Douglas, Heather Catharine v Allen, Robert Norman & Ors [1984] FCA 75

Federal Court of Australia|1984-04-03|Before: Moriing J, Morling J

Administrative law - judicial review - Commonwealth Teaching Service - Australian Capitai Territory Tachnical and Further Education component - application 'for Master Teacher

Classification - cecommendation by Eligibility Committee and Review Committee - adopticn of recommendation by Director of

service - whether decisions subject to judicial ceview - extension of time to institutes proceedings - whether rules or natural justice apply toe decisions - legitimate expectations - procedure for applicaticns set down in

Handbook - expectation that appizcation to be daealt with in Broad contormity with Handbook - whether breach of rules of Mmatural justice - necessity for cral hearing or further enquiries

Administrative Decisions (Judicial Review) Act 1377 Commonwealth Teacning Service Act 1972 Commonweaith Functions (Statutes Review) Act 1981 Part VIII

RAY JOLLIFYE, CAMES CHARLES VENZS, EWAN EDWIN HAZEL DOROTHY PATRICIA ARNO and ROBERT VIRGONA

Seccnd Respondents PHILLIP JOHN IRBOTSON, WAYNE KENNETH BRADLEY and PATRICIA HACKETT

No. ACT GS4 of 1983 DISTRICT REGISTRY GENERAL DIVISION BETWEEN : HEATHER CATHARINE SOUGLAS Applicant AND: ROBERT NORMAN ALLEN

AND: RAY JOLLISSE. JAMES CHARLES VENIS, EWAN EDWIN HAZELL, DOROTHY PATRICIA ARNO and ROBERT VIRGONA

AND: PHILLIP JCEN ZB50TSCN, WAYNE KENNETH BRADLEY and PATRICTA HACKETT

ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 3 April 1984 WHERE MADE 3 Sydney

IN THE FEDERAL COURT CF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

BETWEEN : HEATHER CATHARINE POUGLAS Applicant AND: ROBERT NORMAN ALLEN

EWAN EDWIN HAZELL, poner PATRICIA ARNO and ROBERT VIRGCNA

Second Respondents AND: PHILLIP JOHN IBBOTSON, WAYNE KENNETH BRADLEY and PATRICIA HACKETT

The applicant Mrs Heather Catharine Douglas seeks orders of review under the Administrative Decisions (Judictal Review) Act 1977 (the "Judicial Review Act"y. Mrs Douglas is an officer cf the Commonwealth Teacning Service

established by the Commonwealth Teacning Service Act 1972,

as amended (the "Teaching Service Act"). In 1982 she

applied to be classified as eligible for promotion to Master Teacher classification within the Australian Capital Territory Technical and Further Education Component of cwne Commonwealth Teaching Service. She was unsuccessful in her application and now seeks orders of review in respect of a number of decisions which she alleges were made in the course of dealing with her appiication, and in respect of conduct said to have been engaged by officers of the

Section 19 of the Teaching Service Act which was enacted in its present form by the Commonwealth Functions (Statutes Review) Act 1981, provides that the Commonwealth Teaching Service established and in force immediately before the commencement of that section is continued in existence for all purposes. The Service is divided into four components. The relevant component for present purposes 15 the Australian Capital Territory Technical and Further Education component (the "TAFE component"). The first respondent is the Director of the Office of the Australian Capital Territory Further Education in the Department of Education. He 1s responsible for the overall organization or the Australian Capital Territory Further Education system. He is designated as the relevant authority for the

TAFE component of the Commonwealth Teaching Serv-ce under

The second respondents are the members of an Eligisility Committee whic ccnsidered Mrs Beuglas' application for assessment of her eligibilicy to appiy for Master Teacher classification and recommended that sne be deemed ineligible for such classification. The third respondents are the members of a Review Committee which considered the recommendation of the Eligibiiity Committee

and decided that the recommendation should be supported.

Mrs Douglas claims that the decisions of the Eligibility Committee and the Review Committee to recommend against her application and the decision of the Director to accept the recommendation were decisions of an administrative character which are reviewable under the Judicial Review Act. She claims to be aggrieved by the making of- the decisions because, so it is alleged, breaches of the rules of natural justice occurred in connection with the making of the decisions. A claim that a decision to adopt certain procedures laid down in a Handbook (to which I shall presently refer) was reviewable, was inciuded in the

the Woden College of Technical and Further Education in the Department of Secretarial Studies as a Secretarial Studies teacher. On 16 April 1982 she lodged an application for ner

assessment for elibility to apply for Master Teacher

Classizication in the Australian Capital Terrictery TAFE component of the Commonwealth Teaching Service. In due course she received an acxnowledgement of her application

and was informed that she was eligibles to be assessed.

' The applicant claims that breaches of the rules cf natural justice occurred when her application was dealt with. Since her application was dealt with in accordance with established procedures for assessing. eligibility for Master Teacher classification, it is necessary to refer in

The Master Teacher classification was introduced into the TAFE component in 1979 by the then Commonweaith Teaching Service Commission. The aims of the classification are set out in paras. 1.3 and 1.4 of the 1982 Handbook of Instructions and Guidelines for Peer Assessment and Master Teacher Eligibility ("the Handbook"). The Handbook was issued by the Commonwealth Teaching Service. The practical effect of achieving Master Teaching status 1s that a Bard 1 teacher 1s paid at the higher rate applicable to Band 2 classification. Mrs Douglas is a Band l' teacher. There are five Band levels. A Band 1 teacher who achieves Master Teacher status remains in his or her 3and 1 position. That 1s to say, achievement of Master Teacher status does not involve a promotion or transfer,but does iead co an increase

The procedures invoived in Master Teacher assessment were developed in consultation with and with the concurrence of a body known as the Advisory Committee to the Commonwealth Teaching Service Commissioner. This body comprised the Commissioner as Chairman and representatives of other groups including the Australian Capitai Territory Teachers' Federation. In summary, the process involved in

(a) A teacher desiring assessment made formal application to the Director.

(b) If the teacher met the qualifications set out in the Handbook, an assessment panel was formed. This consisted of three members, being a chairperson appointed by the Principal of the College in which the applicant was located, and two other members selected by the chairperson from persons nominated by the teacher.

(ad) The panel then considered the application and prepared its report. It held discussions with the teacher and gathered information from whatever sources it considered appropriate. The teacher received a copy of the panel's report.

(e) The report was then examined by an Eligibility Committee comprising a chairperson nominated by the Director and four officers nominated jointly

report and any supplementary information submitted by the

teacher, the Eligibility Committee made a recommendation to the

Director. Before recommending against eligibility, <he Committee discussed with the assessment panei the areas, if any, in which the teacher nad failed to reach the lieve:

of performance expected and considered a further statement frcm the panel on those areas. Reasons

for recommending against eligibility were provided to the Director.

The Director then decided on the recommendations 'made to him and advised the teachers accordingly. Unsuccessful applicants were advised of their right of appeal to a Review Committee.

If a review was sought, a Review Committee comprising a chairperson nominated by the Director and two officers nominated jointly by the Teachers' Federation and the Director, were appointed.

The Review Committee then considered the following material:

(iit) a copy of the Eligibility Committee's notification to the teacher's panel, indicating the areas requiring clarification or elaboration;

(iii) the written response of the teacher's panel following its discussions with the Eligubility Committee; and

(iv) the reasons given by the Eligibility Committee when finally recommending to 'he

~ xs, Director that any particular applicant be deemed ineligible.

The Director then decided on the recommendation ~ and advised the applicant. ~

Neither the Eligibility Committee nor the Review Committee had any personal

contact with the teacher during their ceiiberations.

The Chairman, of the assessment panel constituted to consider Mrs Douglas's application Zor eliagzbility was Mr Michael Moore. In 1982 he was the Head of the School of Community Education. Although he knew who Mrs Douglas was, he had had no contact with her before his appointment as

Mrs Douglas submitted to Mr Moore the names of three Band 2 teachers, none of whom had any professional knowledge of her. From the names submitted by Mrs Douglas Mr Moore chose that of Mr T. Farley. Mrs Douglas also submitted the names of three of her Band 1 peers to Mr Moore, and from these names Mr Moore chose that of Mrs M Ball. In the result, the assessment panel consisted of three people none of whom had had any dzrect personal professional knowledge of the applicant orior to the

The panel met with Mrs Douglas and considered comprehensive documentary material submitted by her. Each

panel member read this material and discussed it extensively

challenged, an assessment strategy was worked out and agreed

between the panel members and Mrs Douglas. She attenced ail

meetings of the panel. Panei members attenced several o her classes. About thirty hours sof her 'teaching was surveyed. In addition, Mrs Douglas submitted considerable documentary evidence of teaching vertormed prior to the assessment process. Following each period of teaching observed panel mempers had meetings and d:scussions with

Members of the panel interviewed a range of people concerning Mrs Douglas' professional performance. These included all her full-time colleagues, some of her part-time colleagues, students, Head of Department, and others. In addition, some of her former colleagues were contacted. Mr Moore estimated that about 25 to 28 separate individuals

During the assessment process meetings were frequently held with Mrs Douglas and ail evidence gathered

was discussed at length with her. Mr Moore estimated that about 15 separate meetings were held between the panei and Mrs Douglas, the average duration of the meetings being at least two hours. She also initiated _discusszons with individual members of the panel and Mr Moore himself had at least five such meetings with her, gach lasting more than

According to Mr Moore, the frequency and length of these discussions were occasioned Sy the panel's attempt to be absolutely fair to Mrs Couglas. He said that she was

' unwilling to accept any negative comment. She claimed that such comment was either wrong or deliberately vindictive and she required the panel to gather alternative or new evidence which she claimed would prove her point of view. Mr Moore

said that sometimes this was in fact the case, and at other

During the assessment process the panel members showed and discussed with Mrs Douglas drafts of sections of the report they were proposing to make. She continualiy queried and objected to any negative comment in the report. She required the panel to gather additional evidence on Matters dealt with in the report, and attempted to prove

internal illogicality in the report. She also claimed that

According to Mr Moore he gave more than 150 hours of his time to the assessment of Mrs Douglas. He sar:d that

the other two panel members each contributed in excess of

The panel's report was submitted co the Darecter of the Office of Australian Capital Territory Furtner Education

on or about 6 August 1982. A ccpy of the report had alreacy

been received by Mrs Douglas herseif on 2 August 1332. After sne received 17 she gave to the panel a further statement making comments upon the panel's report. Section 3.8 of the report made observations upon, inter alia. Mrs Douglas' relationships with some of her senior coilsacues,

On 12 August 1982 Mr R Virgona, the Chazrman of the Eligibility Committee and one of the second respondents, wrote to Mrs Douglas and to the panel members indicating that a meeting would be held between the panei and the Eligibility Committee to discuss the panel's report, especially certain specified sections of it. The letter listed a number of sections of the report. Beside some of the enumerated sections a tick was placed, but no tick was placed against other sections. Section 3.8 appeared on the list without a tick. Mrs Douglas said that she formec the opinion that the Eligibility Committee was satisfied with the matters raised by the assessment panel 1m section 3.8 because no tick had been placed alongside it. I do not think this was an assumption which she was entitled to make. The fact that the Committee did not wish to raise specifically with the panel the contents of section 3.8 gave no indication of the Committee's views on the matters

The letter of 12 August fixed a time and place for the meeting between the Eligibility Committee and the assessment panel. It also advised Mrs Douglas that:

"You have the right to read, consider and cemment on the panels (sic) resume of che

interview at this time and that the Eligibility Committee will consider any such comments before making its recommendation to the Director."

The meeting between the Eligibility Committee and the assessment panel took place on 18 August 1982. There was some general discussion of the assessment process and of the question whether the panel was expected to make a recommendation or not. There was also discussion of Mrs Douglas' professional impact, a matter upon which opinions varied. Mr Farley, who swore an affidavit in support of Mrs Douglas' application, said that, in h2zs cpinion, the Eligibility Committee would not have been in any doubt that the panel was recommending that Mrs Douglas be deemed eligible for Master Teacher classification. At the conclusion of the meeting, Mr Moore met with Mrs Douglas. He gave her a complete verbal summary of all that had gone on at the meeting. His discussion with her occupied more than two hours. On 18 or 19 August Mr Moore also gave her a

handwritten resume of the panel's meeting with che Eligibility Committee. Mr Moore said that he believed this handwritten report complied with the requirements of para. 2.3.5 of the 1982 Handbook. This paragraph refers to a vaply

which the panel may make to the applicant's comments on 'the

written resume of the meeting between the assessment panel

On 20 August 1982 Mrs Douglas delivered a memorandum to the Chairman of the Eligibility Committee. In this memorandum she made comments on the written resume given to her by Mr Moore. She made lengthy observations cn

her past working exper1rence and its relevance to her

Evidence was given by Mr Jolliffe, a member of the Eligibility Committee. He said the purpose of the committee was to evaluate the professional performance of applicants for Master Teacher eligibility on the basis of material contained in various reports presented to the Committee and utilizing criteria specified in the Handbook. He said the Committee read and assessed the written documents submitted on behalf of all applicants, including Mrs Dougias. In her case, these documents included a supplementary statement submitted by her after she had seen the report prepared by

Mr Jolliffe said that each memper of the Eligibility Committee used a check list to assist in the appraisal of each applicant and subsequent discussion of the application. In its discussion with Mrs Douglas' assessment

panel the Committee sought to clarify its iundavidual and

collective understanding and perception of her professional performance. Shortly after its discussion with the panel the Committee met to discuss all applicants, including Mrs Douglas. It had before i1t a written resume prepared by the panel concerning matters raised in 1ts dzscussion with the Committee. The Committee accepted this written resume as the statement referred to in s.2.3.5 of the Handbook. It also considered further written material submitted to it by Mrs Douglas. It arrived at the decision that it should recommend that Mrs Douglas be deemed ineligible to apply for the status of Master Teacher. In all, it considered 10 applications for classification as Master Teacher. It recommended that four applicants be regarded as eligible for classification, and that a further six applicants, including

On 14 September 1982 the first respondent wrote to Mrs Douglas advising her that the Eligibility Committee had recommended that she be deemed ineligible at present to apply for classification as a Master Teacher, and 'hat he proposed to accept the recommendation. She was advised that she could request the Review Committee to review her case. On 16 September 1982 she sought review of her case, and referred to a number of matters which she requested

should be brought to the attention of the Review Commictee. For the most part, the matters referred to were adverse comments by her on the objectivity and motivation of persons

On 21 September 1982 Mrs Douglas wr respondent claiming that the Eligibility Committee did not

have before it a reply from the oanel as ecified in para.

2.3.5 of the Handbook. The applicant requested that che Review Committee be provided with copies cf ali documents relating to her application for eligibility, including che

contents of her letters or 16 and 21 September 1982.

Apparently when the Review Committee met to consider the Eligibility Committee's decision it was at first unable to come to a decision because 1t was of th view that the assessment panel had failed to give a rating or judgment on what it regarded as the critical area of Mrs Douglas' professional relationships. Accordingly on 29 September 1982 the Review Committee wrote to the first respondent seeking his advice as to whether it would be appropriate for it to approach the panel to seek informaticn on that matter. The first respondent advised the Review Committee that having regard to the terms of the Handbook it was not open to the Committee to itself approach the panel. However he advised the Committee that if 1t was unmabie, for the want of information, to come to a recommendation, he

would consider referring the matter back to the Eligibility

Committee to obtain the information. The Review Commzttee dad not take up this offer. In due course 1t wrote to the

1s. "The Eligubilicy Committee based its refusal 29 grant eligibility for Master Teacner cn the grounds that Mrs Douglas diac not meet che criteria velated to 'educationally constructive

The panei identified a polarisation between varlous yespondents on this issue, but mersly reported differing points of view. There was no attempt in 32.8 to reach a balanced judgement or make a rating.

Under these circumstances, the Eligibility Committee would not have had sufficient evidence before it to make a judgement that Mrs Douglas met all criteria.

We express our concern that an applicant may have been denied Master Teacher status because

the panel did not make a judgement and the Eligibility Committee appears not to have demanded one.

That the recommendations of the Eligibility Committee that Mrs Douglas not be granted Master Teacher eligibility be supported."

Upon receiving this letter the first respondent wrote to the Chairman of the Eligibility Committee enclosing the Review Committee's letter and all the previcus papers in

Mrs Douglas' application. The letter was in the following

"The Review Committee nas given me a recommendation which may be correct in the technical sense. but which, on tne grounds cf natural justice, I cannot accept.

The Review Committee has indicated difficulty with the area of professional relationships and in particular with Section 3.8 of Form il1c. This relates to the fact that the original panel did not provide a rating or a statement setting out why the rating scale was not considerea to be applicable. I would accordingly appreciate

1t 1m the Eligibility Committee weuld caxe cne necessary acticn to remedy this."

In response to this letter the Chairman of the ligibility Committee reconvened tne committee. On 10

November 1982 he advised the first respondent that:

"The Committee in fact were unanimously agreed that they had made their valid recommendations to you previously and they reaffirmed this, stating that they had made their recommendations after due and proper consideration 'of all the permissible evidence placed before them."

The Chairman expressed some concern that, in the opinion of his Committee, the procedures that had been adopted at the

review stage were inconsistent with those outlined in the

Upon receipt of the lastmentioned letter the first respondent again spoke with the Chairman of the Eligiblity Committee. As a result of that discussion he made the

"I have discussed this with Mr Virgona. I am satisfied that the Eligibility Committee dis- charged 1ts responsibilities properly in that it discussed in depth with the panel the question ef professional relationships and was able to come to a conclusion. I accept the recommendation that Mrs Douglas not he granted

M.T. eligibility." Mr Allen said that before making the above note he

had specifically raised with the Chairman of the Eligibility

Committee the cuestion whether the absence of a rating by that Committee on Item 3.8 of the relevant form was a factor in the Committee's decision to recommend against Master Teacher eligibility. The Chairman advised him that the matter of a rating was not significant and that the ratin

was based on an in depth assessment of all the areas covered

On 27 January 1983 the first respondent wrote to Mrs Douglas advising her that the Review Committee had met and had not recommended that the recommendation of the Eligibility Committee be varied. He said that he had therefore accepted the recommendation that she be deemed ineligible at present to apply for classification as a Master Teacher. He attached to the letter a copy of the reasons given by the Eligibility Committee for the

recommendation. Those reasons were in the following terms:

"From the evidence, the Committee assesses you as having sound teaching skills, but as requiring to place far greater emphasis on building educationally constructive professional relationships with your colleagues within th College, relationships through which one spreads one's professional influence, relationships which the Committee sees as necessary for those

applicants whom it recommends for Master Teacher eligibility."

respondent stating that she considered the reasons given by

t the Eligibility Committee and upheid by the Review Committee wer? not adequate. She requested a detailed explanation of

the reasons for the Review Committees' for the first respondent's decision. Her letter concluded with the observation that she was aware that she was entitled to such an explanation under s.13 of the Judicial

On 7 March 1983 Mrs Douglas was furnished with a comprehensive statement pursuant tos.13 of the Judicial Review Act. The present application was not commenced until 28 November 1983. The reasons for the delay in bringing the proceedings appear in correspondence that passed between the

solicitors for the parties and 1t is ummecessary to refer to

The first question which arises 'for consideration 1s Whether the court should make an order extending the time within which these proceedings may be brought. Counsel for the respondents stated that they had not suffered any prejudice by the delay in bringing the proceedings and he did not oppose the grant of an extension of time. Having regard to the delay in bringing the proceedings I would net have granted an extension of time had any cf the respondents been prejudiced by the delay. The absence of any such

prejudice is not, of itself, suffic1rent to -custify an

extension of time. The circumstances in which an extension

of time should be granted to permit the bringing of an application under the Judicial Review Act have deen considered in many cases. The cases are referred to in the judgment of Neaves J. in Excell v Harris & ors. (18 October 1983) and there is no occasion to refer again to cnem. As 1s pointed out in some of the cases, it is not only the interests of the applicant and the respondent that requires to be considered. In the present case, it is also necessary tO have regard to the interests of other teachers who could possibly be artfected by the granting of the relief sought by the applicant. During the course of argument I informed counsel for the applicant that I would not be minded to grant an extension of time to permit an attack to be made upon the validity of the procedures laid down in the Handbook, since such an attack, if successful, might unsettle other recommendations made by the Eligibility Committee. Counsel indicated that, if an extension of time were granted, the argument that the Handbook vrocedures were invalid would not be pressed. In these circumstances and having regard to the absence of prejudice to either the respondents or any other person, I think it is appropriate that I should make an order extending the time within which

I turn now to consider the merits or the application. The two substantial questions which arise for

consideration are, first, whether the rules of natural

justice apply to the maxing of any of the decisions sought to be reviewed, and second, whether, :f so, a breach of

those rules occurred in connection with the maxing of any of

the decisions. It was conceded that the Director's decision not to classify Mrs Douglas as a Master Teacher was an administrative decision which was reviewabie under the Judicial Review Act. The same concession was not made in respect of the decisions of the Eligibility Committee or the Review Committee. However, in the view I take of the case, it is umnecessary to give separate consideration to the question whether the Committees' decisions are reviewable under the Act. It was common ground that, for all practicable purposes, it was the Director's decision which

mattered. Success in attacking the other decisions would be

ef no avail to Mrs Douglas if the Director's decision stands. Since the Director's decision is conceded to be reviewable, it is appropriate to consider whether an order

It was contended on behalf of the applicant that she had a legitimate expectation that she would be class- ified by the Director as a Master Teacher. This peing the case, so it was submitted, a decision affecting that legitimate expectation was required to be made in accordance

with the rules of natural ju 2. Heatley v Tasmanian

C.L.R. 487; F.A.L. Insurances Limited v Winneke (1982) 41 A.L.R. 1 and Ansell v

It was submitted in the alternative that even l the applicant did not have a legitimate expectation that she would be classified as a Master Teacher she at ieast rad a legitimate expectation that she wouid be interviewed personally by the Eligibility Committee which would make its own enquiries as to any epposition to her classification. Another alternative submission was that the applicant had a legitimate expectation that, should the Elzgibility Committee not recommend her classification as a Master Teacher, the Director would himself independentiy make the

enquiries which the Eligibility Committee should have made.

To determine whether the applicant did have a requisite legitimate expectation it is necessary to refer to the nature of the application which the Director declined to grant. The applicant was a Band 1 teacher in the teaching service. She did not seek a promotion. Had she done so, the provisions of the Teaching Service Act would have applied, 30 as to give her a right of appeal to 2a Promotion Appeal Board. By applying to be classified as a Master Teacher the applicant sought a recognition of her teaching expertise which, 1f acknowledged by the Director, would have led to an increase in her salary. It was open_to any Band 1 teacher, such as the applicant, to seek Master Teacher status. However I can see nothing in the applicant's terms of employment or in any statute which could have given rise

to a legitimate expectation on her part that she would he

granted the status of a Master Teacher. In reality, she

pportunity to seek recognition of what she cla:med to de her supericr

The phrase "legitimate expectation" was first adopted by Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch. 149. Many of the cases in which the meaning of the phrase has been examined and 1ts

content discussed are referred to in Cole v Cunninghan

(1983) 49 A.L.R. 123 at p.129 et seq. There 1s nothing to be gained by embarking again upon a detailed analysis of the cases. The view expressed by Barwick C.J. in Salemi v Mackellar (No. 2) (1977) 137 C.L.R. 396 at 404 that the word "legitimate" in the phrase expresses a concept of "entitle- ment or recognition by law" has not found favour in subsequent cases. A legitimate expectation has been equated to a reasonable expectation: see Heatley's Case (supra) at

Pp- 508-9 per Aickin J. (with whom Stephen and Mason Jo.

concurred), and Attorney-General Hong Kone v Ne Yuen Shiu (1983) 2 W.L.R. 735.

"In cannot be said that the true extent of the notion that an expectation may be the foundation of a right to compel observance of 'the relevant principles of natural justice has yet been fully worked out or stated with precision. In some cases a distincticn has been drawn between cases concerning the original grant of a licence and

those concerning tne renewal of a aiready grantec. For instance, in

Insurances Limited v Winneke (1982) 56 A 388 cn@ majority aeld that in the circumstances of that case an insurance company wnich alrzady neld a licence to transact workers' compensation insurance business in Victoria was entitled to know tne reasons why its licence was not to be renewed and toa fair opportunity tc answer allegations of misconduct against 12. The fact thac it already held a Licence was basic to the Court's finding. Although tne company haa no legal right to the renewal of its licence it was held that it had a legitimate expectation that 1t would be renewed."

It is to be observed that Aickin J. Lert open the question of the ambit of the cases in which a "Legitimate

"The exact extent of that expression has not been determined but it certainly applies to renewal

of licences to carry ona particular business where there is no statutory right of renewal."

He went on to point out the unfairness which could result to a person whose licence to carry on a business is not renewed, such a person may have built up a business an expended money on assets on the basis of an expectation of

Court considering the circumstances in which a "legitimate expectation" couid be said to arise said chat 'The gate (was) ajar ...". The Court empraced she view that a legitimate expectation may be found in che circumstances

postulated oy the Privy Council in the folicwing passage from 1ts decision in Attorney-General sf Yong Kong v Na Yuen Shiu (supra) at o.741:

case in which the requisite "legitimate expectation" wili be found to exist, I reject the argument that the circumstances of the present case gave rise to a legitimate or reascnable expectation that the applicant would be classified as a Master Teacher. Her position was little different from that of a person who applies for a position in the Public Service. In such a case, in the absence of very special facts such as were present in Cole v Cunningham, an applicant does not have any reasonable expectation that he will be appointed or afforded an opportunity of being heard before the appointment is made. The applicant was merely one of a number of persons who were in a position to seek recognition of the1r teaching skills. It was open to any Band 1 teacher to seek to have his or her teaching skills recognised by achieving Master Teacher status. Mrs Douglas had no greater expectation 'han any other Rand 1 taacner cf

being granted such status. I do not say for cone moment that

she is not a very experienced and highly ovrcfessicnai

teacher. The evidence makes it clear that she ils. Nevertheless neither the Director nor any person on 1s behalf had done anything to cause her tc believe that she would be classified as a Master Teacher. There is nothing in the legislation which gives her any right to such a Classification. Nor do the terms of her employment point to "any such right, or even any expectation of such an

I turn now to consider the applicant's alternative arguments. I have already referred to the #laborate provision made in the Handbook for the consideration of applications for Master Teacher classification. Every Band l teacher knew of those provisions. It was no doubt convenient, both to the Director and to Band 1 teachers, to have the procedures codified and set out clearly in the Handbook. The use of an assessment panel to collect information for consideration by the Eligibility Committee (and by the Director, if necessary) was an integral part of those procedures. It was to be expected that the assessment panel might refer to unfavourable as well as favourable comments on any application. The procedure laid down in the Handbook for consultation between the panel and the Eligibility Committee made it plain that the Committee would rely on the panel's enquiries where it thought apreropriate to do so. These procedures also made it plain that the

Director might well decide to act upon the recommendation of

the Eligibility Committee and, a fortiori, a recommencation of the Eligibility Committee which was ccnfirmed by the

Review Committee. In these circumstances the applicant did

not have any legitimate or reasonable expectations of

kind referred to in the alternative submissicns put on he

behalf. I can find no basis =n the Handbook or elsewnhers

However, this does not mean that the applicant did not have a legitimate or reasonable expectation of any kind. In my opinion the 1ssue of the Handbook to, inter alia, Band l teachers with the imprimatur of the Director gave rise to a reasonable expectation in the applicant that her

application for Master Teacher classification would be dealt

with substantially in accordance with the sxsrocedures laid down in the Handbook. That is not to say that she had a reasonable expectation that every minor detail of those procedures would be observed. But I think that she was

entitled to expect that her application would be dealt with

in broad conformity with the Handbook requirements. As I have sought to make plain, she was not entitled to hold an expectation that she would actually be granted Master Teacher classification. But she was entitled to hold the

more limited expectation to which I have just referred. That expectation would have been fortified by the

circumstance that the contents of the Handbook were

apparently discussed at a meeting attended by the applicant

at or about the time she made her application. The meeting

was held at the Canberra College of Technical and Further Education and was attended by senior officers of the Education Department. The contents of the Handbook were discussed and it was made clear to the applicant that the Handbook requirements would need to be followed by intencing applicants. It is to be remembered that although Master Teacher classification was not strictly a promotion, it did

carry with it a significant monetary advantage as weil as

the recognition of excellence in the teaching profession.

It 1s impossible to say on the evidence in this case that there was any significant departure from the procedures laid down in the Handbook. Nor was there any breach of the rules of natural justice in the procedures adopted by the Eligibility Committee, the Review Committee, or the Director. The Lengthy recitation I have already given of the facts demonstrates that this was so. Elaborate provision was made in the Handbook to ensure that any applicant seeking Master Teacher classification had an opportunity of having her application fairly and oroperiy assessed. In the instant case, Mrs Douglas not only availed herself or the procedures in the Handbook but supplemented

those procedures by making additional personal represent-

ations to the Eligibility Committee. Tt is true that she.-

was not given a hearing in person. Sut having regard to the

thorough manner in which her assessment panel presented her

. 28. application to the Eligibility Commictee chi dxd net prejudice her. There is no requirement in law that

observance of the rules of natural justice necessarily requires that a person be given a hearing in person. See R v Amphlett (1915) 2 K.B. 223; R v Whalley, ex parte Bordin and Co. (1972) V.R. 748 at 755-6.

It was unfortunate that the Review Committee erroneously thought that the Eligibility Committee may net have properly considered the matters yeferred to in Paragraph 3.8 of the assessment panel's report. The oral evidence given in the case leaves me in no doubt that "he absence of a formal rating on that paragraph (which seems to have been of concern to the Review Committee) in no way

Counsel for the applicant argued that it was incumbent upon the Eligibility Committee to make further enquiries to investigate any area of conflict between the

applicant and her immediate superiors. The Committee did,

in fact, hold a lengthy discussion witn 'the members of the

assessment panel whose report dispassionately discussed 'his

matter. There is nothing in the Handbook, or in the rules

of natural justice, which would have required the Committee to have taken the enquiries any further. It was not a case in which any charge of misconduct had been made agaznst the

applicant. Nor was it a case in which the applicanc's

superior had lodged a complaint against her. If the Committee felt it had no need of furtner material ocefore making a recommendation to the Director, there was no

It was not suggested in argument, nor could it have been, that it was a denial of natural justice for the Review Committee and the Director to take into account and have regard to the recommendation of the Eligibility Committee. In my opinion the Director acted with scrupulous fairness in considering Mrs Douglas' application. Because of the terms of the Review Committee's report to him he was at pains to satisfy himself that the Eligibility Committee had properly

In acase in which the rules of natural justice apply the tribunal or authority whose decision may adversely affect the legitimate or reasonable expectations of another must act with fairness, and what 1s faz:r will depend upon the circumstances of each case. See University of Ceyion v Fernando (1960) 1 W.L.R. 223, Mobil 011 Austrai:a Pty Limited v Federal Commissioner of Taxation (1963) 113 C.i.R. 475 at p.504, R. v Commonwealth Conciliation and Arbitration Commission, Ex parte Angliss Group (1969) 122 C.L.R. 546 at 552.3 and Ansell v Wells (1982) 43 A.L.R. 41. I am Satisfied that there was no breach of the rules of natural

At a glance

Court

Decision date

Before

Source

Judgment (203 paragraphs)

Cited By (1)