a member of the committee was biased against Miss Ansell and secondly, that "the committee did not disclose to Miss Ansell, prior to making the decision, material relevant to that Gecision thereby depriving her of answering the material by

The learned trial Judge rejected the claim of bias but found that there had been a denial of natural justice upon the ground that certain material had not been made available to Miss Ansell before the committee made its decision. The material which the trial Judge considered ought to have been so disclosed was (a) the whole of a departmental report dated 19 August 1977, (b) a written statement made to the committee by Mr. Mungoven and (c) the oral submissions of Mr. Mungoven and his answers to questions at the hearing by the committee. The trial Judge described this material as material put forward on behalf of the provisional promotee. It will be seen that the trial Judge held that the failure to make available material put forward on behalf of the provisional promotee constituted a denial of natural justice. However, the trial Judge ultimately discharged

The appeal to this court is based upon the finding in relation to delay and upon a ground "that his Honour did not hold that a report to the said committee adverse to the Prosecutrix was so dealt with as to deprive the Prosecutrix of a reasonable opportunity to answer it and thus constituted a

"(a) That His Honour Mr Justice Connor erred an law in holding that it was incumbent upon the Respondents to disclose to each party to an appeal before a Promotions Appeal Committee the substance of the case of the other parties to the appeal.

(b) That His Honour erred in law in finding that the Respondents breached the rules of natural justice in not disclosing to the appellant material presented to the Promotions Appeal Committee by or on behalf of the provisional promotee."

The respondents in this appeal were the three members of the Promotions Appeal Committee. The third respondent was the chairwoman of the committee, the first respondent was the member nominated by the Department of Education, and the second

respondent was the member nominated by the Administrative and

The learned trial judge followed the decision of Ellicott J in Finch v. Goldstein (1981) 36 A.L.R. 287 where his Honour considered the effect of s.50(6) and (8A). He cited the

"Under the Act an appeal against a provisional promotion gives rise to what are referred to as 'appeal proceedings'. These proceedings have 'parties' to them who are the officer provisionally promoted and the appellant or appellants. The issues in an appeal under the Act are clearly defined. They are either the superior efficiency of the appellant over the officer promoted or the equal efficiency of the appellant and seniority. The notice of appeal and any documents lodged in connection with the appeal are to be sent to the Promotions Appeal Committee. It 1s then charged with the responsibility, in a case such as this where both parties perform their

duties in one State, of making 'full inquiries' into the claims of those parties and of determining the appeal. Its decision

bound to promote the appellant or confirm the provisional promotion depending on whether the appeal is allowed or dismissed by the Committee."

"The duty of the Committee 1s to make full inquiries into the claims of the parties. In a@ case such as this, the issue is whether one party (the appellant) is of superior effiency to the other (the officer promoted) and this will inevitably involve weighing one person's efficiency against that of the other. Each is, in my view, entitled to an opportunity to make his or her case on this issue. In order to do so, I think it is fundamental that each be entitled to know in substance what 1s being put on behalf of the other, for without such knowledge, how could a party adequately put a case that he or she 1s superior in efficiency to the other. Where as here superior eff1lency 1s the issue the alleged efficiency of one is in a real sense part of what is put against the other."

It is not necessary to consider the proceedings before the Committee in detail. The Department addressed a report, extending over some 3 and a half pages, to the Chairman of the Committee. This report dealt with the salary, nature of the duties and qualifications required for the position and it contained a section entitled "Position Profile and Profile of Person Sought". It also contained a section of some 30 to 40 lines dealing with the provisional promotee and a similar section of about the same length dealing with the appellant. The report also stated that there were 36 applicants for the position , that Mr. Mungoven had been placed at the head of the field and that

The appellant made no request for, and was not supplied with, a copy of the departmental report at any time prior to the Committee giving its decision. The only part of the report which was disclosed to her was that part setting out the departmental opinion of her and a part which stated: "Departmental applicants were counselled on any matters which may have mitigated against their selection". Those two parts of the report were read to her

Before us counsel for the respondents stated that he had no instructions to raise the question whether the Committee had to abide by the rules of natural justice. The case before the learned trial Judge was conducted upon the basis that 'the Promotions Appeal Committee had been required to afford the appellant a fair hearing 1n accordance with the rules of natural justice. Senior counsel for the appellant did not make any submissions which went to the issue of whether a full enquiry was made or whether any failure to make a full enquiry constituted a

denial of natural justice. See generally, the judgment of the

Full Court of this Court in Dixon v. Commonwealth of Australia

In my opinion, the Committee, in making the full enquiry which it 1s required to make under the Act, has to act fairly and is required to act according to appropriate principles of natural justice. However, these principles are flexible and may vary in

each case. The High Court, in a joint judgment of seven Judges,

in The Queen v. Commonwealth Conciliation and Arbitration

Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546 at

"But at must borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All E.R. 109 at p.118:

'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the

subject matter that is being dealt with, and so forth.'

This passage was approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 W.L.R. 223, and was used by Kitto J. in Mobil Oil Australia Pty. Ltd. Vv. Federal Commissioner of Taxation (1963) 113 C.L.R. 475, at p.504. There his Honour observed:

'What the law reguires in the discharge of a quasi-judicial function is judicial

fairness ... What is fair in a given situation depends upon the circumstances. '

We agree with the foregoing statements of the relevant law. It as plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance."

It must be borné in mind that the legislation under consideration is in the context of dealing with appeals against promotions in the public service and that the inguiry is a departmental inquiry. The major purpose of the legislation is to

ensure, in the public interest, that the most efficient person is

appointed to the position. There 1s, of course, a need to ensure that the promotion should be made in a way which is fair, that it is likely to promote harmony in the public service, and that public servants have no legitimate grievance in relation to the

selection of the person to be promoted to a vacant position.

It is, however, necessary to have some regard to practical questions in considering the method by which an appeals tribunal should conduct an enquiry. I have read the reasons for Judgment prepared by Davies J. in this case. In general I agree with what is said ain that judgment concerning the propriety of a process of separate interview of the parties and enquiry of

The members of the Committee enjoy no statutory protection or immunity. There is no obligation on the Committee to hold its anquiry in public, it is not empowered to take evidence on oath or affirmation, it has no statutory power to compel the attendance of witnesses. The Act does not provide that persons whom it calls before 1t are obliged to answer questions truthfully, or indeed to answer them at all, or that "parties" are entitled to legal representation. Regulation 109F requires the tribunal "... to make its inquiries without regard

It 1s perfectly clear that certain persons who might be called before the Committee may be very reluctant to make

statements to the Committee 1f their names are to be associated

In many cases, and indeed in this particular case, it 1s clear that there was a serious likelihood of substantial ill feeling existing between the applicant and certain people to whom the Committee might have been expected to direct inquiries. It is difficult to see how these inquiries could be made in the

presence of the applicant particularly if the applicant was

It 1s essential to bear in mind that the Committee could not be expected to be made up of lawyers, nor indeed to include any member who was a lawyer. I consider it important that, unless desirable in the interests of justice, the operation of a Committee should not be rendered substantially impractical by requirements introduced under the umbrella of the principles of natural justice. The requirements of natural justice applicable in proceedings before a committee do not necessarily extend beyond making certain that each party is aware of the substance of the case against him (including the case for the other party) and giving each party an opportunity to put his case to the committee. I have not overlooked General Medical Council v. Spackman [1943] A.c. 627. However, the nature and functions of the General Medical Council were very different from those of the

It was not suggested that there was any reason why the whole of the departmental report to the chairman of the

Committee should not have been made available to the appellant.

In general, unless there is some compelling reason to the contrary, the whole of the departmental report should always be made available to an appellant as long before the hearing as is reasonably practicable. I do not regard the fa21lure to request access to the whole of this report as critical. I agree with the learned Judge that the relevant requirements of natural justice were not satisfied in relation to that part of the departmental report which did not deal with the appellant. Merely reading the report to the appellant, instead of providing her with a copy, is not a satisfactory procedure, and, of itself, in this case it may have been a sufficient departure from fair practice to constitute

Where the question of comparative efficiency is involved I consider that the substance of matters put forward about or by the "other party" must be known in order to enable each party to put her case. I consider that at least the substance of the written statement by Mr. Mungoven and the substance of any relevant oral submissions and answers to questions at the hearing before the committee should have been available to the appellant. By this I do not mean that a copy of the written statement, or the words of the oral submissions and answers should have been provided to the appellant, but that the substance of anything

An examination of the provisions of s.50 concerning

appeals where "the parties" perform their duties in different

states shows the difficulty, or impossibility, of conducting such proceedings in the way proceedings are conducted in a court of law. Fitzgerald J. examined some of those difficulties in Dawes

v. Gesling & Ors. (delivered 23 August 1982). Notwithstanding

the judgment in Finch v. Goldstein, supra, I have some difficulty

in visualising any case before a Promotions Appeal Committee where the requirement to observe principles of natural justice would necessarily require a committee to allow cross-

examination of witnesses or cross-examination by one party of the other party. Since that question does not arise in this appeal it is not appropriate to express any firm view on it. I appreciate that some of the views which I have stated may differ from those expressed by the learned Judge in Finch v. Goldstein, supra. I consider that the views of Lord Loreburn at p.182 in

Board of Education v. Rice [1911] A.c. 179 and Lord Denning M.R.

at p.400 in In re Permagon Press Ltd. [1971] 1 Ch. 388 are very

helpful in considering the extent of the principles of natural

The legislation in Hamblin v. Duffy (No. 2) (1981) 37 A.L.R. 297 was very different from that which we are considering

and, for that reason, I do not regard the views expressed therein

It 1s next necessary to consider the question of delay.

The judgment in the Supreme Court rested upon the view that the delay of three and a half years from 17 October 1977 to 20 February 1981 was fatal. I do not need to set out the facts

in relation to delay since I agree with the way they are stated

It is perfectly clear that the grant or refusal of a rule absolute for certiorari is always a matter of Judicial

discretion. See generally Waterside Workers' Federation of

Australia v. Gilchrist, Watt and Sanderson Ltd. (1924) 34 C.L.R.

482 per Isaacs and Rich JJ at p.517; Reg. v. Patents Appeal

Tribunal; Ex parte J.R. Geigy S.A. (1963) 2 Q.B.728 per Lord

Parker C.J. at p.733, with whom Winn and Lawton JJ. agreed, and

de Smith's Judicial Review of Administrative Action 4th ed.

The question of delay and the exercise of discretion was

also considered in R v. Herrod, Ex parte Leeds City District

Council [1976] 1 Q.B. 540 at, for example, pp.557, 570, and 574. In the House of Lords [1978] A.C. 403 some doubt was expressed

concerning the views to which I have just referred (see also de

The main argument advanced by the appellant was that, rightly or wrongly, she thought that she should exhaust any alternative administrative remedies before applying for a

The alleged alternative remedy placed in the forefront of the argument was reg.6 of the Public Service Regulations. However, it was conceded during argument that this regulation did not provide any separate right and that it did not give rise to an alternative remedy. In the Supreme Court this regulation was held to do no more than "lay down the channels of communication which any officer must use in making an application in respect of any matter affecting him as an officer of the Service". I agree. The regulation certainly does not provide an alternative remedy.

Davies J. has expressed the same view in Gourgaud v. Lawton

(unreported, 24 June 1982) a judgment delivered since the matter

The existence of an alternative remedy does not require the Court to refuse certiorari. de Smith, supra, at p.425 set

"An applicant for certiorari 1s not normally obliged to have exhausted his rights of appeal within the administrative hierarchy or to have exercised any right of appeal to a court of law; but 1t 1s not the practice of the court to exercise its discretion in favour of an applicant if he has already lodged an appeal to a court against the decision and the appeal 1s pending."

Francis Ltd. v. Patents Appeal Tribunal [1959] A.C. 663 where

Lord Denning at p.696 mentioned the significance of an

alternative remedy. This case has been considered by the Court

of Appeal in Reg. v. Patents Appeal Tribunal; Ex parte J.R.

Geigy S.A., supra, at p.734 where certiorari was granted in a case where the Court held no satisfactory alternative remedy was open. I do not consider either of these cases help the appellant. Neither deals with the question of delay and the existence of an alternative remedy cannot be the determining factor. Likewise the belief of the appellant in the existence of an alternative remedy 1s not a determining factor. It also appears that the appellant was advised by the Board, at least by

May 1978, that it had no power to set aside the determination of

In many jurisdictions the rules of court provide for a time within which an application for certiorari must be made. Examples are Order 55 rule 17 of the Iligh Court Rules, Order 53 rule 7 of the Rules of the Supreme Court of Victoria and Order 53 rule 4 of the Rules of the Supreme Court (U.K.). A period of three or six months appears common. No time limit was prescribed in Order 55 of the Rules of the Supreme Court of the Australian

It is clear that undue delay may be a ground for refusing certiorari in certain circumstances. See generally de

In R v. O'Sullivan; Ex parte Clarke [1967] W.A.R. 168,

the Full Court of the Supreme Court of Western Australia heard a

somewhat similar case involving an application for certiorari to be directed to the Government Employees' Promotions Appeal Board in that State. A delay of more than three months was considered to be substantial and an important factor in the exercise of the

Court's discretion to refuse relief (Wolff C.J. at p.171 and

Various other matters were raised before us. Senior counsel for the appellant suggested that the decision of the Committee was void and therefore the appeal had not been "disallowed" within the meaning of s.50(10) of the Act and so the confirmation which the Public Service Board made in October 1977 of Mr. Mungoven's provisional promotion was a nullity. The Public Service Board and Mr. Mungoven are not parties to these proceedings so I would not make any order which would alter their positions without providing an opportunity for them to be heard. However, Senior counsel for the appellant submitted that it was not necessary for the Court to decide whether the decision of the

Committee was void but that it should simply uphold the appeal.

The confirmation of Mr. Mungoven's original appointment entitled him to be paid the salary for that position and to gain Other advantages. Changes have taken place in the staffing of the department since the decision of the Committee and serious problems could be expected to have arisen 1f the order nisi had been made absolute. Obviously vacant positions in the Public Service should be filled expeditiously unless some good reason

I agree with the way that the Supreme Court exercised its discretion in holding that the delay of three and a half

years was fatal in the circumstances of this case. That Court in

my view correctly paid regard to the position of Mr. Mungoven and

Were I of a different opinion concerning the exercise of

discretion I would have to consider the principles which lay down

the manner in which an appellate Court should deal with an appeal

from the exercise of a judicial discretion. See Gronow v. Gronow

I would dismiss the appeal. I would order the appellant to pay half the respondents' costs. A substantial amount of time

was devoted to a consideration of the respondents' notice of

contention and the order I propose makes allowance for this

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Appellant

AND: LEONIE JEAN WELLS Firstnamed Respondent JAMES HOWARD LOWE Secondnamed Respondent MARY JESSICA BENNETT

DAVIES J : I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Franki. For the reasons stated by his Honour, the learned trial Judge correctly exercised his discretion when he declined the order absolute for certiorari. There was undue delay on the part of the appellant.

Moreover, Mr. Mungoven, whose promotion it was sought to set aside, waS not joined as a party to the proceedings or in any other manner afforded an opportunity to support the challenged decision or to explain precisely how the setting aside of the decision after the lapse of time would affect him adversely which, of necessity, it must have done. In all the circumstances, it would have been unjust to grant the relief sought. The learned trial Judge was plainly correct when he refused the order.

That 1s sufficient to dispose of the appeal. However, as the function and procedures of a Promotions Appeal Committee were discussed during the course of the hearing, and as my brothers have dealt with this matter, it may be useful 1f I express my-own views thereon.

There are a number of elements in the legislative structure which suggest that ordinarily the essence of the task of a Promotions Appeal Committee is not to adjudicate upon evidence received by the Committee but rather to assess the relative efficiencies of the parties to the appeal after interviewing each party and taking into account the views of other people. The Committee is to form a view as to the relative efficiency of the parties. Traditionally this task has been achieved through interview of the contending officers and inquiry rather than through the weighing up of evidence adduced. Moreover, the Promotions Appeal Committees are constituted by persons who may be well qualified to assess the relative efficiencies of contenders for a position through an interview procedure but not be so well qualified to undertake a judicial type hearing. Each Committee 1s comprised of a chairman appointed by the Board, an officer nominated by the Permanent Head of the Department in which the provisional promotion has been made and an officer nominated by the appropriate organisation. The officer nominated by the Permanent Head and the officer nominated by the appropriate organisation

may have some knowledge of the contenders for the vacant position

and some knowledge of the qualities required for the tasks to be performed. The chairman appointed by the Board will ordinarily be an experienced administrator from outside the Department concerned. All these people may draw upon their own knowledge and experience. Further, when the parties to the proceedings do not all perform their duties in the one State, the party or parties in one State will have his or their claim or claims considered by a Promotions Appeal Committee for that State and the party or parties in another State will have his or their claim or claims considered by a Promotions Appeal Committee for that State. Recommendations of the Promotions Appeal Committees wlil then be forwarded to a Central Promotions Appeal Committee which is required to examine the reports and to make such further unquiries, 1f any, aS 1t thinks necessary. And, more than one officer may appeal with the result that there may be two or more appeals with respect to the one position. Each appeal will be made on the ground of superior efficiency or equal efficiency and senlority. In this event, 1f 1t is considered that two or more appellants have established the grounds of their appeal, the appeal of only one of the appellants shall be allowed, that appellant being the one considered to have the best claim to promotion to the vacant office. Judicial procedure was not designed for tasks such as these. Moreover, the Committee and any persons appearing before it are not conferred statutory protection in relation to matters said or done in the course of the hearing and the Committee is given neither the power to take evidence on oath nor the power to compel the attendance of a witness. Rather, it is directed to make its inquiries without regard to legal forms or solemnities.

Thus, in the present case, the Promotions Appeal Committee chose to carry out its function by interviewing the parties separately from each other and by making inquiry of referees. There was nothing in that procedure which in my opinion was inconsistent with the performance of the function which the Committee had to perform. This was not a case, if ever there may be one, where

there was some fact in issue which adequately and fairly could be determined only through a judicial type hearing, whether inquisitorial or adversarial. Nothing of that nature arose in the present case. Indeed, there was nothing in the facts of the present case to indicate that a process of separate interview of the parties and inquiry of referees was not the most appropriate means by which the Committee could fulfil its function. If the reasons of Ellicott J in Finch v Goldstein, 36 ALR 287, express a

contrary view, I would not to that extent follow them.

However, that is not to say that the Committee was not under a duty to the contending officers to adopt procedures which were fair to them. They were parties to the proceedings and it was their claims which were being inquired into in the appeal. Their unterests, their status in the Public Service were affected by the appeal. And, the legislature has provided that a Promotions Appeal Committee "Shall make full inquiries". A Committee would not make full inquiry if it did not act fairly and give to each of the contenders a fair opportunity to put his or her case. I agree entirely with the statements of Ellicott J in Finch v Goldstein, at pp.299 and 300-1, that,

"Because the decisions of Promotions Appeal Committees under the Act affect the promotion and advancement of individual public servants in the Public Service, I think the proper protection of their rights at least demands that those involved in appeal proceedings have the right to know the case put against them as well as the opportunity to state thelr case either orally or in writing to the Committee dealing with the matter (cf Dixon v Commonwealth, 18 June 1981, Bowen CJ, Deane and Kelly JJ (unreported); Hamblin v Duffy (1981) 34 ALR 333; Perkins v Cuthill (1981) 34 ALR 669).

On the approach to the Act which I have adopted a Promotions Appeal Committee in a case such as this has two basic duties - to make full inquiries into the claims of the parties and to act fairly to the Parties in so doing. It could be said that, in a sense, tt has only one duty, namely, to make full inguir1res and that its duty to act fairly 1s implicit in fulfilling that duty because 1t cannot

make full inquiries into the claims of the parties unless it acts fairly.

In carrying out its duty to act fairly the Committee, aS I have already indicated, at least has a duty to ensure that each party knows the case put against him or her and an opportunity to put his or her case to the Committee. eee

The duty of the Committee is to make full inquiries into the claims of the parties. In a case such as this, the iussue is whether one party (the appellant) is of superior efficiency to the other (the officer promoted) and this will inevitably involve weighing one person's efficiency against that of the other. Each is, in my view, entitled to an opportunity to make his or her case on this issue. In order to do so, I think it is fundamental that each be entitled to know in substance what is being put on behalf of the other, for without such knowledge, how could a party adequately put a case that he or she is superior in efficiency to the other. Where as here superior efficiency is the issue the alleged efficiency of

one is in a real sense part of what is put against the other."

As the issue for consideration 1s that of relative efficiency, each party must be given a fair opportunity not only to promote his own efficiency but also to state why he considers that efficiency to be superior to that of the other contender for the position. What must be done in each particular case will depend upon the circumstances of the case. As Tucker LJ said in Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 :

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

But, ordinarily, a contender for a position will not have an Opportunity to put fairly his or her case on relative efficiency unless he or she 1s given due notice of the substance of the case put by the other contender for the position. And, ordinarily, a contender for a position will not have a fair opportunity to put a case unless he or she 1S given due notice of the adverse

factors which will be considered against him or her. Such notice should be given in time sufficient to enable the party

That is not to say that rules as to confidentiality should not apply. Referees may prefer that their opinions be confidential. Other persons in the Department who have honestly given an opinion as to competence may prefer that the opinion not be disclosed, for disclosure may disrupt the continuing harmony of the Department. Questions of confidentiality must, however, be dealt with in the circumstances of the particular case. The rules of natural justice do not lay down precise criteria. They simply provide that the administrator must act fairly in the particular circumstances of the case. While the parties should know the course which the Committee adopts and the material which 1t takes into account, the Committee, as an administrative body, has a discretion as to what 1t does and what it does not disclose to them. In exercising this discretion, the Committee may take into account considerations of fairness to other people who may be adversely affected by disclosure to the parties of information given to the Committee. See Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation, (1962-1963) 113 CLR 475. As Fitzgerald J said in Dawes v Gesling & Others (delivered 23 August 1982),

"IT agree that natural justice will generally require that each party to an appeal before a Promotions Appeal Committee will be entitled to know the substance of the case for the other party or parties. However, in my opinion, the nature and extent of what natural justice requires to be disclosed, when disclosure 1s desired by a party, will depend on the circumstances as a whole, including what each other party puts forward as his or her case. Tt may be generally most satisfactory, and least likely to produce further disputation, if everything desired is revealed. However, there may be various reasons why that 1s not always appropriate; 1t will not necessarily

follow that there has been a breach of natural justice."

In the present case, the fa1rlure to disclose to Miss Ansell prior to the interview the contents of the report dated 19 August 1977 given by the Secretary of the relevant Department to the Chairman of the Promotions Appeal Committee led to the very problem which the rules of natural justice seek to avoid. The report summarised the relevant facts and the Department's view of the contending parties. It provided significant material for the Committee to take into account and it expressed a view which strongly favoured Mr. Mungoven. There appears to be nothing in the report which could not have been disclosed to Miss Ansell. As to the provisional promotee, Mr. Mungoven, the report said : "He was rated a very suitable candidate for promotion to the position in question."

There was nothing in the report concerning Mr. Mungoven which could not have been disclosed. Moreover, there was no reason why there should not have been disclosed to Miss Ansell the fact that, of the original applicants for the position, Mr. Mungoven had been placed at the head of the field while Miss Ansell had been placed sixth. Nor does 1t seem to me that there was any reason why the criticisms or limitations that were stated in the report with respect to Miss Ansell's work should not have been disclosed to her, or to the other party. If Miss Ansell had known of those matters before she had gone to her interview, she would have been fully prepared.

However, Miss Ansell was not advised of the contents of the Secretary's report and was not aware, prior to the interview, of the substance of the matters contained therein. Nor was she aware of the incorrect statement therein that "Departmental applicants were counselled on any matters which may have militated against their selection". In the result, the interview which Miss Ansell had with the Promotions Appeal Committee was an unsatisfactory and unfair interview so far as she was concerned. As she deposed in her affidavit of 18 December 1980 :

and negative comments which were contained in the report denigratory of my capacity and performance.

I told the Committee that the report was untrue and asked the Committee to consult with Mrs Cotton about the truth of facts relevent (Sic} to my performance when she returned from vacation on Monday the 10th day of October 1977. The report had said that I had been previously counselled on my shortcomings and I told the Committee that I had not been counselled at all."

What happened at the interview was important for the Promotions Appeal Committee was assessing the relative efficiencies of the parties by a procedure of interview of the parties and inquiry of referees. In her interview, Miss Ansell performed badly because she was taken by surprise by allegations which she had not expected. Furthermore, although Miss Ansell then said that she had not been counselled, there was a query in the Committee's mind concerning this. Before the interview, one member of the Committee, the firstnamed respondent, had said to the other members of the Committee that, as far as she was aware, Miss Ansell had been properly counselled. So, not only did the interview not draw out the best of Miss Ansell's efficiency but, during it, Miss Ansell's veracity was questioned and the matter of counselling assumed significance. The firstnamed respondent has stated in an affidavit sworn 15 May 1981

"8. After the interview concluded there was some further discussion between the members of the committee as to whether the prosecutrix had been properly counselled. I said that as far as I was aware the prosecutrix had been properly counselled,

The secondnamed respondent has stated in an affidavit sworn 15 May 1981 :

"6. At some stage during the hearing of the appeal the Chairman mentioned that she was not sure that the prosecutrix had been counselled properly by her Department. I mentioned that sometimes there were difficulties in counselling certain people and that on occasions persons did not

recognise that a superior officer was endeavouring to counsel them.

I cannot recall whether the word 'unfair' was ever used at any stage of the appeal by any person but I do recall that the Chairman stated that she felt that there appeared to be a possible basis for feeling that the prosecutrix had not been counselled adequately. I said that possibly if she had been counselled she had evidently not understood what she had been told."

Thus, the issue as to counselling necessarily detracted from the

Committee's perception of Miss Ansell's efficiency, though the fact is now undisputed that Miss Ansell had not been counselled.

Necessarily, the atmosphere of the interview was inimical to the presentation of Miss Anseli's case. The problem arose through the failure to disclose to Miss Ansell prior to the interview the substance of the material before the Committee and the substance of the matters which she had to meet. In my opinion, the failure to make this disclosure was unfair to her and breached the rules of natural justice. In the result, there was not a full and fair inquiry into Miss Ansell's efficiency or into the relative efficiencies of Miss Ansell and Mr. Mungoven.

However, because of delay, the order nisi was properly discharged

and this appeal must be dismissed. I agree with the order as to costs proposed by Mr. Justice Frankl.

1 certify that this and the q preceding pages are a true copy of the reasons for

CORAM: FRANKI, DAVIES & LOCKHART JJ. 27 SEPTEMBER 1982

LOCKHART J. The questions to be determined in this appeal are twofold:

first, the nature of an appeal under s. 50 of the Public Service Act

1950 ("the Act") by an officer of the Public Service against the

provisional promotion of a fellow officer to a vacant office and, second, the duties to be observed by Promotions Appeal Committees in

Joan Margaret Ansell ("the appellant") is a public servant

employed in the Commonwealth Department of Education in Canberra. On

26 April 1977 she applied for Position No. 2104 being a Clerk Class 7 position in the department. On 19 May 1977, one John Mungoven was listed in the Gazette as the provisional promotee for the position. On 7 dune 1977 the appellant lodged an appeal against Mr. Mungoven's appointment. The appeal was heard by a Promotions Appeal Committee, ("the Committee") comprising the three respondents, on 5 and 13 October

On 17 October 1977 the appellant was informed that her appeal

It was not until 20 February 1981 that the appellant applied to the Supreme Court of the Australian Capital Territory for the issue of a Writ of Certiorari to quash the decision of the Committee. On 27 March 1981 the Supreme Court granted an order nisi, but after a hearing 1n December 1981, the Supreme Court discharged the order nisi on 22

January 1982 and ordered the appellant to pay the respondents' costs.

One of the grounds on which the appellant sought to challenge the Committee's decision before the Supreme Court was that there was a departmental report which contained material adverse to her, and that her attention was not drawn to the adverse parts until the hearing of

her appeal when she was being interviewed by the Committee on 5 October

"Her supervisor has found that, whilst willing and conscientious, she has had to put more time and effort into coping with her workload than might normally have been cxpected. She has required fairly frequent guidance in establishing priorities and in identifying the more important issues in the day-to-day problems that have presented themselves. In her communications, both oral and written, she has also had some difficulty in determining which

material to include and which to omit as irrevelant

her effectiveness in the advisory/supervisory aspects of State Office liaison, where clear

decisions are needed. Because of these limitations it has not so far been possible to fully implement the plan to relieve the Sub-section head of the major involvement student arrangements.

Miss Ansell 1s an able and hard-working officer, with a very good background in education. However, with her limited experience in the Public Service, she is not regarded at this stage as being sufficiently strong in the kinds of administrative

skill required for permanent occupancy of this position."

The Supreme Court held that 1t would have been fairer for the Committee to have supplied the appellant with a copy of the adverse

part of the report, and that bringing 1t to her attention for the first

time by reading it to her at the hearing of the appeal was an undesirable way to acquaint her with its contents. However, the

"She appears, however, to have grasped the essentials of the passage because she immediately

told the Committee, amongst other things, that the criticisms made of her in the report had never been mentioned to her and that her supervisors would not support the views contained in the report; and arrangements were made to contact referees in respect of the matters mentioned in the report."

The Supreme Court held that, in all the circumstances, there

was no departure from the rules of natural justice.

Another ground of complaint by the appellant before the

Supreme Court was that the Committee failed to observe the rules of

natural justice by not disclosing to her the following material bearing

~4- on the Committee's decision relating to the provisional promotee: a

portion of the departmental report of 19 August 1977 which expressly

At a glance

Court

Decision date

Before

Source

Judgment (413 paragraphs)

against the promotion of fellow officers. It 1s to Promotions Appeal

Cases Cited (2)