Applicant v First Respondent

Applicant v First Respondent - [2005] VSC 356 - VSC 2005 case summary — Zoe

[50]

32 Section 79R of the Act requires the Board and the Chief Executive Officer to give effect to a determination of the Commission.

Facts

33 The applicant is a qualified fire fighter. Until 17 February 2005, he was employed by the Board. On that day, he was dismissed from his employment, as appears hereafter.

34 Prior to his dismissal, the applicant had been employed by the Board for approximately 15 years. Since his dismissal, he has been unable to find employment. He is 41 years of age and has five dependent children. The loss of his employment is, quite obviously, an extremely serious matter.

35 The dismissal of the applicant as an employee of the Board arose out of charges laid against him by the charging officer in December 2004 under s. 78B of the Act ("the charges").

36 The charges arose out of an incident which occurred on 6 December 2004. The applicant was verbally ordered by a superior officer to wear an official Brigade uniform shirt in order to travel to attend a training course. It was alleged that the applicant disobeyed this order and then proceeded to verbally abuse and swear at the officer who issued the order. The applicant was charged with breach of the Regulations, and with disgraceful or improper conduct, contrary to s. 78A(a) and 78A(b)(e) of the Act.

37 Pursuant to s. 30 of the Act, the Chief Executive Officer delegated his duty to hear the charges to the delegate.

38 On 14, 15 and 17 February 2005, the delegate conducted a hearing into the charges.

39 On 17 February 2005, the delegate found the applicant guilty of the charges and dismissed him.

40 On 18 February 2005, the delegate published written reasons for his decision to dismiss the applicant. In those written reasons, the delegate considered evidence about the general character of the applicant.

41 The applicant then gave notice that he wished to appeal ("the appeal"). On 2 March 2005, a registrar of the Commission sent to the applicant's solicitors minutes of proposed directions in the appeal. Those directions dealt with preparation of an appeal book and provided the applicant with leave to serve an amended notice of appeal if he desired to do so. Paragraph 3 of the directions proposed was in the following terms:

[57]

44 In this case, the arguments advanced on behalf of the Board in the Branchflower Appeals form the basis of the submissions made on behalf of the applicant.

45 In any event, there is no doubt that the issue as to the nature of the appeal was articulated at an early stage of the appeal by the applicant.

46 On 12 April 2005 there was a directions hearing in the appeal before Commissioner McIntyre. The evidence before me did not include a transcript of this directions hearing. Notes which were taken at the hearing indicate that counsel for the applicant submitted that the appeal should proceed as a re-hearing de novo. Counsel for the delegate, who was respondent to the appeal, submitted that it was not open to the Commissioner to proceed by way of re-hearing de novo because of the decision of Commissioner FitzGerald in the Branchflower Appeals and another ruling of Commissioner Pimm.

47 On behalf of the Board, it was submitted to me that the submission on behalf of the applicant at the directions hearing, to the effect that the appeal should proceed by way of re-hearing de novo, was based solely upon the fact that there was a deficiency in the record of what had occurred at first instance before the delegate. The limited evidence which is available does not permit me to resolve this issue. However, in my view, it does not matter. The fact is that counsel for the applicant submitted to the Commissioner that the appeal should proceed by way of re-hearing de novo. In response, it was submitted on behalf of the delegate, who was the respondent to the appeal, that the matter was covered by previous rulings of the Commission. Thereafter, the appeal proceeded on the basis that it was a re-hearing appeal in the strict sense, requiring the identification of error on the part of the delegate before the Commission would consider any further evidence.

48 The appeal was heard by Commissioner McIntyre on 18 April 2005. The appeal was conducted as a re-hearing appeal, not as as a re-hearing de novo.

49 On 26 April 2005, the Registrar of the Commission published a document containing the decision of the Commissioner to dismiss the appeal.

Nature of an appeal under s. 79I of the Act

50 Section 79I provides that an appeal to the Commission is to be by way of "re-hearing". It was common ground that the Courts have recognised two forms of appeal by way of re-hearing:

[62]

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. . . . The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-judiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine judiciable issues formulated in advance; to conduct a hearing at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction at the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer with depend upon an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a questions which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

[63]

53 In my view, upon a proper construction of the Act, the right of appeal granted by s. 79I of the Act is a right to a de novo appeal.

54 A comparison between the procedures and powers applicable to a hearing by the Chief Executive Officer or a delegate of charges laid under s. 78B with the procedures and powers applicable to an appeal heard before the Commission indicates a statutory intent that the Commission conduct a de novo appeal. There are a number of factors arising out of this comparison which bring me to this view.

55 In the first place the Act does not specify the procedures to be adopted by the Chief Executive Officer or delegate in conducting a hearing into disciplinary charges under s. 78B. The Chief Executive Officer, who is not an independent person, is permitted by the Act to conduct such a hearing in any manner he or she thinks fit. Although the delegate in this case was an independent barrister, this was not required by s. 30 of the Act. In contrast, the Act makes specific provision for the procedures that must be adopted by the Commission, which is an independent body established with the sole function of hearing and determining appeals under the Act. For example, the Act specifically provides in s. 79L(3)(d) that the Commission is bound by the rules of natural justice. Although the Chief Executive Officer or delegate is no doubt subject to the rules of natural justice, by reason of the application of the general law, the fact that Parliament has specifically directed that the Commission abide by the rules of natural justice, but has not made a similar provision with respect to the Chief Executive Officer or delegate on the hearing of the disciplinary charges, is an important factor in the interpretation of s. 79I.

56 Secondly, the Act does not specify the powers exercisable by the Chief Executive Officer or delegate in conducting a hearing into disciplinary charges. For example, the Chief Executive Officer or delegate has no power to compel a witness to attend to give evidence or produce documents. In stark contrast, the Act makes detailed provision in relation to the powers exercisable by the Commission in conducting an appeal. By s. 79M of the Act, which gives the Commission certain powers specified in the Evidence Act, the Commission has been given the specific power to:

(1) compel witnesses to attend to give evidence and/or produce documents;

(2) penalise witnesses who fail to attend and/or produce documents; and

[65]

57 Further, witnesses attending before the Commission on the hearing of an appeal have the privileges and immunities specified in s. 21A of the Evidence Act. This is an important safeguard for witnesses and may ensure that witnesses are more likely to be forthcoming in their evidence, rather than being concerned about exposing themselves to the possibility of actions against them, such as for defamation.

58 On behalf of the applicant it was submitted that these express powers, and the privileges attaching to witnesses appearing before the Commission, are not available to the Chief Executive Officer or delegate hearing a charge laid under s. 78B of the Act. Nor does the Board have such powers when considering matters of promotion which may give rise to promotion appeals. It was submitted that these extra powers, and the granting of the privileges under s. 21A of the Evidence Act, are a strong indication that Parliament intended the re-hearing on appeal to be a re-hearing de novo. Otherwise, why give these extra powers to the Commission?

59 On behalf of the respondent, it was submitted that witnesses who were employees of the Board could be required, by reason of the terms of their employment, to attend and give evidence before the Chief Executive Officer or delegate on the hearing of a disciplinary charge laid under s. 78B and that this reduced the level of disparity between the powers of the Chief Executive Officer or delegate and the Commission. However, it was conceded that there was no power in the Chief Executive Officer or delegate to require relevant witnesses who were not in the employ of the Board to attend.

60 In my opinion, the fact that there is or may be power for the Chief Executive Officer or delegate to require employees of the Board to attend and give evidence before a disciplinary hearing, and to punish them by bringing disciplinary charges against them if they fail to do so, does not affect the substantial nature of the difference in the powers of the Chief Executive Officer or delegate on the one hand and the Commission on the other.

61 Further, there are a number of other provisions of the Act which, in my view, indicate that Parliament intended to confer a right to a de novo appeal under s. 79I. In particular, I note the following matters:

[73]

68 The statement of Mason J in argument in Brayson was referred to with approval by the Full Court of the Federal Court in Flanagan v Commissioner of Australian Federal Police[11].

69 In my view, the fact that the relevant regulation was made at the time of inclusion in the Act of s. 79I does mean that the Court can look at the regulation when considering the overall scheme of the appeal rights granted by the Act. However, as I have said, reg. 29(4) is equivocal, in the sense that it is consistent with both forms of appeal under consideration. Further, reg. 29(5) is consistent with both forms of appeal. In my view, the Regulations are, on any view, not decisive of the issue which I must determine as to the nature of the appeal granted under s. 79I of the Act.

70 In my opinion, it is also relevant to the construction of s. 79I of the Act to consider the nature of the decision which is the subject of appeal. In this regard, it is relevant that s. 79I provides for both disciplinary appeals and promotion appeals. Each of these may involve very serious consequences for the appellant. The most serious of these is demonstrated by this case. The applicant's employment is at risk. A decision to dismiss an employee constitutes "a deprivation of a valuable privilege" such that Parliament may be taken to have intended to confer a right to a de novo appeal[12].

71 A final matter which I think is highly relevant to the interpretation of s. 79I is the fact that it provides for both disciplinary appeals and promotion appeals. Promotion appeals are from decisions made by the Board under s. 25B(1)(e) of the Act. Apart from the Regulations, which specify notification requirements for applications for promotion and of promotions, there is no procedure specified in the Act. The standard to be applied in dealing with promotions of operational staff is also contained in the Regulations[13].

72 Under s. 9 of the Act, the Board is comprised of up to seven members appointed by the Governor-in-Council. The functions of the Board are stated in s. 7 of the Act. Having regard to the broad ranging nature of these functions, promotion matters are likely to occupy a very small amount of the time of the Board. It is in my view extremely unlikely that a body such as the Board was intended to conduct a hearing in relation to promotion matters. There is no requirement in the Act for the Board to conduct such a hearing. Nor is there any requirement in the Act for the Board to keep a record of its deliberations on a promotion application or to provide reasons for its decision. Accordingly, it is likely that a promotion appeal under s. 79I will be the first and only opportunity which an aggrieved employee may have to test the factual basis on which his or her application for promotion was determined. In these circumstances, I am of the opinion that Parliament intended to grant a de novo appeal to a person aggrieved by a decision to refuse his or her application for a promotion.

73 In this regard, I note that it was argued on behalf of the defendant that an appeal under s. 79I may be of a different nature depending on whether it was a disciplinary appeal or a promotional appeal. I reject this submission. In my view it is inconsistent with the decision in Coal and Allied[14].

74 For the above reasons, I am of the view that Parliament intended to grant an appellant under s. 79I a right to a de novo appeal. That was not done in this case. What is the consequence of this? In my opinion, by hearing and determining the appeal as a re-hearing appeal, the Commission fell into jurisdictional error by misapprehending the nature of its function under s. 79I.

75 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ said[15]:

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Cases Cited (7)