Colpitts, B. v. Australian Telecommunications Commission Colpitts, B. v. Guilfoyle, D.H. & Ors [1986] FCA 1

£1985] 1 AC 374 Browne v. Commissioner for Railways (1935) 36 SR(NSW) 21

Twist v. Randwick Municipal Council (1976) 136 CLR 106 Ridge v. Baldwin £1964] AC 40

Drake v. Minister for Immigration (1979) 24 ALR 577

Sullivan v. Department of Transport (1978) 20 ALR 323 Kioa v. West, Full High Court, unreported, 18/12/85.

Daganayasi v. Minister of Immigration (1980) 2 NZLR 130

In re Pergamon Press Ltd. (19713 1 Ch 388 Kanda _v. Government of Malaya £19621 AC 322

The Commissioner of Police v. Tanos (1958) 98 CLR 383

BRIAN COLPITTS -V- AUSTRALIAN TELECOMMUNICATIONS COMMISSION BRIAN COLPITTS -V- DANTEL HENRY GUILFOYLE & ORS.

Judge Making Order: Burchett J. Date of Orders: 9 January 1986 Where Made: Sydney

Bach of the decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under 5.56 of the Telecommunications Act 1975 and the decision of the

Review Tribunal in respect of the application of the applicant to it is invalid.

The decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission

Service under s.56 of the Telecommunications Act 1975 be set aside.

The respondent the Australian Telecommunications Commission pay the costs of the applicant of each application.

Settlement and entry of order is dealt with by Order 36 of the Federal Court Rules.

Section 56 of the Telecommunications Act 1975 provides

"(1) If an officer appears to the Commission to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties of his position, the Commission may-

, (a) transfer him to another position having the same classification as the position held (whether in the same or a different locality);

(2) The regulations shall make provision for and in relation to the review of a decision of the Commission under this section upon application by an officer affected by it."

In purported pursuance of that section, the applicant, Mr. Colpitts, was retired from the Australian Telecommunications

Commission Service, a service established under 5.38 of the Act,

in which he was an officer. He challenges, under the Administrative Decisions (Judicial Review) Act 1977, the decisions by which that retirement came about - firstly, the

decision of the Commission by its delegate, and secondly, the

decision of the Review Tribunal not to uphold his application

It is necessary to recount the circumstances. The story begins on 24 January 1978, when Mr. Colpitts commenced duties with the Australian Telecommunications Commission. He served for a little over two years as a Clerk Class 1, and on 26 June 1980 was promoted to Reconciliation Officer, Clerk Class 4, in the Finance and Accounting Department. He continued in that position, under a succession of supervisors, until 17 August 1983 when he was directed to proceed on sick leave until 15 November

1983, at which time, he was told, his fitness for duty would be

re-+assessed. The illness which formed the basis of this direction was of a psychiatric nature, and can be described as a depressive illness associated with a personality disorder. The personnel files which are in evidence indicate that there had been a succession of clashes between Mr. Colpitts and other members of staff, and particularly his supervisors. On 4 October 1982 it had been considered appropriate to defer his salary increment, but this was later restored. It is clear that these clashes had developed by mid-1983 into an explosive situation. Although notes in the file acknowledge that the faults were not all on one side, it is clear that Mr. Colpitts' supervisors

A report from the Senior Finance Officer, Financial Accounting Section, to the Manager, General Personnel Services Branch dated 25 July 1983, recommends the bringing against him of a charge of improper conduct as an officer of the Commission

under s.58 of the Telecommunications Act, a section providing for

the bringing of such a charge, which may lead to admonishment, a small fine, reduction in salary for a period not exceeding twelve months, or a recommendation to the Commission of a transfer or dismissal. Additionally, the Senior Finance Officer recommended that Mr. Colpitts be referred to the Commonwealth Medical Officer for an assessment of his fitness for duty. The report noted that Mr. Colpitts was at the time under outpatient treatment at the Royal Prince Alfred Hospital. It referred to a- particular

incident involving a vehement confrontation with another officer,

who was to be "counselled and reprimanded... for his participation in the incident." However, the report contended that Mr. Colpitts was more at fault, and had been concerned in

"several incidents involving loud outbursts and abusive language

with several different officers." Annexed to the report was a list entitled "Summary of Mr. B. Colpitts' Unsatisfactory Service". The list refers to abusiveness, discourtesy, loss of self-control, shouting, "his attitude", umco-operativeness and outbursts. It commences with six entries between March and July

of 1980, then has an entry for 15 August 1980: "Report by Mr.

Byrne to Manager, Financial Control", and advice that "improvement is evidenced of his attitude and appears more settled". There is only one entry for 1981, which appears to refer to a complaint that Mr. Colpitts worked late without prior approval to remain on duty and work overtime. The next entry refers to a request by Mr. Colpitts, in March 1982, for a transfer to another section, which was forwarded "also outlining his failings". From then on there is a series of entries including a reference back to one incident in late 1981. A number of these entries relate to problems with flexible hours; others suggest argumentative outbursts, loss of self-control, and

Mr. Colpitts was not in fact ever charged as recommended un the report. He had previously, as I have said, suffered a deferment of an increment, but this had been restored to him. He

had also secured a promotion by pursuing a promotions appeal, and

one assertion that he made was that at least some of his difficulties with supervisors arose from resentment about his

But matters certainly came to a headin July 1983, following the incident which triggered the report to which I have referred. Prior to that time, Mr. Colpitts had himself reached the conclusion that he was in need of medical treatment, for a note signed by a Dr. Kjorrefjord, a psychiatrist, on the letterhead of Royal Prince Alfred Hospital, indicates that he had attended the Hospital on 3,7,9 and 17 June and1,8 and 15 July 1983, and was still under treatment. The note was apparently written in response to one of the complaints of a supervisor against Mr. Colpitts, which related to an absence during a period of treatment. Mr. Colpitts continued to receive treatment from Dr. Kjorrefjord, who at some stage transferred him to the Outpatients Department of the Rozelle Hospital. He was given a series of medical certificates certifying his unfitness to work on various days, but his relations with his superiors had by July 1983 degenerated to the point where there was a dispute about an alleged failure to notify a particular day's absence, and a statutory declaration was submitted to evidence notification, by a friend on his behalf, which had apparently not reached the

As a result of the report to which I have referred, Mr.

Colpitts was sent to another psychiatrist who examined him on

behalf of the Government Medical Officer. That psychiatrist was

a Dr. Gatenby, who in a report dated 12 August 1983 concluded:

"Mr. Colpitts is suffering from a definite depressive state as part of an early paranoid reaction. There does appear to have been decompensation in his condition over recent months. Because of his severe anxiety I would have to consider that he 1s unfit for his usual duties in the present work situation. He is motivated to continue attending for psychiatric treatment so I

would recommend that he be given an extended period of sick

leave, when, if he responds to treatment, consideration be given

to his re-deployment as a Clerk, Class 4, in a different department of Telecom Australia." Dr. Gatenby's report is referred to in a report of the Commonwealth Medical Officer which states the prognosis as "uncertain at this stage", and suggests a

grant of further sick leave until 15 November 1983.

There is no dispute that Mr. Colpitts did respond to medical treatment, though there is dispute as to the extent of his recovery. On 14 October 1983 Dr. Kjorrefjord, writing under the letterhead of the Rozelle Hospital, certified: "He is now fit to resume work in my opinion." A further report of the Commonwealth Medical Officer, undated but stamped with a received stamp bearing the date 13 November 1983, followed. This refers to the condition of Mr. Colpitts as "personality disorder" and includes the following:

"Recently reviewed by Dr. Gatenby after three months sick leave. Considerable improvement.

" more relaxed and not depressed. Dr. Gatenby considers him fit to return to his normal duties but in view of his previous personality clashes with his associates, a re-deployment to another section or department is recommended. I concur."

(This note is in handwriting and I have not attempted to reproduce certain abbreviations. )

The report is furnished ona printed form. Against the word "prognosis" on the form has been written "uncertain, due to personality problems." The form contains a section which I reproduce, substituting, for convenience, pairs of square brackets for boxes which the form contains: "E 1 Is fit for continued employment for the position presently occupied C J Is unfit for continued employment and should be granted further sick

Cc a} Is unfit for continued employment in the nature of the duties of the position presently occupied and

should be re-deployed on duties of the following nature: (description of type of work suitable to he undertaken by the examinee)

and should be retired on the grounds of invalidity...".

Quite clearly, none of the boxes from which the form invites the Commonwealth Medical Officer to select, precisely corresponds to the handwritten opinion which I have quoted above. The third box was ticked, and there was written in as a

description of "type of work suitable to be undertaken by the

"Any clerical situation with minimal personal contact with fellow employees."

It will be apparent that this method of completing the form did not avoid conflict between that portion of the printed form referring to unfitness for continued employment, which was ticked, and the handwritten statement of concurrence with the view of the psychiatrist, Dr. Gatenby, which included the conclusion that Mr. Colpitts was fit to return to his normal duties. The ticked box, counsel for the applicant claimed, responds to the requirements of the form in a manner as consistent as the form allows with the handwritten opinion. Aithough counsel for the respondent contended to the contrary, it seems to me quite plain that the only way of reading the form as having a consistent meaning is to have regard to the handwritten opinion as predominant, and the choice of a box to be ticked as

an approximation chosen because of the Procrustean nature of the

In an undated, but about contemporaneous, form relating to superannuation (which contains the misleading suggestion that it was Mr. Colpitts who had initiated review of his own fitness - it was his enforced sick leave that he wanted reviewed), there was provision for supply by the Commonwealth Medical Officer of further information, as follows:

"le. ae How does the employee's medical condition (or conditions) affect his

' or her ability to undertake the duties outlined in the departmental statement?"

(This was answered: "His relationships with fellow workers are adversely affected by his personality defect.")

these duties affect the employee's medical condition(s)?"

(This was answered: "Further deterioration in his nervous state could occur.")

"2. If redeployment is considered possible on medical grounds, please indicate the types of work or

working situations which the employee's medical condition(s) preclude him or her from undertaking."

(This was not answered, but the comment was made: "He is best

suited to a situation with minimum contact with other personnel.")

In a statement dated 21 March 1984, supplying to the Chairman of the Review Tribunal details of the decision to retire Mr. Colpitts on the ground of invalidity, the Commonwealth Medical Officer's report is seriously misquoted as asserting, not that deterioration in his nervous state could occur, but that "continuing to perform his normal duties would worsen" his personality disorder. The same document omits altogether the Commonwealth Medical Officer's concurrence with the psychiatric opinion of Dr. Gatenby (itself in accord with the view of the treating specialist, Dr. Kjorrefjord) that Mr. Colpitts was "fit

The recovery indicated by the reports of Dr. Kjorrefjord and Dr. Gatenby had indeed been dramatic. A report from the Royal Prince Alfred Hospital concerning his treatment there up to 15 July 1983, since referral on 3 June 1983 "by a friend because

of depression and a six month period of general deterioration",

"His mood was paranoid and angry and he had a lot of problems relating to authority figures both past and present. His thoughts were somewhat delusional at times.

He was diagnosed as suffering from depression with the possibility of associated paranoid personality disorder and possible schizophrenia."

Although there had been some early improvement, when Mr. Colpitts was first seen by Dr. Gatenby on 11 August 1983, that

"Mr. Colpitts presented stating that he considers he is deteriorating rapidly and that he feels he is suffering from an extreme nervous upset. He described some difficulty with his vision and loss of memory , particularly for short term events. He considers the situation at work has become

worse due to the 'intolerable attacks' being made upon him,"

"In the interview Mr. Colpitts was extremely anxious and agitated with difficulty controlling his feelings when discussing his

By contrast, just two months later, Dr. Kjorrefjord on 6 October

relaxed and pleasant. He is working on resolving his long term conflict with authority figures and accepting of

Dr. Kjorrefjord clearly thought Mr. Colpitts would be able to resume work, and he was re-assessed by Dr. Gatenby a few weeks later, on 28 October 1983, when the report was furnished which is referred to in the Commonwealth Medical Officer's report quoted above. It appears that a proposed further consultation with the Commonwealth Medical Officer was cancelled by telegram on 3 November on the basis that the Commonwealth Medical Officer could see no useful purpose in a personal consultation in the light of the report of the specialist psychiatrist, Dr. Gatenby, to whom he had referred Mr. Colpitts. Dr. Gatenby's report of 28

"In the interview Mr. Colpitts presented now as being quite relaxed and with no evidence of depression in his mood. His previous anxiety has subsided with loss of any agitation. He has now recovered from his depressive state which could well have been aggravated by other personal situational problems.

OPINION: I would consider that Mr. Colpitts is now quite fit to resume his work with Telecom Australia as a Clerk, Class 4. However, in view of the personality conflicts which occurred in his work situation in the financial accounting section, I would recommend that he be immediately redeployed to a different section or department."

Following Mr. Colpitts' appointment with Dr. Gatenby on 28 October, he received a telegram, to which I have referred, cancelling his further medical appointment and advising that his Placement was being considered by the Finance Department, the Manager of which he should telephone on the following Friday. However when he telephoned he was not permitted to resume work. Eventually, on 23 December 1983, his solicitors wrote to request advice as to the legal basis for the continued denial of his return to his employment. They did not receive any reply. In the meantime, Dr. Kjorrefjord had written on 15 November 1983 stating that Mr. Colpitts' intelligence had been assessed and found to be in the top three percent of the population and making clear the doctor's view that, while Mr. Colpitts' capacities would be best utilised with computers, he was well able to

recommence any normal work. This letter was not acknowledged.

On 31 January 1984 Mr. Colpitts received notice of his

retirement under s.56 of the Act. The notice stated (inter

"Following advice from the Department of Health that you are medically unfit to perform your normal duties but fit for selected duties, an investigation was undertaken to ascertain if you could be suitably redeployed.

As there are no positions available which comply with medical restriction it is Telecom Australia's intention to retire you under the provisions of Section 56(1)(c) of the Telecommunications Act of 1975. This will be

, an invalidity retirement. Following an audit of your leave cards you will be contacted

Should you wish to appeal against the decision of the Commission you should submit an appeal in writing to the Chairman Promotions Appeal Board, GPO Box 1634, Sydney, which must be received within 14 days of the receipt of this notice. Your appeal statement should give details of the reasons why you consider you should not be retired

and if possible should be supported by medical evidence."

Mr. Colpitts did promptly lodge written notice of his desire to

On 26 July 1984 Mr. Colpitts received a telegram which included the following:

MONDAY 13 AUGUST 1984 10.00AM AT #£'THE PROMOTIONS APPEAL BOARD...".

Mr. Colpitts attended on the scheduled hearing day, when he was interviewed by the members of the Tribunal for perhaps a little over half an hour, He says he was not asked to comment on any matters asserted concerning him by any other Commission officer. He had, however, been supplied copies of the reports of supervisors and a significant amount of other file material indicating the complaints against him to which I have referred.

(A few documents had been withheld on the ground that they

involved the personal affairs of others.) But I am satisfied

that there was no detailed discussion of the particular incidents referred to in the file, perhaps because Mr. Colpitts submitted that the Review Tribunal should look only at the medical issue.

His simple case was that he had been ill but had now recovered.

Mr. Colpitts was at no stage made aware of any further matters adverse to his case. In fact his appeal was dealt with on subsequent days, of which he was not notified, when supervisors were spoken to by the Review Tribunal and when

certain further written material from the Commission, asserting

that it was not practicable to transfer him to another department, was considered. None of this material was referred to him at any subsequent time to enable him to make any reply to

The additional material from the Commission arose out of the Tribunal's view that there was no evidence of any attempt by the Commission to secure an appropriate placement for Mr. Colpitts in any branch or department outside the Finance and Accounting area. Mr. Colpitts had made it clear to the Review Tribunal that he was willing to work in any clerical field and not simply as an accountant. The Chairman of the Review Tribunal wrote to the Commission, referring to this matter, and added:

evidence to the Tribunal that Mr. Colpitts has improved during his long absence from

work and is now able to work far more effectively."

Despite the reference to improvement in Mr. Colpitts' condition during his long absence, and despite statements in the earlier medical reports that Mr. Colpitts was continuing under treatment, which must have made continued improvement if not expected at least comprehensible, the evidence makes it clear that the Commission's response to the Chairman's letter was based on an adamant insistence that there was a medical requirement which restricted the available positions so as to exclude any position from consideration other than one involving minimal contact with other personnel. Although the Chairman's letter contained no such restriction, he took no exception to the reply which did. In this situation it cannot be said that there would have been no value in giving Mr. Colpitts an opportunity to make answer to the further material from the Commission. That material was vulnerable to persuasive rebuttal. Indeed, not only might Mr. Colpitts have utilised an opportunity to question the validity of ignoring medical evidence of improvement to hark back a full year to the earlier suggestion of the Commonwealth Medical Officer, in order to place ai serious qualification upon the search for an appropriate position, but he might also have wished to challenge the way in which that search had been pursued. For the material forwarded to the Tribunal consisted of replies from various departmental heads which indicated the qualified nature of the requests being answered, but not the precise manner' in which those requests had been made. The requests themselves were withheld. That also might have been the subject of a submission,

had a submission been permitted, for the terms of a note about an

earlier request were disturbingly suggestive of the possibility

that the request had been an insincere formality, with no

intention of attempting to find a position for Mr. Colpitts.

The issue to which the further material went was an issue which clearly arose before the Review Tribunal. For s.56 does not make retirement the inevitable consequence of a finding of incapacity; it proffers the alternatives of transfer to another position having the same classification, or reduction to

a lower position and salary. Effectively, by the procedure which

was adopted, the Review Tribunal permitted the Commission to . answer a matter raised by Mr. Colpitts upon his appearance before the Tribunal (his willingness to pursue work in any clerical field) by further evidence of the proffering of which Mr. Colpitts was left in ignorance. That further evidence was clearly vital, since without it the Review Tribunal had already reached the view that the decision to retire Mr. Colpitts had not been made upon a due investigation of the alternatives which the statute required to be considered. (I should add here that I do not think the course taken by the Tribunal was the correct one. Once it appeared that the Commission had not considered the matter according to law, the Tribunal should have said so and upheld the appeal to it. It was not the Tribunal's function to permit an admittedly incorrect decision to continue to stand, to the detriment of the person affected by it, simply in order to enable fresh consideration to be given to the decision which

ought to have been made in the first place. Its function was to

review the original decision, not some further decision not even

notified to the person affected (cf. Repatriation Commission v.

unreported, Fitzgerald J., 27/10/82; and on appeal, unreported,

Full Court, Lockhart, Morling and Neaves JJ., 5/8/83;

The Commonwealth, unreported, Full Court, Evatt, Nor

Commission, the Tribunal decided to reject Mr. Colpitts' appeal,

and the Chairman wrote to hima letter dated 23 Novem

dated 30 May, 1984, (sic.) under Section 56 of the Telecommunications Act, 1975, for a

review of the decision of the Australian Telecommunications Commission to retire you on the grounds of invalidity.

The Tribunal, after interviewing you and making all necessary enguiries, concluded that there was insufficient evidence to recommend any alternative to the decision made by the Commission."

Mr. Colpitts promptly sought a statement of findings and

and on 20 December 1984 the Chairman wrot g the reasons of the Tribunal. Those reas Colpitts learned for the first time of the

ve been transferred rather than retired, and of the

"The first step in reviewing the decision process was to establish if you were correctly deemed to be unable to discharge the duties of your position prior to the decision. The Tribunal felt that the evidence of your Telecom supervisors was, in general terms, that you were so unable.

The Tribunal then turned its attention to the question of whether there were other positions then available in the Commission whose duties you were able to discharge. Collating the reports on file from the Finance and Accounting Department with the supervisor comments made to it, the Tribunal concluded that no appropriate position was available at that time within the Finance and Accounting Department. However, it could reach no conclusion about possible positions in other areas of the Commission, as other areas had not been specifically contacted by the Commission.

The Tribunal felt that all Branches and Departments should be contacted before a decision to retire was reached and, therefore, it wrote to the Commission on 12 September, 1984, indicating your willingness to work in any Branch or Ocpartment and asking that the Commission's inquiries about alternative positions be extended to all areas.

The Commission replied, on 1 November, 1984, to the effect that no other position could be found in another area, given the restrictions by the Commonwealth Medical Officer, i.e. 'any clerical situation with minimal personal contact with fellow employees'.

At its most recent meeting the Tribunal reasoned that, as the Commission had now followed the total process of enquiry and could still not identify a position which you were able to discharge, no alternative existed to the decision made by the Commission."

The applicant challenges, as I have said, both the original decision of the Commission by its delegate, and also the decision of the Review Tribunal. His application to review the

original decision under the Administrative Decisions (Judicial

Review) Act was brought pursuant to an order extending time for lodgment of the application, and an order was also made by McGregor J. consolidating the hearing of that application and the hearing of the application to review the decision of the Review

Mr. Katz, who appeared for the applicant, raised questions of natural justice and error of law in respect of each decision. But, logically, the first question to be faced is whether any valid decision could be made under s.56, the terms of which I have set out at the beginning of these reasons. For Mr. Katz argued that the regulations do not, within the meaning of s.56(2), make provision for the review of a decision of the Commission under the section, and that without such provision the

The Telecommunications Regulations, as in force at the relevant times, provide for the establishment of what are referred to as Promotions Appeal Boards, Disciplinary Appeal Boards, and Review Tribunals. A Review Tribunal, for the purposes of s.56 (and also s.55 which deals with redundancy), is to be constituted by a Chairman who is the holder of the office

of Chairman of a Promotions Appeal Board, an officer nominated by

thé Commission for the purposes of the appeal, and an officer nominated by the organisation defined by regulation 32 as appropriate to make the nomination. Regulation 33 provides the mode of application, and regulations 34 and 35 provide as follows (I note that there have since been certain amendments which are

full review of the decision of the Commission under section 55 or 56 of the Act in relation

(2) Subject to this Part, in the conduct of a review by a Review Tribunal -

(a) the Tribunal may inform itself in such manner as it thinks fit;

(b) the procedure to be followed is within the discretion of the Tribunal;

(c) the Tribunal is not bound by the rules of evidence; and

(d) the Tribunal shall proceed without regard to legal forms or solemnities.

(3) A Review Tribunal shall, in conducting a review, take into account -

{a) whether it would be practicable and desirable to retrain the officer for some other position in the Service; and

{b) whether it would be practicable and desirable to retrain the officer in the Service, having regard to the normal loss of staff employed by the Commission.

35.(1) Where a Review Tribunal is of the opinion that any action taken under section 55 or 56 of the Act should receive further consideration by the Commission, it may recommend accordingly to the Commission and may advise the Commission of any action

which, in its opinion, should be taken by the Commission in order to do justice to the merits of the application.

(2) The Commission shall, upon receipt of a recommendation and advice from a Review Tribunal under sub-regulation (1), give further consideration to the matter and may confirm the decision previously made by it or take such other action as it considers

appropriate to give effect to the recommendation or advice of the Tribunal."

It will be seen that these regulations provide for a Tribunal with quite different powers from those of a Promotions Appeal Board, which by s.51(6) of the Act is empowered to allow an appeal with the result that the appellant receives the disputed promotion, or the powers of a Disciplinary Appeal Board the decision of which the Commission is, by s.62(9), required to carry into effect. Regulation 35(2) merely obliges the Commission, upon receipt of "a recommendation and advice" of a Review Tribunal, to "give further consideration to the matter", following which it may, if it chooses, confirm its own previous

In the context of an Act which does not permit the Commission to promote an officer over another, except subject to a right of appeal to a body with power to set the decision aside, I do not think ss.55 and 56 should be construed as permitting retrenchment or compulsory retirement without any effective remedy. The sections, in imperative terms, require that the

regulations shall provide for the review of a decision of the

Commission under each section; they do not provide for review by

thé Commission, but for review of its decision. An "appeal from Caesar to Caesar" is the proverbial paradigm of an empty formality offering no real hope. The Act, which was passed in 1975, would be out of step with numerous contemporary provisions if, in requiring a review, it contemplated merely further consideration by the Commission itself upon receipt of "yecommendation and advice" only from an independent Tribunal. It is perhaps sufficient to refer to general legislation such as

the Administrative Appeals Tribunal Act 1975 and the

Administrative Decisions (Judicial Review) Act 1977, both of

which use the word "review" in a sense involving the independent exercise of powers directiy affecting the decision reviewed. S.6 of the Ombudsman Act 1976 uses "review" with reference to a Court or Tribunal, though also by extension ina looser sense, while the Ombudsman's own action, which has no binding effect, though it may lead to a referral "to the appropriate authority for further consideration" or a ""report" and "recommendations" (s.15), is not called a review, but an "investigation". In respect of the Administrative Appeals Tribunal, there is exceptional provision for a "review" without binding effect. But this is an exception which confirms the general rule, excluding from it the special case of a decision, concerning immigration, of a kind traditionally the preserve of the responsible Minister

(cf. Minister for Immigration and Ethnic Affairs v. Pochi (1981)

36 ALR 561 at 564). A similar usage is to be found in various pieces of legislation having more restricted areas of operation -

for example, the provisions of Part V of the Income Tax

Assessment Act 1936 in respect of Boards of Review, the

provisions dealt with in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at 368; and Harrington v. Harrington (1981) 55

ALJR 566 at 567; and most significantly, s.64 of the very Act under consideration, Telecommunications Act, 1975, which provides for a "review" of certain decisions of officers and Boards by the Commission itself, with power to alter the result of the original

Neither a further consideration by the Commission, for which regulation 35 provides, nor a hearing by a Tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a "review". Together, I think they remain impotent to do so. In the Shorter Oxford English Dictionary the first meaning given of the word "review" is "the act of looking over something (again), with a view to correction or improvement", but the meaning in law is also given: "Revision of a sentence, etc., by some other court or authority". It is the latter meaning, suggesting an independent tribunal with power to alter the

result, which is significant. In Ashfield Municipal Council v.

Joyce £19783 AC 122 at 134 Lord Wilberforce said, citing Pemsel's Case £18911 AC 531:

"It is hardly necessary to add to this the reminder, from Lord Macnaghten, that 'in construing Acts of Parliament, it is a general rule... that words must be taken in their legal sense unless a contrary intention appears'."

(See also Pearce, Statutory Interpretation in Australia, 2d ed, para. 44).

That the Shorter Oxford English Dictionary correctly defines the legal meaning of "review" is confirmed by the cases:

see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR 616 at 620 citing Phillips v. The

Commonwealth (1964) 110 CLR 347 at 350, where the High Court chose the word "review" to describe a rehearing which led to the pronouncement anew of the rights of the parties; Rex v. Nat Bell Liquors Limited £19221 2 AC 128 at 143 where Lord Sumner also chose the same word to express the breadth of the remedy

conferred by a power of rehearing in contrast to the limited

reach of certiorari; and Council of Civil Service Unions v.

Minister for the Civil Service [£19851 1 AC 374 at 408 where Lord

Diplock said: "Judicial review... provides the means by which judicial control of administrative action is exercised" (emphasis added). Use of the word in this context is discussed in Woss v.

It may be conceded that, in an appropriate context, the word "review" could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by "application", to administrative action, provision for which is to be made by regulations. In such a setting a legal signification is suggested. And the tide of modern legislation, in the area of administrative decisions, has for some time flowed

strongly in the direction of fuller rights of review. In my

opinion the regulations provide for less than the review which

s.56 reguires shall be available to an officer affected by a

There then arises a question as to the effect of the lack of regulations complying with the statutory demand. Browne

v. Commissioner for Railways (1935) 36 SR (NSW) 21 was cited.

That was a case concerning the meaning of s.82 of the' Government

Railways Act 1912 of NSW which provided for dismissal of an officer, for misconduct, by the head of his branch "in the prescribed manner." No manner had been prescribed. Jordan C.J., speaking for the Full Court of the Supreme Court, said at p.29: "I think that the prescription of a manner must be regarded as intended by the Legislature to be an essential condition of

Although Browne's Case dealt with a differently worded section, I think its principle is applicable. Jordan C.J. at p.29 relied on a consideration which is also present in respect of s.56. He said: "But the matter in question ...is the deprivation of an officer of certain legal rights to which he is entitled by virtue of a permanent office in the railway service which he holds during pleasure. Section 82 says, in effect, that the head of his branch may in certain circumstances deprive him of these rights in the prescribed manner." Similarly, s.56 enables the deprivation of an officer, otherwise entitled to the

tenure for which s.54 provides, of his legal rights as an

officer. But the section provides that the officer affected

shall have a right of review upon application. I think the provision of that right of review must be regarded, upon the

proper construction of the section, as an essential condition of

So to construe the section is to give the express terms

of its sub-s.(2) a similar effect to that generally given by Courts to the implied condition that a person affected by a

decision of the appropriate kind, for which a statute provides,

shall be accorded natural justice. (See F.A.I. Insurances Ltd.

v. Winneke (1982) 151 CLR 342 at 409 and cf. Council of Civil Service Unions v. Minister for the Civil Service £19853 1 AC 374 at 399.) If the decision is made in contravention of the requirements of natural justice implied by law, it is invalid

Accordingly, the applicant is entitled to a declaration that his retirement under s.56 is invalid. However, as the matter may be taken on appeal, and a number of other questions would arise if it were held that I am wrong and that the regulations fulfill the requirements of s.56, it is necessary

also to consider the applications upon the basis that it was open

I should point out in passing that in my view, if the

regulations validly provided for a Review Tribunal with power

only to recommend and advise, there would be a strong case for the conclusion that the Commission would be bound, as the real decision-maker, to accord natural justice to an applicant at the stage of giving further consideration to the matter, at least before departing, adversely to him, from any recommendation and

advice of the Tribunal. (See Taylor v. Public Service Board

(NSW) (1976) 137 CLR 208 at 226; and Sean Investments Pty. Ltd.

v. MacKellar (1981) 38 ALR 363 at 370.) It would be difficult to find in s.56, assuming it to authorize the Regulations in question, the express or necessary exclusion or limitation of the rules of natural justice which high authority would demand if those rules were not to apply. (See Wiseman v. Borneman [1971]

AC 297 at 318; and Twist v. Randwick Municipal Council (1976) 136

On the assumption that an officer is entitled, under s.56, only to the very limited remedy provided by the Regulations, the question arises whether the existence of that remedy, or his pursuit of it, can exclude reliance upon the requirements of natural justice in relation to the original decision. First, as to the effect of the existence of such a

remedy, in Twist v. Randwick Municipal Council (supra) the High

Court held that a demolition order made under s.317B of the Local Government Act 1919 (NSW), without an opportunity being given to the owner of the building to be heard, was not invalid, since he had a full and effective right of appeal to the District Court.

But both Barwick C.d. and Jacobs J. emphasised the completeness

of' the appeal rights of the owner, and Mason J. at pp. 113-4

"Does the existence of the right of appeal, taken in conjunction with the terms of sub-s.(1), satisfy in full the duty of fairness, or does it sufficiently indicate a legislative intention that the duty of fairness has no application to the council when it decides to act under s.317B(1)?

• This, according to the appellant, is the question to be decided. It is a question Which could be easily disposed of if the appeal were less than a full and comprehensive appeal from council's order. In that event it could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced. The owner might find that certain matters were irrevocably decided against him by the council without its having the benefit of representations on his behalf.

However, the appeal is not restricted in any way. It is a full appeal on facts and on law in which the appellant is entitled to call evidence. The appeal extends to such elements of discretion as may enter into the making of the order as well as to the existence or non-existence of the conditions which are to be satisfied before an order can be made."

In The Queen v. Marks; Ex parte Australian Building Construction

Employees and Builders Labourers' Federation (1981) 147 CLR 471

at 484 Mason J. took a similar approach to an analogous case.

In my view, the passage I have cited from the judgment of Mason J. in Twist's Case shows clearly that the existence of the truncated remedy offered Mr. Colpitts by the Regulations cannot exclude his right to be heard before the making of the

The further question, on this aspect, is whether the application he made to the Review Tribunal excludes a remedy now, assuming he is otherwise entitled to succeed, in respect of the original decision. The authorities make it clear that in some cases a fair hearing before a review tribunal will exclude any further remedy, despite an invalid initial decision: see Australian Workers' Union v. Bowen (No. 2) 77 CLR 601 at 631-2; Twist's Case (supra) at 116, 119; Calvin v. Cary £1980] AC 574 at 592; The Queen v. Marks (supra). But, on this aspect also, the insufficiency of the remedy open to the applicant seems to me to make it impossible to say that an attempt to pursue it could cure an originally invalid decision. It was, to borrow Lord Reid's

dismissive phrase in Ridge v. Baldwin [1964] AC 40 at 79, "a very

inadequate substitute for a full rehearing". At p.81 of that case his Lordship referred to the appellant's appeal to the Secretary of State against his dismissal and commented: "But there is no general rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in Court." He added that the Secretary of State had not given his own independent decision of dismissal of the appellant, so that "the only operative decision (was) that of the watch committee", which he held to bea nullity. The impotence of the Review Tribunal makes this proposition directly applicable to the

In Calvin v. Carr (supra) at p.592 it was made clear by

"(N)o clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. Examples of this are De Verteuil v. Knaggs £19181] AC 557, 563; Posluns v. Toronto Stock Exchange and Gardiner (1965) 53 DLR (2d) 193; In re Clark and Ontario Securities Commission (1966) 56 DLR (2d) 585; In re Chromex Nickel Mines Ltd. (1970) 16 DLR (3d) 273; and see also Ridge v. Baldwin £19641 AC 40, 79, per Lord Reid.

At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc.) the conclusion is reached that a complainant has the right to

nothing less than a fair hearing both at the original and at the appeal stage."

It will be noticed that employment cases are specifically mentioned as possibly demanding a fair hearing at both stages.

At p.593 it was stated, with reference to what were called in the

"In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has beena fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision, These are all matters (and no doubt there are others) which the court must consider."

In my opinion, the reasoning in this passage is applicable to the present case. If the regulations are assumed to be valid, they nevertheless provided a less than perfect appeal process. And, whether or not the Review Tribunal had the means to make a full and fair inquiry, it did not do so, at least in respect of the issue of the possibility of transferring Mr. Colpitts to a position outside the Finance and Accounting department. I shall later discuss aspects of the Tribunal's

denied natural justice when the original decision to retire him was made. He was not given any opportunity to answer the matters which swayed the delegate. He did not see the Commonwealth Medical Officer's report, and was not notified that his retirement pursuant to s.56 was under consideration. In making his decision, the delegate paid particular regard to the matters contained in a report of the Acting Medical Redeployment Officer. That report refers to "threats of violence towards various staff members" evoked by the direction to proceed on sick leave - a very damaging allegation the effect of which, in the circumstances of his illness and the very strained relations between him and his superiors at the time, Mr. Colpitts might quite possibly have been able to lessen. The report aiso extracts from a report of the treating psychiatrist, Dr. Kjorrefjord, a passage including: "He has a suspicious nature with some paranoia but it is difficult to ascertain if they are 'delusions' of persecution as they appear to be related to his work situation and may well have a basis in reality." This

certainly suggests the possibility of another side to be heard.

It was suggested by counsel for the Commission that Mr. Colipitts had been heard by his supervisors. (A similar argument was rejected in Dixon v. Commonwealth (1981) 55 FLR 34 at 48.)

But a theme of the medical reports was that a significant part of

his illness involved his reaction to authority figures, and any explanations to his supervisors, fractured as his illness was likely to have made them, were given at a time when he had not been diagnosed as ill, or not to the knowledge of the supervisors. Indeed, it will be recailed his superior recommended he be charged with misconduct as an officer. A discussion with a supervisor, conducted on the basis he was fully responsible for his actions, would not have even attempted to deal with the issue which arose for determination. Furthermore, a man suffering from mental illness is quite likely to fail to do himself justice upon matters bound up with his illness, which he might be able to explain when recovered. The issue for the delegate was not so much what he had done during his illness as whether those things were truly attributable to a condition from which he had now recovered. For the report of the specialist nominated by the Government Medical Officer, Dr. Gatenby, was clear that very significant recovery had occurred, that he was "now quite fit to resume his work", and that he was maintaining, and would continue his treatment with Dr. Kjorrefjord. If, then, the matters relied upon to suggest that he was "unable to discharge or incapable of discharging the duties of his position" had arisen from his illness, there was much to be said for the proposition that the situation had entirely changed. As to whether those matters had arisen from his illness, Mr. Colpitts had not been heard, since the enquiries at the time of each incident had simply not been directed to that issue, but to an issue the delegate had no right to take into account at all, Lhe

Under the circumstances, did the law require that Mr, Colpitts be given an opportunity to be heard? In Ridge v. Baldwin (£19641 AC 40 at 65-6, Lord Reid referred to the application of the principles of naturai justice to the case of "dismissal from an office where there must be something against a man to warrant his dismissal". (I interpolate that I cannot distinguish such a case from a compulsory retirement where there must be shown against a man an incapacity, in order to warrant

the compulsory retirement: cf. O'Rourke v. Miller (1985) 59 ALJUR

421 at 424.) Lord Reid said: "There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation." I think in the circumstances of the present matter this principle applied, and the decision of the delegate must, on this ground also, be set aside. That this case should not be distinguished from Ridge v.

Baldwin and O'Rourke v. Miller is perhaps confirmed by the fact

that, when it got to the Review Tribunal, it was regarded as indeed a "dismissal" - see the affidavit of the Respondent Trevor Sutton who so described it himself, and heard the Chairman so

As it has been contended on behalf of the Commission that the decision of the delegate was superseded by that of the

Review Tribunal, and although for reasons I have given I do not

accept this submission, I shall consider also the validity of the

Review Tribunal's decision, as an independent question. Earlier in these reasons, I have set out material paragraphs of the reasons of the Tribunal. It will have been seen that the Tribunal considered "(t)he first step in reviewing the decision process was to establish if (Mr. Colpitts was) correctly deemed to be unable to discharge the duties of (his) position prior to the decision. The Tribunal felt that the evidence of (his) Telecom Supervisors was, in general terms, that (he was) so unable." The reference to "reviewing the decision process" is revealing. The statutory imperative, and the applicant's right, was that there be review of the decision, not the process by which the delegate had arrived at it. It is judicial review, as

distinct from administrative review, which is concerned with the

decision-making process: Council of Civil Service Unions v.

Minister for the Civil Service £19853 1 AC 374 at 401, 414. A short false step may set one's feet upon the wrong path. In concentrating upon the decision process of the delegate, the Tribunal failed entirely to consider the ability of the applicant to discharge the duties of his position upon the material available at the time of the hearing before the Tribunal. It simply considered whether he was correctly deemed unable to do so by the decision of the delegate. The Tribunal accordingly ignored, on this issue, the evidence of continued recovery, given by Dr. Kjorrefjord, upon which it relied on the further question of possible transfer. It just did not consider whether the recommendation of minimal contact with other personnel still

applied. (Indeed it does not seem to have considered the

question whether that recommendation was ever based on persisting medical incapacity, or was merely, as Mr. Katz contended, a common sense precaution in view of what had happened in the past. Both psychiatrists regarded Mr. Colpitts as quite fit for his previous work. But the Tribunal's reasons, as formulated, turn on the evidence of supervisors about his incapacity at an earlier period when, or at least for much of which, he was admittedly

In my opinion the regulations clearly contemplate a full inquiry into the position at the time of the review, and not merely as at the time of the original decision. This is the normal position in a wide range of appeals to an appellate court,

and I do not see why an administrative review should be more

rigidly confined. (See Builders' Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (supra) at 619~20.) In Drake v.

Minister for Immigration (1979) 24 ALR 577 at 589 Bowen C.J. and Deane J. said with reference to the Administrative Appeals

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."

In Sullivan v. Department of Transport (1978) 20 ALR 323 (a case

concerned with whether a transient psychotic illness debarred a

pilot the issue of a license) Smithers J. at p.332 referred to the "current and probable future health of the appellant" in terms clearly related, not to the time of the original decision of the department, but to the time of the decision of the

Administrative Appeals Tribunal. Deane J. and Fisher J. at p.346

Particularly having regard to the provision of the Regulations for further consideration by the Commission itself at

the end of the appeal process, I think the Tribunal was bound, as

amatter of law, to consider the current condition of the

applicant, and accordingly to have regard, on the primary issue of whether this case fell within s.56 at all, to the evidence of Dr. Kjorrefjord. Otherwise, an officer, retired under s.56 for coronary insufficiency, for example, who applied for review, and in the meantime underwent wholly successful by-pass surgery, could have his application dismissed without regard to his recovery. (Cf. the remarks of Bowen C.J. in Peko-Wallsend Ltd. &

Ors. v. Minister for Aboriginal Affairs & Anor. (1985) 59 ALR 51

It was also submitted that the Review Tribunal denied

the applicant natural justice by its reception of further Material adverse to his case without giving him any opportunity to make a reply. I have already referred, in outlining the facts, to the circumstances upon which this submission is founded. It will be apparent the Tribunal, having reached at

least a' tentative conclusion favourable to the applicant on the

issue arising under s.56(1)(a) {and perhaps also under 8.56(1)(b)), referred a vital question posed by that issue to the Commission, and received in answer material which asserted a proposition unfavourable to the applicant's case, and which purported (though wrongly) to dispose of the Tribunal''s tentative conclusion. The reception of this further material was not disclosed to the applicant, who accordingly had no opportunity to answer it. It bore directly upon an issue he had raised, and which was one of the decisive issues in the review, and it put forward a new contention, adverse to him, upon that issue. In my opinion it is impossible to reconcile the Tribunal's failure to give the applicant an opportunity to answer this material with

(The applicant also relied on the Tribunal's reception of some other documents the contents of which were kept from him, and the interview by the Tribunal of witnesses, particularly supervisors, without notice to him, but I do not find it necessary to consider these additional complaints. The matter I

The applicable principle was formulated by Mason J. in

Kioa v. West, (Full High Court, as yet unreported, 18/12/85) as

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to he

made against him and to be given an opportunity of replying to it (Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106, at p.109; Salemi (No. 2) (1977) 137 CLR 396 at p.419; Ratu (1977) 137 CLR 461 at p.476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487, at pp.498-499; FAI Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342, at pp.360, 376-77; Annamunthodo v. Oilfields Workers' Trade Union £19613 A.C. 945). The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."

Even in the case of an application for a temporary entry permit

by a prohibited immigrant, where "in the ordinary course... there is no occasion for the principles of natural justice to be called

"But if in fact the decision-maker intends to reject the application... on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter... In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham (1983) 40 A.L.R. 123, is another, as are Reg. v. Gaming

Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 Q.B. 417, at p.431; and

Daganayasi v. Minister of Immigration [1980] 2N.Z.L.R. 130."

In Daganayasi v. Minister of Immigration (1980) 2 NZLR

130 at 143, Cooke J. said: "The appellant should have a fair

. opportunity of correcting or contradicting any relevant statement

prejudicial to his or her view." (See also De Verteuil v. Knaggs

£1918] AC 557 at 560-1; Ansell v. Welis (1982) 43 ALR 41 at 62;

Dixon v. Commonwealth (1981) 55 FLR 34 at 40-1, 48; In re Gosling

(1943) 43 SR(NSW) 313 at 317.) In Req. v. Gaming Board for Great Britain; ex parte Benaim and Khaida £1970] 2 QB 417 at 430, Lord

Denning, with the agreement of Lord Wilberforce and Phillimore L.J., contrasted what is required in considering the issue of a certificate for a gaming house with the higher obligation in a case such as' the present: "But Ido not think that they need

quote chapter and verse against him as if they were dismissing

him from an office, as in Ridge v. Baldwin £19641 AC 40; or

depriving him of his property, as in Cooper v. Wandsworth Board

of Works (1863) 14 CBNS 180." In In re Pergamon Press Ltd.

"For I take it to be axiomatic that the inspectors must not use the evidence of a

witness so as to make it the basis of an adverse finding unless they give the party

affected sufficient information to enable him to deal with it."

In Wiseman v. Borneman £1971] AC 297 a right to see and

reply to a counter-statement lodged in answer to a claim was

denied only by reason of the special nature of the proceedings

which led to no final determination (see per Lord Reid at p.308).

In Kanda v. Government of Malaya £19621 AC 322 at 337,

after reiterating that "whoever has to adjudicate must not hear

evidence or receive representations from one side behind the back of the other", Lord Denning said: "The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so." In the present case, I have already indicated my view that there was actual prejudice in what occurred. But that the decision would be vitiated, even without proof of any actual prejudice, is shown by

Kanda's Case and also by General Medical Council v. Spackman

£1943] AC 627 at 644-5 (per Lord Wright); Hamblin v. Duffy (No.

2. (1981) 37 ALR 297 at 307; Ridge v. Baldwin (Supra) at 68;

Annamunthodo v. Oilfields Workers' Trade Union £19613 AC 945 at 956; and Kioa's Case (supra), especially per Wilson J. and Deane

There was undoubtedly, upon the face of the material before the Tribunal, much to be said against Mr. Colpitts. But it would be a complete misunderstanding of the principles of natural justice to regard that fact as in any way weakening the case for their application. The principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless. (See Kioa's Case, per Deane J.) In the present case, error of law and denial of natural justice left areas of available or possible defence unexplored, either by the delegate, or by the Review Tribunal. Furthermore, the duty to accord natural justice is a duty owed,

not merely to a party, but to the integrity of the institution of

administration or review. This is the essence of the citation

which Dixon C.J. and Webb J. made in The Commissioner of Police

v. Tanos (1958) 98 CLR 383 at 395 from Seneca's Medea: though one who has judged without hearing the other side may have reached a just conclusion, he has certainly not been just. It is because the principle has been universally recognised as being at the core of a judgment worthy of respect that it is appropriate

to call it a principle of natural justice (see the discussion in

de Smith, Judicial Review of Administrative Action, 4th ed.

pp.156-8). "The law's first duty", Goethe made his Faust assert

Finally, regulation 34 requires the Review Tribunal to

"undertake a full review" of the decision. In Finch v. Goldstein

(1981) 36 ALR 287 at 304-5 Ellicott J. held: "Where a tribunal

has a duty to inquire the courts will review its conduct in order to determine whether that duty has been fulfilled." (See also

Hamblin v. Duffy (No. 2) (supra) at p.308.) In my view, the

failure to pursue the questions which I have already referred to as arising out of the incompleteness of the material furnished, concerning the asserted unavailability of positions to which Mr. Colpitts could be transferred, or to give Mr. Colpitts an opportunity to raise these questions, constituted a breach of the

In the result, I make declarations that each of the

decisions of the Commission by its delegate and the Review

Tribunal is invalid (see Delta Properties Pty. Ltd. v. Brisbane

City Council (1955) 95 CLR 11 at 18), I set aside the decision that the, applicant be retired under s.56 of the Telecommunications Act 1975, and I order that the Commission pay

preceding forty-two (42) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett.