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

Federal Court of Australia|1986-01-09|Before: Burchett J

ADJR Application - Compulsory retirement of employee under s.56 of the Telecommunications Act 1975 - Natural justice - Whether regulations constituting review tribunal are valid - Meaning of "review" - Statutory interpretation, word taken in legal sense - Whether valid provision by regulation for review is an implied condition of the statutory power to retire - Whether provision for review by a tribunal without power to alter the decision, having power only to recommend, dispenses with right to natural justice in respect of the original decision - Whether the exercise of such a right of review deprives the applicant of the right to complain thereafter of denial of natural justice in respect of the original decision - Whether natural justice must be accorded when the original decision 1s re-considered upon recommendation of the reviewing tribunal - Nature of administrative review and fresh evidence - Receipt by tribunal of additional material not disclosed to the applicant.

Administrative Decisions (Judicial Review) Act 1977, s.5 Telecommunications Act 1975, s.56

£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;

(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,

At a glance

Court

Decision date

Before

Source

Judgment (326 paragraphs)

Legislation Cited (1)

Cases Cited (23)