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

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

2. 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.

8. 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

1977. 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

referred to the promotee; a written statement made by him to the Committee; and oral submissions and answers given by him to questions at the hearing by the Committee. The Supreme Court held that the

appeliant had made out her case in this respect. . The Supreme Court found against the appellant on the question

of delay - a delay of three years and four months from 17 October 1977

when the appellant was informed that her appeal to the Committee was

unsuccessful, to 20 February 1981 when she applied for an order nisi

In argument before this Court on appeal, counsel for the

appellant challenged the Supreme Court's finding that in all the circumstances there was no departure from the rules of natural justice; and finding that the delay by the appellant in applying for the writ of

The respondents filed a notice of contention in this appeal

contesting the following findings of the Supreme Court:-

(a) 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 party

(b) That the respondents infringed the rules of natural justice by not disclosing to the appellant the material presented to the Committee by or on behalf of the

It is necessary to refer to the relevant provisions of the

Act properly to understand the guestions which arise in this case.

Where a vacancy exists in an office in any Division of the Public Service other than the First Division, the Permanent Head may, subject to the Act, transfer or promote an officer to f111 the vacancy (s. 50 (1) ). In selecting an officer for promotion, consideration should be given first to the relative efficiency and, in the event of an equality of efficiency of two or more officers, then to the relative

seniority, of the officers available for promotion (sub-s. (3) ).

Any promotion is provisional and without increased salary

pending confirmation and is subject to the right of appeal provided in s. 50 (sub-s. (5) ). Sub-section (6) provides:- "(6) An appeal under this section shall be made in

and may, subject to sub-section (6A) be made by any officer who considers that he is more entitled to

promotion to the vacant office than the officer provisionally promoted, on the ground of -

Sub~section (4) of s. 50 defines "efficiency" as meaning

special qualifications and aptitude for the discharge of the duties of

-6~- the office to be filled, together with merit, diligence and good

Sub-section (5A) provides for the constitution of such Promotions Appeal Committees for each State as are required and such

Central Promotions Appeal Committees as are required.

Where an appeal has, or appeals have, been duly made in

(a) the person with whom under the regulations, any such appeal has been lodged shall forward notice of the appeal and any document by which the appeal was instituted and any other document received by him in

(b) the Board of Commissioners ("the Board") shall cause to be forwarded to a Promotions Appeal Committee full particulars of any such appeal that is appropriate in relation to the appeal having regard to the relevant

Where the parties to the "appeal proceedings" all perform their duties in the one State, a Promotions Appeal] Committee for that State shall make full inquiries into the claims of the parties and

(a) except where (b) below applies ~ determine the appeal 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 sub-s. (8A) - make a report to the Board on the claims of those

Upon receipt of the lastmentioned report the Board .

shall determine the appeal or appeals (sub-s. (8B)).

Where the parties to the "appeal proceedings" do not all perform their duties in the one State, a Promotions Appeal Committee for the State in which a party performs his duties or two or more parties perform their duties is required to make ful] inquiries into

and make a report to the Board on the claims of that party or those

Upon receipt of all the reports the Board refers them to a Central Promotions Appeal Committee which 1s required to examine them. It may make such further inquiries, 1f any, as it thinks necessary into

the claims of the parties to the "appeal proceedings" and shall:-

(i) where the office concerned is an office referred to in s. 50 (8A) (b) make a report to the Board on the claims

(i1) in any other case - determine the appeal or appeals

Upon receipt of a report under (1), the Board is to determine

For the purposes cf s. 50 the parties to the appeal

proceedings are the officer provisionally promoted and the appellant or

Where an appeal is allowed pursuant to s. 50 the Board shali cancel the provisional promotion and promote the appellant to the

The Board is empowered to make regulations for regulating the procedure, inter alia, of Promotions Appeal Committees (s. 97 (1) (h)). The Board made regulation 109F which provides:-

"It shall be the duty of a Promotions Appeal Committee or a Central Promotions Appeal Committee

to make its inquiries without regard to legal forms or solemnities."

Provision 18 made in the regulations for appeals against provisional

promotions (Reg. 109) and for the constitution of Promotions Appeal

Thus the role of Promotions Appeal Committees varies

according to a number of circumstances, including whether the appellant

oer appellants and the officer provisionally promoted perform their duties in the same or different States. In the present case the officer and the appellant perform their duties in the Australian Capital Territory and s. 50 (8A) (b) does not apply. Hence the function of the Promotions Appeal Committee in the present case 1s to

make full inquiries into the claims of the parties and 'to determine

Where a statute confers power upon a person Or body to make a decision affecting the rights, property or legitimate expectations of a person, prima facie that power must be exercised in accordance with .the

rules of natural justice or the duty to be fair: Twist v. The Council

of the Municipality of Randwick (1976) 136 C.L.R. 106 (at pp- 109-110);

Salem. v. Mackellar (No. 2) (1977) 137 C.L.R. 396 (at pp. 419-420,

439-441); Heatley v. Tasmanian Racing and Gaming Commission (1977)

There are no standards of universal application to every kind

of tribunal, be it administrative or quasi-judicial (that "convenient

though inexact expression": per Kitto J. in Mobil 011 Australia Pty.

Limited v. The Commissioner of Taxation (1963) 113 C.L.R. 475 (at p.

501)). The application of the rules of natural justice must depend on the nature or subject matter of the inquiry; the extent to which the decision may affect the rights, property or legitimate expectations of any person; specific rules governing the procedures of the tribunal;

the circumstances of the particular case, and so forth.

-10- I do not derive much assistance from attempts to define the rules of natural justice which have been made from time to time. The real difficulty in this case, as in most cases, is to give content to

the applicable rules of natural justice or standards of fairness.

Although the Act does not confer any express right of

promotion on an officer of the Public Service, it plainly recognises

the right of officers to be considered for promotion and to appeal

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

Committees that the Act allots the task of considering such appeals

and, in some cases, determining them. The Act specifically directs

such Committees to "make full inquiries" into the claims of the parties

Promotions Appeal Committees are dealing with important rights of citizens - prospects of promotion in their employment. What 1s said to the Committees by parties to the appeal or their superiors or the relevant Government Department and others, and the decisions of the Committees themselves, may have a critical effect on the employment of the parties and a real influence on their lives. This is especially so where the Committees themselves determine the appeals; but it applies also where the Committees, although not determining the appeals, nevertheless report to the Board or, through the Board to a Central Promotions Appeal Committee, on the claims of the parties and

the Board or the Central Promotions Appeal Committee determines the

An officer of the Public Service who seeks to challenge a fellow officer's provisional promotion to a vacant office brings an "appeal" under s. 50. He thus institutes what are described as "appeal proceedings". There are "parties" to these proceedings namely, the officer who institutes the appeal and the officer provisionally promoted. The Act requires "notice of the appeal" and "any document by which the appeal was institutea" and any documents lodged in connection with the appeal and "full particulars of any such appeal" to be sent to the Promotions Appeal Committee. The Committee 1s required in a case such as the present, where both parties perform their duties in the Australian Capital Territory, to "make full inquiries into the claims of those parties" and to determine the appeal. The Committee's decision 1s not subject to appeal; and the Board is required to confirm the provisional promotee or to promote the appellant depending on the result of the appeal. If there is more than one appellant 1n respect of the one promotion, and the Committee considers that two or more appellants have established the grounds of their appeals, the Committee

1s required to allow the appeal of one only of those appellants, being

the appellant whom it considers to have the best claim to promotion to the vacant office having regard first to the relative efficiency of the persons concerned and, in the event of an equality of efficiency of two or more officers, then to the relative seniority of officers available

It might be said that these matters lend support to the view that the Committee is required not only to act fairly, but to conduct a

formal hearing at which the parties are entitled to be present when

~]2 - - they and others give evidence relevant to the appeal, to cross-examine persons who give evidence, to be represented by solicitors or counsel, to adduce evidence, and to put their respective cases to the Committee

• all attributes of proceedings before courts of law. I regard this view as fundamentally misconceived. Although Promotions Appeal Committees are charged with serious duties, the exercise of which may have far-reaching consequences to those whose rights are involved, to

attribute to the Committees what are, in effect, the functions of

courts of law, fails to perceive the essential character of the ye

Committees and the role they perform under the Act.

The Commonwealth Public Service comprises large numbers of men and women spread throughout Australia and, indeed, beyond its shores. Public Servants service the needs of Government through many and varied Departments of State. Positions in the Public Service are multifarious, diverse and eclectic. The Act governs all facets of their employment - engagement, promotion, transfer, suspension and dismissal. Section 50 of the Act is concerned with transfer or promotion of officers to fill vacancies in the Public Service. Relative efficiency and seniority are the criteria fastened on by the

Act to determine the selection of officers to £111 vacancies.

The very notion of efficiency, whether equal or superior,

necessarily requires the making of value judgments by Promotions Appeal

Committees based on the material before them, including the views of the candidates themselves for the vacancy and of their referees and

superiors. All these people may be called on to express their views of

procedures should generally be followed by Promotions Appeal Committees are the absence of the prescription of any particular procedure in the Act or Regulations; the Committees do not have the usual powers of Courts of law - they have no power to compel the attendance of 'witnesses, or to take evidence on oath (although the Board and Disciplinary Appeal Boards are given these powers in different circumstances: ss. 19 (1) and 63E (11)), or to order discovery or production of documents or the administration of interrogatories.

There is no express statutory right of legal representation before the

Committees. The Committees are not bound by the laws of evidence. Parliament has not provided for any appeals from their decision. Their function 1s sometimes not to determine the appeal, but to report to the

Boara or, through the Board, to a Central Promotions Appeal Committee.

Thus far 1 have mentioned procedures which Promotions Appeal

Committees should eschew; but what of the procedures which they should

No inflexible rules of procedure may be laid down for the guidance of these Committees, especially in the absence of procedural directions in the Act or Regulations. The Committees must adopt

procedures to meet the requirements of each particular case.

Whether their function be to hear and determine appeals, as it 1s 1n the present case, or to make a report to the Board or, through the Board, to a Central Promotions Appeal Committee, the Committees

must, at all times, act fairly to the parties. They have a duty

-15- imposed expressly by the Act to "make full inquiries" into the claims

In the present case the Promotions Appeal Committee must hear

and determine the appeal. In the course of that task 1t must make full inquiries into the claims of the parties. That is an important and necessary part of its activities and one that is subsumed in the other functions of hearing and determining the appeal; but it is not its sole function. Even where the Committee fulfills essentially a reporting role rather than one that is itself determinative of the

appeal, it seems to me that the Committee's role is wider than making

The duty to make "full anquiry into the claims of the parties" in my view supports the notion that the Committees are essentially concerned to ascertain the relative efficiency of the parties to the appeals. It 1s an express and positive statutory duty imposed on the Committees which fits ill with the notion that the Committees are there to determine the relative efficiency of the parties based only on the material adduced by the parties themselves - a notion which would render the Committees merely the judges of the facts placed before ther by the parties. It is the Committees which must gather the necessary information relating to the relative efficiency of the parties, whether their sources be the parties

themselves, their superiors, referees, peers or others.

I would summarise the function of a Promotions Appeal

Committee as essentially to hear and determine appeals against the provisiona] promotion of an officer of the Public Service; to make full anquiries into the claims of the parties, including positive

claims by a party as to his or her own efficiency and claims negating

the efficiency of the other party; to act throughout with fairness to all persons concerned including the parties. The duty to act fairly applies to the selection of procedures adopted by the Committee in a particular case; to the implementation of those procedures; to the overall conduct of the appeal; to the making of full inquiries into the claims of the parties; and to the formulation of its decision, whether

determining the appeal, or reporting to the Board or, through the

It is impossible to prescribe a code of principles or

procedures to govern all cases which come before Promotions Appeal

Committees; but whatever standards are adopted, the following are, in my view, essential. I cannot conceive readily of a case where they

would not apply; but I do not rule out the possibility that there may

be such cases, rare though they will be. The essential standards are:-

1. Bach party must be told the substance of anything adverse to him relevant to the appeal which comes to the attention of the Committee and which 1s alleged by any other party, witness, superior or other officer in the Public Service or anybody else. This information should

practicable after it comes before the Committee and

-17- before he 1s interviewed unless, in a particular case, this is not possible. He must have an opportunity quietly to consider the allegations against him and, if necessary, to obtain material to rebut them. He ought not to be confronted with allegations of this nature for the first time when he is facing the Committee and obviously at a disadvantage in such unfamiliar and

formal surroundings. See Board of Education v. Rice

[1911] A.C. 179 per Lord Loreburn L.c. (at p. 182);

Crofton Investment Trust Limited v. Greater London Rent

Assessment Committee [1967] 2 Q.B. 955 (especially -per

Each party must be told the substance of the case being advanced by the other party or parties. So far as practicable, this information should be given to him in writing and before he is interviewed. The right of each party to be given the material mentioned in 1 and 2 above 1s not dependent upon his making a request for it. It should be furnished to him, whether requested or not.

Of course, 1f he informs the Committee that he does not

The absence of procedures in the Act and Regulations for the conduct of appeals under s. 50 (Regulations 109, 109D and 109F have little to say of any real help to

Committees), and the multifarious circumstances which

may arise in these appeals, require flexible procedures which, in my view, the Committee must determine in each case as the procedures to be followed by it. It may be that some classes of cases admit of common procedures;

but others may not. Hence the need in each case for the

Committee to turn its mind to the question of procedure.

Unless the Committee does this, it is obviously at risk

Whether each party should be entitled to be present, if he wishes, when the other party or parties or any other persons (including referees) are being questioned; whether each party should be entitled to cross-examine the other parties or persons who give evidence - are questions to be resolved by the Committee in each particular case, depending on all the circumstances, including the gravity of the allegation made by or against any party. Certainly there should be no general rule conferring these entitlements in every case. It is for the Committee to determine its own procedures in each case according to the rules of fair play. Generally I think it undesirable for referees to be subjected to cross-examination. In Hamblin v. Duffy (No. 2) (1981) 37 A.L.R. 297 I said (at p. 305) wath reference to the

provisions of the Broadcasting and Television Act 1942:-

"It does not follow that an appellant in proceedings before the Board 1s entitled to know the name of each person who has spoken adversely of ham before the Board. Some boards of anguiry would be bound to disclose to those whose rights may be adversely affected the names of their accusers; but

with a body such as the Promotions Appeal Board there are good reasons why it should not be obliged, as a matter of course, to provide an appellant with the names of people who have given evidence. Witnesses must be cncouraged

to be frank. Sometimes this can only be done by preserving their anonymity."

The relevant provisions of the Act and of the Broadcasting

and Television Act 1942 have some features in common; but there are

material differences between them. Nevertheless what I said in the passage cited applies also to Promotions Appeal Committees acting pursuant to s. 50 of the Act; but they are general observations only. Plainly there will be cases where common justice demands that an

appellant under s. 50 be given the names of those who have spoken

adversely of him and not merely be told of their criticisms or the

In the present case, the Supreme Court was clearly correct in holding that the respondents failed to disclose to the appellant, prior to the determination of her appeal, the report of the relevant Department of 19 August 1977, the written statement made by Mr. Mungoven to the Committee and the oral submissions and answers to questions given by Mr. Mungoven at the hearing by the Committee. Plainly the Committee was bound to inform the appellant of the adverse statements made about her in the Department's report of 19 August 1977. The appellant was entitled to be informed of these adverse statements

before her interview commenced on 5 October 1977. The members of the

Committee thought that the appellant was aware of those criticisms

before the commencement of her interview and that she had been

"counselled" with respect to them. In fact she had not been

~20- "counselled". She heard of the criticisms for the first time during

This confirms to my mind the necessity for Promotions Appeal Committees to ensure that the parties to the appeals before them are

informed in advance of the hearing of matters adverse to them. They should not rely on statements by the relevant Department or its

officers that parties are aware of relevant criticisms or have been "counselled". The present case provides a good example. The departmental report of 19 August 1977 states "departmental applicants

were counselled on any matters which may have militated against their

Although the appellant may have grasped the essentials of the criticisms when confronted with them during her anterview by the

Committee, she was nevertheless shocked and surprised by them.

In my opinion the failure of the Committee to disclose to the appellant, prior to her interview, the substance of the material before

the Committee constituted a breach of the rules of natural justice.

I turn to the matter on which this appeal primarily turns

namely, the appellant's delay in commencing the proceedings for

The Supreme Court considered in some detail the various steps

taken by the appellant during the period of three years and four months

~21-

• from 17 October 1977, when she was informed that her appeal to the

Committee was unsuccessful, to 20 February 1981, when she applied for

I do not find it necessary to consider her conduct during this period in any detail. I agree in substance with the analysis of each of the steps taken by the appellant made by the Supreme Court. In short, the appellant acted within the framework of the Public Service to correct what she regarded as an injustice done to her. There is no' evidence that she acted otherwise than in good faith; but she was misguided in the view asserted by her that she had to exhaust ,all possible remedies within the Department of Education and the Public Service before she could apply to the Supreme Court for the prerogative

Counsel for the appellant submitted before this Court that an applicant for a prerogative writ should first exhaust all alternative administrative remedies. Initially during his argument he submitted that Regulation 6 of the Public Service Regulations gave rise to the substantive right 1n the appellant to appeal from the determination of the Promotions Appeal Committee on the ground that its decision was a nullity because it did not observe the requirements of natural Justice and, sO 1t was said, one that could not provide a valid vehicle for the

promotion by the Board of the provisional promotce under s. 50.

Regulations, the application of any officer upon any matter affecting him as an officer of the

Service shall be made by that officer through the head of his branch to the Chief Officer. Where the

Service Board," and shall be forwarded by the Chief

I agree with the Supreme Court that Regulation 6 does not provide any formal right of appeal against anything, and that its purpose "is to lay down the channels of communication which any officer

must use in making an application in respect of any matter affecting

During the course of argument counsel abandoned this submission but submitted instead that the attempts by the appellant to exhaust administrative remedies within the Public Service itself was an appropriate course for her to take, whether misconceived or not, and was a legitimate justification for her delay in applying to the Supreme

Counsel for the appellant relicd strongly upon the judgment

of Lord Denning in Baldwin & Francis Limited v. Patents Appeal Tribunal

[1959] A.C. 663 (especrally at pp. 695-6), in support of his argument that an applicant for a prerogative writ should first exhaust

In Baldwin & Francis Limited Lord Denning did say that if a

party seeking an order of certiorari has another remedy, for example by

-23- way of appeal, "then the discretion of the Court remains intact to grant or refuse the order...". In that case a company applied for a

patent whereupon, on the publication of its specification, the owners

of a prior dated patent opposed the application on the ground that its

specification could not fairly describe the invention or method by which it was to be performed without referring to their prior dated patent, and that such a reference should be directed under s. 9 of the Patents Act 1949 (U.K.). Both the patent applied for and the prior dated patent concerned improvements designed to prevent the reclosing

of an electric circuit, in which an earth fault had developed, until

In opposition proceedings under s. 14, the superintending examiner, on behalf of the comptroller, decided that the later invention could not be performed without substantial risk of infringement of the prior dated patent, and, accordingly, there being no proposals for amending its specification, the superintending

examiner, by a final decision, ordered that the patent applied for

should be sealed with a reference to the prior dated patent.

The Patents Appeal Tribunal reversed this decision. The

owners Of the prior dated patent applied for an order of certiorari on the ground that there was an error of law appearing on the 'face of the

record in that the Tribunal had misconstrued the rival specifications

It was held that certiorari should not issue. Lord Morton of

Wenryton, Lord Reid, Lord Tucker and Lord Somervell of Harrow held that no error of law appeared on the face of the application even assuming that the record on which the Court was entitled to reach its conclusion included the decision of the superintending examiner and the two specifications as well as the decision of the Tribunal itself. Lord Denning held that those documents formed part of the record and did disclose an error of law so that it was a case in which certiorari

might issue. Nevertheless, his Lordship held that it should not issue

because the proper remedy for the appellants was to sue for

infringement after the article had been made, and that they could have pointed out the error to the Tribunal so that it might have been

Thus the relevant part of the speech of Lord Denning relied on by counsel for the appellant, was not supported by any other member

of the Ilouse in Baldwin & Francis; nor did Lord Denning put the point

higher than as going to discretion. Further, the facts of that case are essentially different and distinguishable from the facts of the

In the exercise of its discretion the Supreme Court refused to grant an order of certiorari because of the very large delay of the appellant. Mere delay generally will not debar a plaintiff from obtaining discretionary relief. For example there are many cases in equity where plaintiffs have succeeded notwithstanding considerable

delay. In Fitzgerald v. Masters (1956) 95 C.L.R. 420, specific

performance was decreed by the High Court despite the passage of 26

• aay » ° ~25- years from the accrual of the cause of action. In Bester v. Perpetual

Trustee Co. Limited (1970) 3 N.S.W.R. 30 Street J. held that a delay by

the plaintiff of 20 years before commencing proceedings for recission on the ground of undue influence did not establish a successful defence

of laches. However, length of time may be evidence of assent or

acquiesence: Life Association of Scotland v. Siddal [1861] 3 De G.F. &

J. 58 (at p. 72) or 45 E.R. 800 (at p. 806). Delay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from

It is true, as counsel for the appellant submitted, that during the period of three years and four months, 1t was clear to the Board, and probably to Mr. Mungoven, that the appellant was taking steps to challenge administratively the decision of the Promotions Appeal Committee. But Mr. Mungoven was promoted to Position 2104 by the Board following the unsuccessful appeal of the appellant. Because of this promotion he gained a number of advantages. The appellant knew this. These advantages have continued to accrue over the subsequent years. Also, 1t 1S important for the efficient administration of the Public Service that vacant positions be filled as soon as possible. This 1s not a case of mere delay by the appellant. It is a case where

real prejudice would be sustained by others if the appellant succeeded.

"If certiorari were granted and a re-hearing ordered, its purpose, from the point of view of the prosecutrix, would be to set back the clock four

years, three of which she has misguidedly allowed to pass by."

In my opinion the Supreme Court was correct in declining to

exercise its discretion by refusing the order absolute for certiorari

on the ground of the appellant's delay; and no ground has been

established for interfering with that exercise of that discretion.

Before parting with this appeal I should say that, even if I had beeh Gisposed to consider allowing the appeal, I would not have ordered that the appeal be allowed until Mr. Mungoven was either joined as a respondent to the appeal or otherwise afforded an opportunity of putting evidence or submissions before this Court on any matter which may affect him. Any other course would be unjust. Applicants for prerogative writs or orders of review under the Administrative

Decisions (Judicial Review) Act 1977 ought to bear this in mind when

I would dismiss the appeal. I agree with the order as to