FRANKS v ROADS & TRAFFIC AUTHORITY

Held had powers. GREAT Act s48(2); Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234; re Coldham, ex parte Brideson (No 2) (1990) 170 CLR 267; Smith v Allen (1993) 21 NSWLR 52; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455 considered.

Giles AJA The appellant Mr Gregory Franks was Manager of the Eden Motor Registry of the respondent Roads & Traffic Authority (the RTA). After an internal investigation of a number of matters going to his conduct as Manager, by a letter dated 8 December 1994 Mr Ulf Fraser, Director, Southern Region of the RTA, informed Mr Franks that he had decided to demote him to a different position. Mr Franks appealed against that decision to the Government and Related Employees Appeal Tribunal (the Tribunal) constituted under the Government and Related Employees Appeal Tribunal Act (the Act). His appeal was heard by the Tribunal on 21 and 22 March and 4 and 24 April 1995. On 15 May 1995 the Tribunal published a decision in which it found proved the allegations on which the RTA had relied before it. On 20 June 1995 the Tribunal heard submissions on what was described as the question of penalty, and on 27 June 1995 it published a decision which concluded, "The Tribunal orders that the appellant be dismissed from his employment with the RTA with effect from the date of this decision. The orders of demotion and transfer the subject of the appeal are otherwise confirmed."

Mr Franks appealed to this Court. Pursuant to s54 of the Act, his appeal is against "any decision of the Tribunal on a question of law'". There were four grounds of appeal in the amended notice of appeal.

"The Tribunal erred in law by not finding that the respondent's decision to demote and transfer the appellant was void as the respondent did not comply with its own policy and guidelines in relation to the investigation of disciplinary matters when there was reason to believe a criminal offence may have been committed which was a breach of procedural fairness."

On 17 December 1993 Mr Franks was interviewed by Mr Schumacher, an officer of the Group Audit Office within the RTA. The interview dealt with four matters, namely -

(a) that in September 1989 Mr Franks fraudulently issued to himself a New South Wales driver's licence in the name of Gregg Andrew Phillips;

(b) that, contrary to the RTA's policy, Mr Franks granted to himself under the name Gregg Phillips a contract to clean the Eden Motor Registry;

(c) that Mr Franks used the false licence by producing it to the police when, while driving his motor vehicle, he was stopped for speeding; and

(d) that Mr Franks conspired to defame a fellow employee, Mr Michael Romano, in relation to whether Mr Romano was performing his duties in a satisfactory manner.

On 1 July 1994 Mr Franks was interviewed by Mr Fraser. The interview dealt with aspects of the same matters. At one point Mr Franks expressed concern that in a report produced in the course of the interview there was reference to the possibility of criminal charges, and said that "if that is the case and the Roads & Traffic Authority or the Police Department believe I had been involved in criminal activity then I could put it to you that I should be charged and given the opportunity to clear my name in court"; at a later point, he said that "if you have a case and if the police believe they have a case that I have done something dishonest that the matter should be brought before the police and I should be given the opportunity to address that matter in court. "

In the letter of 8 December 1994, after responding to a submission made by a solicitor for Mr Franks dealing with the burden and standard of proof, Mr Fraser wrote -

"Having reviewed all material available to me from the investigation into your conduct as the Manager, Eden Motor Registry, I have decided to demote you to Clerical Officer Grade 2, Year 2 and for you to be appointed to the position of Process Clerk Grade 1/2, Administrative Centre, Bega. -

¢ Lack of candour in responses to various questions put during the investigation concerning the events of 23 April 1991, when your vehicle was stopped for speeding by a Police Officer on the Yass Road, Queanbeyan.

• in not maintaining a cleaning tender file within the Eden Motor Registry and not keeping supporting documentation on tender applications for the cleaning contract in question thereon.

• in keeping the cleaning tender form in the name of Phillips in your residence. It was only when pressed that you supplied this document.

• in allowing the cleaning contract in the name of Phillips to extend for 12 months beyond its expiry date without approval.

• in allowing unauthorised personnel entry to the Eden Motor Registry to carry out cleaning duties.

• payment of monies to unauthorised personnel to clean the Registry.

Upon receipt of this letter, you are to report to the Administrative Manager, Bega Administrative Centre, Mr Bernie Blacka, on the next working day to take up your new position."

Mr Franks' argument on the first ground of appeal was that the RTA had not complied with its own policy and guidelines, because its Human Resources Manual provided that where in the course of a disciplinary investigation there was reason to believe that a staff member may have committed a criminal offence the internal investigation was to be suspended and the matter referred to the police for investigation before proceeding with the internal investigation and possibly disciplinary action; that the failure to adhere to this policy invalidated

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 3

the RTA's decision expressed in the letter of 8 December 1994, because there was thereby a breach of procedural fairness in arriving at that decision; and that the Tribunal erred in law by not so finding.

This ground of appeal is without substance. The Human Resources Manual (to which I have referred in the terms asserted in submissions in this Court) was not in evidence before the Tribunal. There was no other evidence directed to the RTA's policy and guidelines in relation to the investigation of disciplinary matters, or to whether there was departure from any such policy and guidelines. No submission was made to the Tribunal that the decision of the RTA was void for the reason now put forward. It is not necessary to consider whether or not, if there had been the policy and guidelines and they had not been adhered to, the RTA's decision might have been void: in the absence of the requisite evidence, and when the Tribunal was not asked to consider whether or not the RTA's decision was void for the reason now put forward, it did not err in law by failing so to find.

"The Tribunal erred in law by denying the appellant procedural fairness by hearing and determining additional matters, which were criminal in nature when the appellant had a legitimate expectation that the only matters that would be reviewed were the matters relied upon in the employer's decision to demote and transfer."

"The Tribunal erred in law by denying the appellant procedural fairness by refusing to grant an adjournment on the basis that the appellant was in no jeopardy as the additional matters, were not indictable and there was a six month limit which had passed and then at the end of its decision stating it was a matter for the respondent whether or not to refer the available evidence and the findings of the Tribunal in relation to the apparent commission by the appellant of a number of serious criminal offences to the Commissioner of Police for further investigation. "

These grounds of appeal were refined, perhaps changed, in due course of Mr Franks' submissions, and as refined will be better understood after reference to events before the Tribunal.

On 10 March 1995 there was hand delivered to Mr Franks a document outlining the RTA's case for the hearing before the Tribunal to commence on 21 March 1995. After two introductory paragraphs, the outline read -

"The Respondent alleges that in the course of his duty as the manager of the Eden Motor Registry he engaged in the following acts of misconduct/ poor management practices:

(a) on or about 29 September 1989 he did improperly complete an application for licence in the name of Gregg Andrew Phillips and cause a driver's licence in the name of Gregg Andrew Phillips to be issued by the Respondent;

(b) on or about 23 April 1991 he did improperly produce the licence issued in the name of Gregg Andrew Phillips to Senior Constable James Steven Langier;

(c) between September 1990 and October 1993 he did improperly engage himself to undertake contract cleaning work at the Eden Motor Registry under the name of Gregg Andrew Phillips;

(d) between September 1990 and October 1993 he did improperly permit a casual cleaner, Mr Richard Smith, to have access to the security code of the Eden Motor Registry and to have access to the premises of that Registry;

(e) improperly and/or carelessly permitting contract documents of the Respondent to go missing; more particularly, the contract documents allegedly entered into between the Respondent Authority and Gregg Andrew Phillips;

(f) improperly permitting a contractor of the Authority (ie Gregg Andrew Phillips) to continue to perform contract works for 12 months beyond the relevant contract date without calling for fresh tenders for such contract work;

(g) improperly keeping records of the Respondent Authority outside of the Eden Motor Registry and in the private premises of the Appellant;

(h) failing to be candid and honest with Mr Schumacher for and on behalf of the Authority in relation to issues (a), (b) and (c) above in a record of interview conducted 17 December 1993 when, by virtue of the nature of his employment contract with the Respondent Authority, the Appellant was bound to be frank, candid and to perform with utmost good faith

It is the Respondent's case that each and all of the allegations set out above entitle the Respondent, at the very least, to demote the Appellant in the manner that was done on 8 December 1994.

The Respondent further submits, however, that pursuant to s48(2) of the Government and Related Employees Appeal Tribunal Act 1980 this Tribunal would be entitled to conclude that the conduct alleged in para(a), para(b) and para(c) above, if proved, to be such that in all the circumstances the Appellant should be dismissed or, alternatively, required to resign from his employment with the Respondent."

At the commencement of the hearing before the Tribunal on 21 March 1995 Mr Franks applied for an adjournment on the ground that the RTA's case included

matters additional to those to which Mr Fraser had referred in the letter of 8 December 1994, saying that the letter had referred to "one situation of lack of candour and five poor management practices" while the outline referred to eight allegations, "Three relevant to lack of candour, five on poor management practices and it goes further in the final paragraph." The submissions then made by Mr Franks (who was represented by Mr Garry Lawler, an officer of the Public Service Association of New South Wales) included -

"Chairman: What I understand so far from your putting to me is that you say when initially interviewed all of these matters were not raised directly with the appellant. Then when he was written to there were additional matters included and now when he comes here there are further additional matters included.

Chairman: And is it your application that because he's taken by surprise in effect by these additional matters he's not ready to defend them?

Lawler: That is correct and that letter that I forwarded to the Tribunal requesting at least an adjournment in order that we could obtain legal advice as to quite clearly some of the allegations in the letter dated 10 March which would see civil action taken against Mr Franks or at least the inference of civil action being taken against Mr Franks.

Chairman: I think it's too late for that isn't it? They're not indictable matters that are in dispute, and there's a six months limitation so there's no jeopardy involved there, it's too late. Well what have you got to tell me though as to why some legal advice hasn't been sought already, I mean this has been a long time coming here, it started in December 1993, the case was especially fixed for today and tomorrow. That was done with the concurrence of the appellant's

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 5

representation and as I understand it all of these papers, the total particulars relied upon by the RTA were served more than a week ago."

The "total particulars relied upon by the RTA" were the outline earlier mentioned and a bundle of documents which included transcripts of the interview by Mr Schumacher on 17 December 1993, the interview by Mr Fraser on | July 1994, and the reports and other papers produced in the course of the interviews. There was no response to the Chairman's enquiry as to why legal advice had not already been sought.

Submissions were then made by the RTA (which was represented by Mr AM Colefax, barrister). They included that on 2 March 1995 Mr Lawler had been told that "the allegations concerning the driver's licence" would be raised in the appeal, which did not seem to be in dispute, that Mr Franks could not relevantly be taken by surprise, and that the RTA would be prejudiced by an adjournment in a manner which was described.

The Tribunal retired, and then the Chairman ruled -

"The Tribunal has considered the application put by Mr Lawler on behalf of the appellant. The Tribunal considers that it is without merit and refuses it. And just shortly the reasons for that decision are that we are not satisfied at all that there is some material now before the Tribunal for consideration that would have taken the appellant by surprise. He had according to the evidence available to us known about these matters for a long time. And as I said earlier this matter was mentioned and especially set down for these two days. Consequent upon that arrangement the Authority has arranged for witnesses to be in attendance including several from the country. The other matter I would say about it is that it seems to us that what has been described as the second group of matters of which the appellant complains he doesn't have sufficient notice about, essentially arise out of information which he himself gave in the course of the disciplinary interview's that took place. Yes, so for those reasons as I say the application is refused and the matter is to proceed."

To return to the second and third grounds of appeal, the refinement was that they should be read as contending that -

(i) the Tribunal erred in law in that it had no power to take cognisance of what were described as the additional matters (to which whether or not the additional matters were criminal in nature and any legitimate or other expectation that the only matters that would be reviewed were the matters relied upon in the RTA's decision of 8 December 1994 was irrelevant); and

(ii) the Tribunal erred in law in refusing Mr Franks' application for an adjournment by reason of the additional matters (to which whether or not the additional matters were criminal in nature and a legitimate or other expectation that the only matters that would be reviewed were the matters relied upon in the decision of 8 December 1994 were said to be relevant).

Mr Franks submitted in this Court that the additional matters were demonstrated by a tabulation such as - Mr Franks submitted in this Court that the additional matters were demonstrated by a tabulation such as -

1. Fraudulently issue licence -
2. Grant of cleaning contract -
3. Produce false licence when stopped for speeding
4. Conspire to defame -

As for 17 December 1993 As for 17 December 1993 As for 17 December 1993

6 UNREPORTED JUDGMENTS 5. Lack of candour Lack of candour re re events when _ fraudulent issue of stopped for licence, grant of cleaning speeding contract and production of false licence when stopped for speeding 6. Poor management practices 6a. re maintaining As for 8 December 1994 cleaning tender file 6b. re cleaning As for 8 December 1994 tender form at residence 6c. re extension of | As for 8 December 1994 cleaning contract 6d. re unauthorised As for 8 December 1994 entry for cleaning

There were variations in details which the tabulation does not reflect, but Mr Franks' submission accepted, in my view correctly, the substantial equivalence which I have denoted by "As for... ". The additional matters were said to be matters 1, 2 and 3 in the tabulation.

The RTA submitted that there were in truth no additional matters. The letter of 8 December 1994 referred as one of the bases for the decision there stated to "Lack of candour in responses to various questions put during the investigation concerning the events of 23 April 1991...". This necessarily involved an adverse finding against Mr Franks as to matters 1, 2 and 3 in the tabulation, because lack of candour to Mr Schumacher connoted that the events when Mr Franks was stopped for speeding, which included production of the false licence, were gone into and what Mr Franks had to say about them was unacceptable. By extension, what Mr Franks had to say about the issue of the licence and the other instance of mis-use of the identity Gregg Phillips was also found to be unacceptable. The RTA's submission was supported by reference to the evidence of Mr Fraser before the Tribunal. In the course of cross-examination Mr Fraser was asked to compare the letter of 8 December 1994 and the RTA's outline and agree that there were matters in the outline additional to those in the letter. The evidence continued -

"WITNESS: It seems to me, with respect, that they are the same matters. There are issues A, B, C relate to the original allegations. issues D, E, F, G and H well H also relates to the original allegations, in my opinion and issues, D, E, F and G relate to the reasons for my decisions enumerated in my letter of 12 December. The evidence or the background for those reasons came from the evidence of Mr Franks put to me as part of this investigation.

CHAIRMAN: Yes, go on Mr Lawler, you can pursue this matter if you want to.

LAWLER: Q. Mr Fraser I would suggest that in effect a lack of candour in response to various questions put during the investigation on 23 April by a police officer on Yass Road, Queanbeyan is far different to A and B if you read what is put in A and B. A says that Mr Franks is alleged to have improperly completed

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 7

an application, lack of candour, without getting into the distinct English dictionary terminology would not, I would suggest, cover that sort of comment. And --

CHAIRMAN: One question at a time. What's being put is that relied upon by the RTA in these proceedings is as one of the matters alleged, the improper completion of an application for a driver's licence.

CHAIRMAN: Mr Lawler's putting to you that in the reasons you set forth for deciding upon demotion you don't appear to have included that matter as one of your reasons. Would you agree with that?

WITNESS: No, it was certainly in my mind on the evidence that was put to me in relation to the original allegations, it was quite clear to me on the evidence that was put to me of the events of 23 April '91, that Mr Franks had been less than truthful or, to be blunt, had lied about the events of that day on the evidence that was put to me. The reference in relation to the lack of candour relates to my assessment of, in my decision it relates to that particular set of circumstances as I saw it.

CHAIRMAN: With respect, could you just concentrate please on what I'm saying to you. The allegation here is that on or about 29 September, 1989, the appellant improperly completed an application for licence. Caused a driver's licence to be issued in the name of Greg Andrew Phillips. Was that a matter that you found established against him and relied upon for the decision of demotion or not?

WITNESS: Oh, I see. In my view on the balance of probabilities on the evidence available to me I felt that that was a correct allegation.

CHAIRMAN: You've said that several times, we understand that. It's not a question of inconsistency between the two letters that you wrote, I see a consistency there, but the document outline of the respondent's case here refers to matters A, B and C which it appears to me are different matters, additional matters beyond those that you said in your correspondence, you relied upon for the demotion. Now put bluntly if you were satisfied that a manager of a Registry improperly completed a driver's licence application and issued a false licence to himself you'd sack him, wouldn't you?

WITNESS: On the evidence, on the original four allegations that were put to me from the audit report it was quite clear to me that in one instance, the instance of 23 April, '91, that Mr Franks had lied and on that basis I made the statement about lack of candour. On some of the other material he put to me it suggested that there was a possibility of some person in Western Australia. And in weighing all the evidence up that was in front of me and being conscious of procedural fairness I came to the view that he should be demoted and should be removed from the environment that he's in and be placed in an environment where he would be under close supervision and in a different line of business.

CHAIRMAN: All right. So that we can be clear about it. Does what you' ve just said mean, that although you had your suspicions you weren't satisfied to the necessary standard that he in fact improperly completed an application for the licence? You didn't find him guilty of that, put another way?

WITNESS: I found on the balance of probability that it was highly likely.

CHAIRMAN: Well, what does that mean? Was he guilty of it or not in your mind?

WITNESS: In my mind I felt it was highly likely that he did, that allegation was sustained.

CHAIRMAN: Well I come back. Why isn't it in your letter then? Where you set out your reasons for demoting him?

WITNESS: Q Because I took the view that I had spelt out in the previous, without going into a chapter and verse, I did not do it in the format of each allegation. I think that's what you're suggesting that I should have written --

CHAIRMAN: No, I'm not suggesting what you should have done, I just want to know why you did what you did. Looking then at B and C also in this outline at the front, just taking B firstly improper production of a licence. What was your conclusion about that?

WITNESS: Well my conclusion that he definitely lied about the events of that day, so I found that, that allegation's sustained.

CHAIRMAN: And what about C, this is the engagement to undertake contract cleaning?

CHAIRMAN: So are we to understand that although they weren't set out in so many words in the items of your correspondence, you were satisfied that all of those things had been established to your satisfaction?

T have difficulty in accepting the RTA's submission. That Mr Fraser may have been satisfied that all matters had been established would not mean that they were encompassed by the reference to lack of candour, nor would his opinion (if he held it, which does not emerge clearly from his evidence) that he had sufficiently included them as grounds for the RTA's decision by the reference to lack of candour. The Chairman of the Tribunal seemed to think that matter 1 was not encompassed by the reference to lack of candour ("Why isn't it in your letter then?"), and for my part while matter 3 could well be picked up by the ground of lack of candour, matter 1 is doubtful and matter 2 is not so picked up. I prefer to dispose of the appeal on the basis that the RTA relied before the Tribunal on matters additional to the grounds stated in the letter of 8 December 1994, I will assume all of matters 1, 2 and 3 earlier identified.

The Act provides that the Tribunal "shall have and may exercise the functions conferred upon it by or under this or any other Act (s6(1))". The functions conferred upon it by or under the Act are concerned with promotions appeals and disciplinary appeals. As to promotions appeals, pursuant to s20 an employee may appeal against a decision of an employer to appoint or recommend the appointment of another employee to fill a vacant office on the ground that the appellant is, having regard to enumerated matters, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made. As to disciplinary appeals, pursuant to s24(1), an employee may appeal to the Tribunal against a decision of his employer of a kind referred to in s23(1), namely a decision or a decision to make a recommendation -

"(a) to defer, for a period in excess of 6 months, the payment of an increment to the employee;

(b) to reduce the rank, classification, position, grade or pay of the employee;

(c) to impose a fine or forfeit pay in respect of any offence of which the employee is held to be guilty;

(d) to annul the appointment of an employee appointed on probation;

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 9

(e) to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer;

(g) to direct or to require the employee to resign. "

An appeal is made by lodging with the Registrar of the Tribunal a notice of appeal in the approved form (s28). Issues of law or procedure arising may be dealt with prior to, or without proceeding to, a hearing of the appeal (s31(1)), and subject thereto a time, date and place for the hearing of the appeal will be appointed (s31(1C)) with notice to the appellant, the employer, and the appropriate association of employees (s32(1)).

A sitting of the Tribunal for the purpose of hearing an appeal may be formal or informal (s34). Unless otherwise determined, a sitting for the purpose of hearing an appeal under s20 (a promotions appeal) shall be informal (s35(1)), but a sitting for the purpose of hearing an appeal under s24 (a disciplinary appeal) shall be formal (s36). Where the sittings is formal, evidence in the proceedings before the Tribunal shall be given on oath and be subject to cross-examination (s38(1)), and the persons entitled to be present may call and examine any witness (s38(5)). Otherwise the procedure for the conduct of business at any sitting of the Tribunal is, subject to the Act and Regulations, as determined by the Senior Chairperson (s39), but s42, s43 and s44 provide -

"42. (1) At the hearing of an appeal by the Tribunal, the employer's case shall be presented first.

(2) Nothing in subs(1) removes from an appellant or any other person the onus of proving any ground on which he relies.

43. (1) The Tribunal is not bound by the rules or practice as to evidence and may, subject to subs(2), inform itself on any matter in such manner as it thinks fit.

(2) The Tribunal shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Tribunal if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting.

(3) Nothing in subs(2) prevents the Tribunal from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice.

44. (1) In relation to an appeal, the Senior Chairperson or a Chairperson, by instrument in writing:

(a) may require a person, being an employer or any person entitled, pursuant to s37(2) or s38(2), to be present at a sitting of the Tribunal for the purpose of hearing the appeal, to produce, on or before such date as is specified in the instrument, for the inspection of any other such person so specified, any document or exhibit relevant to the appeal and which is so specified;

(b) may require a person referred to in para(a) to do either or both of the following things, namely:

(i) to lodge with the Tribunal, on or before such date as is specified in the instrument, a written case setting out the arguments on which the person relies in relation to the appeal;

(ii) to serve, on or before such date as is specified in the instrument, on any other such person so specified, a copy of a written case referred to in subpara(i);

(c) may require the persons referred to in para(a) to lodge with the Tribunal, on or before such date as is specified in the instrument, a statement of such facts or matters as are agreed upon between them in relation to the appeal;

(d) may require any person to appeal before the Tribunal and to give evidence; and

(e) may require any person to produce before the Tribunal any document or exhibit relevant to the appeal.

(2) A person who fails or neglects to comply with a requirement made of him under subs(1) is guilty of an offence against this Act and liable on conviction before a court of petty sessions constituted by a stipendiary magistrate sitting alone to a penalty not exceeding 5 penalty units."

S48 of the Act then deals with decisions with respect to appeals -

"48. (1) The Tribunal, in relation to an appeal under s20 may decide to allow or disallow the appeal.

(2) The Tribunal, in relation to an appeal under s24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.

(3) The decision of the Tribunal in respect of an appeal shall, except as provided by Pt5, be final and shall be given effect to by the employer against whose decision the appeal was brought.

(4) The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision."

Mr Franks' argument on the refined ground of appeal went as follows. An appeal pursuant to s24(1) was, in the words of that provision, "against a decision of [the] employer', in the present case being a decision of the RTA of the kind referred to in s23(1)(b), to reduce the rank, classification, position, grade or pay of Mr Franks. The decision was confined by and to the matters on which, in the letter of 8 December 1994, Mr Fraser said his decision was based. An appeal against the decision was similarly confined, and all the Tribunal could do was decide whether the decision was right or wrong on the materials to which the employer paid regard. Although the Tribunal acted upon material freshly placed before it by the presentation first of the employer's case and then any case for the appellant (s42), perhaps with formality (s38(1)) but not being bound by the rules of evidence (s43(1)), so that there was to that extent a re-hearing, the re-hearing could only be in relation to the matters on which the decision under appeal was based: anything else would be outside an appeal against the decision.

The nature of a statutory appeal against an administrative decision, whether to an administrative body or a court, ultimately depends on the terms of the statute: Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 622; Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234 at 249-251; re Coldham, ex parte Brideson (No 2) (1990) 170 CLR 267 at 273-4; Maritime Services Board v Murray (1993) 52 IR 455 at 463. Uninstructed by decided cases, in my view the terms of the Act make it plain that in disciplinary appeals the Tribunal is entitled to decide the appeal by regard to matters other than those on which the employer has based its decision. An appeal is against the decision of the employer, and what is in issue is whether the decision should be struck down (appeal allowed) or upheld (appeal disallowed) or replaced by a different decision (such other decision with respect to the appeal as the Tribunal thinks fit) (see s48(2)). It is the decision that must be addressed, and the decision is distinct from the grounds for the decision. The Tribunal can, indeed must, act upon material freshly placed before it, with the employer bearing the initial burden, and may require the lodging and service of written cases by the parties to the appeal. The fresh approach and the provision

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 11

for such other decision with respect to the appeal as the Tribunal thinks fit point strongly to an appeal in which the employer is not confined to the grounds on which it based its original decision.

There is common sense in this. Mr Franks' submission included that the employer could abandon a matter grounding its original decision but could not add a matter: why should it be able to abandon a matter if, as the submission required, all the Tribunal can do is decide whether the decision was right or wrong on the materials to which the employer paid regard? It may be in the interests of the employee, in a disciplinary dispute of more than pecuniary significance, that the decision be amply reviewed, and it would not be conducive to an effective disciplinary system that appeals be artificially restricted to reagitation of matters which no longer embodied the dispute. That is why in disciplinary appeals the Tribunal is empowered to make such other decision with respect to the appeal as it thinks fit.

Cases on the Act are consistent with, and provide some support for, this view.

In Strange-Muir v Corrective Services Commission of New South Wales, a promotions appeal, McHugh JA said (at 250-1) that there was "a presumptive tule that in an administrative appeal to an administrative body the issue was whether the decision was correct when it was made" and that the terms of the Act, particularly s20, s21 and s48(3), confirmed that the rights of the parties on appeal were to be determined on the materials which existed at the date of the employer's decision. At first sight this is contrary to the view I have expressed, but for two reasons I do not think it really is. First, his Honour did not mean that the Tribunal could consider only the matters in fact before the original decision-maker: he accepted that under the same presumptive rule an appellate administrative tribunal could hear additional evidence. The question in Strange-Muir v Corrective Services Commission of New South Wales was whether the withdrawal of the recommended employee from contention after the date of the employer's decision deprived the Tribunal of jurisdiction, and his Honour's point was that the issue on the appeal, whether the appellant was more entitled to be appointed to the vacant office than the recommended employee, was crystallised as at the date of the employer's decision so that the subsequent event did not deprive the Tribunal of jurisdiction. It is quite consistent with Strange-Muir v Corrective Services Commission of New South Wales that the issue on the appeal should be decided by regard to matters existing at the time of the original decision but not part of the basis for the decision. Secondly, in re Coldham, ex parte Brideson (No 2), after citing what McHugh JA had said about the presumptive rule, the Court repeated that the nature of the appeal ultimately turned on the terms of the statute, and held that the terms of s88F(3) of the Conciliation and Arbitration Act 1904 (C'w) - "take further evidence" - and of s88F(4) of that act - "make such order as it thinks fit" - and the nature of many issues on appeal pointed irresistibly to the conclusion that the Australian Industrial Relations Commission was required to decide appeals on the facts and law which existed at the date of its decision. The same indications are to be found in the Act in relation to disciplinary appeals. Whatever the position as to promotions appeals, for which the Tribunal is not empowered to make such other decision with respect to the appeal as it thinks fit, so far as McHugh JA may have held that the Tribunal could not pay regard to matters other than those before the original decision-maker the authority of the High Court points to a different conclusion for disciplinary appeals.

In Strange-Muir v Corrective Services Commission of New South Wales Priestley JA reached the same conclusion as McHugh JA upon the construction of the Act, although resting his opinion (at 246) "upon a reading of the words of [s20] in the context of the Act as a whole". Kirby P dissented in the result, again on the construction of the Act and with regard to the better operation of the public service and the purposes and structure of the legislation. Nothing in their Honours' judgments calls for a different opinion of the significance of Strange-Muir v Corrective Services Commission of New South Wales to the present case.

In Smith v Allen (1993) 21 NSWLR 52 it was held that in a disciplinary appeal the Tribunal had jurisdiction to review the lawfulness of the original decision. Part of the reasoning to that conclusion was that the Tribunal had been given a wider power in respect of disciplinary appeals than in respect of promotion appeals, being entitled under s48(2) to "make such other decision with respect to the appeal as it thinks fit". Kirby P, with whom Clarke JA and Samuels AJA agreed, observed (at 61) that it was probably enough for the jurisdiction that the Tribunal had the power to allow an appeal, and saw the additional power in s48(2) as putting it beyond doubt. His Honour added that the words of s48(2) were more than sufficient to allow the Tribunal to make other decisions which provided for, for example, the deployment of the employee pending the making of a lawful decision by the primary decision-maker and any appeal which may then be brought against that decision, and said (at 63) that to the extent that there was uncertainty and ambiguity in the jurisdiction of the Tribunal, it was a well-established principle of statutory construction that the view of the jurisdiction of the Tribunal would be preferred which permitted it to perform fully the functions which were appropriate to its purpose and that the appeal right which was afforded to employees should, in the case of ambiguity, not be narrowly confined. This does not directly assist on the present question, but neither review of the lawfulness of the original decision nor amplitude of the additional power in s48(2) can readily stand with an appeal being confined in the manner suggested by Mr Franks.

In Clisdell v Commissioner of Police (1993) 31 NSWLR 555 the employee had appealed against decisions refusing to classify four periods of absence from duty as "hurt on duty". The Tribunal disallowed each appeal. In its reasons for its decisions it added a recommendation that the employee and another employee be transferred to separate work locations at centres remote from that at which they had been serving, it would seem because it was thought that the periods of absence from duty were due to the stress of an emotional relationship between them. The employee who had appealed sought an order that the recommendation be quashed and a declaration that the Tribunal acted beyond its powers in making the recommendation. Apparently treating the recommendation as a decision, the Court ordered that it be set aside and declared that the recommendation was void and of no effect. Sheller JA, with whom Handley and Cripps JJA agreed, said (at 560) that he had difficulty in seeing upon what basis a tribunal concerned to consider the appeals about leave entitlements could consider itself to have the power to make the recommendation, and continued (at 560-1) -

"A function of the Tribunal under s48(2) was to decide to allow or disallow the appeals or make such other decision with respect to the appeals as it thought fit. Subs(3) provided that the decision of the Tribunal in respect of an appeal should, except as provided by Pt5, that is to say the part concerned with appeals from the Tribunal, be final and be given effect to by the employee against whose decision

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 13

the appeal was brought. The Tribunal was not confined simply to allowing or disallowing the appeal but any further decision it made had to be 'with respect to the appeal', that is to say, in the present case incidental to the matter before it, namely whether the respondent rightly refused leave of absence on full pay to Constable Clisdell. It is unnecessary in the present case and undesirable to define further what 'such other decision with respect to the appeal' may in a particular case mean. For present purposes it is sufficient to say that it does not enable the Tribunal to make a decision, including a decision to make a formal recommendation, with respect to a matter not raised by the appeal, in this case whether or not Constable Clisdell should be transferred from Nowra."

The result is unsurprising: there was just no relationship between an appeal upon the employer's decision to refuse leave of absence on full pay and whether the employee should be transferred to another work location (let alone between what was before the Tribunal and transfer of the other employee who was not touched by the original decision and not a party to the appeal). In the present case there was an appeal upon the RTA's decision to demote Mr Franks, and there was a relationship between that and a decision whether Mr Franks should be dismissed rather than demoted. Clisdell vy Commissioner of Police gives no comfort to Mr Franks' submission.

In Maritime Services Board v Murray the employee appealed from a decision that he be dismissed for misconduct in purchasing a mobile telephone in his employer's name in order to avoid the payment of sales tax. In ordering that he should be re-instated the Tribunal referred to the facts that he had subsequently paid the sales tax, and had suffered loss of salary from the date of his dismissal (which it described as "sufficient punishment for any misconduct on his part"). On appeal to the Court the employer argued that the Tribunal had erred in taking into consideration extraneous material, namely the payment of the sales tax and the loss of salary.

Kirby P, with whom Sheller JA agreed, referred to the words in s48(2) of the Act whereby the Tribunal had, in addition to the power to allow or disallow the appeal, the power to "make such other decision with respect to the appeal as it thinks fit". Repeating what had been said in Smith v Allen, his Honour said that the words "with respect to" were words of the widest connection and were wide enough to sustain an order that a dismissed employee be reinstated. His Honour continued (at 464) -

"That this is so is confirmed by provisions of s23(1)(f) of the Act. That paragraph makes it clear that disciplinary appeals were to include appeal against a decision to dismiss an employee. A simple order allowing the appeal would leave the employee dismissed. It is doubtless for that reason that, in disciplinary appeals, the Tribunal was given a wider mandate and provided with larger powers. Those powers could not easily be exercised without regard to events which had occurred since the dismissal. Therefore, to the extent that the Tribunal referred to those events, in determining how it would make its 'other decision', it committed no error. Clearly, as a matter of principle if there be any ambiguity in the Act, the Tribunal should be entitled to take into account supervening facts. Thus, if the employee were to have suffered a supervening injury or had been convicted of some disqualifying offence, it,would be ridiculous to require the Tribunal, in making its 'other decision', to ignore events that had occurred since the employer's decision. Thus, the, wider powers conferred on the Tribunal in disciplinary cases enliven a consideration of events beyond those which were available to the employer at the time the decision was made. Those events may

be apt for a decision confined to allowing or disallowing the appeal. The wider powers in disciplinary cases distinguish this case from Strange-Muir. They authorise the consideration given by the Tribunal to the events following dismissal, including the respondent's payment of the outstanding sales tax and the loss of salary which he would suffer by the order proposed with respect to the appeal." [emphasis added]

From the emphasised words in particular, it would be open to the Tribunal in the present case to take cognisance of the additional matters, and to allow or disallow the appeal or decide upon dismissal in lieu of demotion. This is not affected by his Honour's later observations (at 464-5) -

"It was appropriate in determining the order that should be made that the Tribunal should have been satisfied that the respondent had acknowledged his error and had paid the outstanding tax. The appellant's complaint was that this passage appeared not at the point at which the Tribunal was considering its order but during its reasoning upon whether it would allow or dismiss the appeal. There is some merit in this point. However, I would not be inclined to disturb the Tribunal's decision simply because it recited, out of order, a consideration which was clearly relevant to the final determination, although not strictly relevant to the allowance or dismissal of the appeal. It would be prudent, in the future, if the Tribunal were to observe this distinction in disciplinary appeals. "

Although it may be that the task should be approached in two stages (possibly that is why in the present case, in addition to ordering that Mr Franks be dismissed, the Tribunal said that "the orders of demotion and transfer the subject of the appeal are

otherwise confirmed"), regard to the additional matters for the "final determination" that Mr Franks be dismissed is not erroneous.

Handley JA agreed with the judgment of Kirby P, but in his additional remarks said (at 468) -

"The Board submitted that in a disciplinary appeal the Tribunal could not receive or act on evidence of events subsequent to the dismissal. Under the general law an employer can rely on misconduct unknown to it at the time to justify summary dismissal effected on other grounds which it is unable to support. See Shepherd v Felt & Textiles Ltd (1931) 45 CLR 359. I see no reason why the same principles should not apply in appeals to the tribunal. If so there can be no justification for limiting the materials that can be considered by the tribunal in a dismissal case to those that were before the employer at the time of the decision to dismiss. The payment of the tax by Mr Murray, which occurred after the decision to dismiss, was capable, if so viewed by the Tribunal, of throwing light on his state of mind at the time of the purchase. It could also be relevant to the fairness of the dismissal, and the ultimate fitness of Mr Murray to be reinstated to his former position."

His Honour's view, applied to the present case, would amply entitle the RTA to rely before the Tribunal on, and the Tribunal to take cognisance of, matters in existence as at the time of the RTA's decision although not the basis of that decision. It would also authorise regard to the additional matters for the purposes of the Tribunal's decision that Mr Franks be dismissed.

In my opinion the Tribunal did not make the error of law suggested in refined ground of appeal (i).

URJ FRANKS v ROADS & TRAFFIC AUTHORITY (Giles AJA) 15

S46(1) of the Act provides that the Tribunal may from time to time adjourn the hearing of an appeal to such times, dates and places, and for such reasons, as it thinks fit. The refusal of Mr Franks' application for an adjournment was an exercise of discretion. In accordance with well-established principles, for which House v The King (1936) 55 CLR 499 at 505 is sufficient authority, the Tribunal should not be held to have erred unless it acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, or did not take into account some material consideration; if it does not appear how it reached its result, but upon the facts the result was unreasonable or plainly unjust failure to properly exercise the discretion may be inferred.

It was open to the Tribunal to conclude, as it did, that Mr Franks was not relevantly taken by surprise, particularly when the two interviews of which Mr Franks was well aware and of which he had transcripts underpinned the RTA's case, and to have regard to arrangements for the hearing. Indeed, Mr Franks did not suggest error in those respects. His submission was that the Tribunal wrongly proceeded on the basis that "the additional criminal allegations" (by which it seems he meant matters 1, 2 and 3 earlier identified) were not indictable. Reference was made to Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 at 726, but what was there said was not in point: the question was whether the Tribunal's exercise of discretion was vitiated within the principles in House v The King. I do not think it was.

Some possible indictable offences in connection with matters 1, 2 and 3 were suggested in this Court, without any attempt to relate the facts to the ingredients of the offences; when Mr Franks applied for the adjournment of the hearing before the Tribunal, even less was done. After the Chairman's comment upon indictable matters Mr Lawler did not go further. In the circumstances as presented to the Tribunal, it was not for it to exercise its discretion on the basis that Mr Franks was in jeopardy such as to necessitate an adjournment prior to commencing the hearing. If there arose a particular exposure to incrimination during the course of the hearing, for example if it was thought that Mr Franks should not go into evidence or if cross-examination took him where it was thought he should not go, application could then be made for an adjournment, for disallowance of the question, or for some other order to meet the situation. In the event, no such application was made. Appealable error in the exercise of discretion has not been shown.

"The Tribunal erred in law by misconstruing its powers pursuant to s48(2) of the GREAT Act and substituting in lieu of the employer's decision to demote and transfer the subject of the appeal its own order of dismissal".

This ground of appeal was linked with refined ground of appeal (i). Mr Franks' argument was that, just as the appeal against the RTA's decision was confined by and to the matters on which, in the letter of 8 December 1994, Mr Fraser said his decision was based, so also when it came to the Tribunal's decision the appeal was confined by and to whether Mr Franks should be demoted and transferred. The Tribunal could allow or disallow the appeal, but could not substitute another result, because deciding on another result was not a decision "with respect to" the appeal within s48(2) of the Act.

In a promotions appeal there will generally be only two appropriate results: the appealing employee should be preferred over the recommended employee, or he should not. In a disciplinary appeal there will be a range of appropriate results: s23(2) itself sets out alternatives, and within most of them there will again be a range. Again, an effective disciplinary system calls for power in the appellate tribunal to arrive at a proper disciplinary outcome, not artificially restricted to striking down or upholding the original decision but able to make its own decision within the alternatives and the range. S48(2) gives the Tribunal that power, which is absent in the case of promotions appeals. Without repeating the discussion of the cases, while Smith v Allen, Clisdell vy Commissioner of Police and Maritime Services Board v Murray do not directly answer the present question the passages earlier set out tend against

Mr Franks' submission, and the result in Maritime Services Board v Murray could not stand with that submission. In my opinion the Tribunal had power pursuant to s48(2) to decide that Mr Franks should be dismissed, and did not err in law in so deciding.

None of the grounds of appeal should be upheld. I propose orders that the appeal be dismissed with costs.

None of the grounds of the appeal are upheld. The appeal is dismissed with costs.

Counsel for the appellant: Ms D Bentley Solicitors for the appellant: Messrs Andrew Fegent and Co Counsel for the respondent: Mr A M Colefax