Hercules, Garry Robert v Brennan, Desmond Patrick & Ors [1982] FCA 244

which reasons contained reference to allegations prejudicial to the applicant - in all the circumstances, no fair-minded person could reasonably suspect that the Applicant did not receive a fair hearing.

ADMINISTRATIVE LAW - Judicial Review of Administrative Decisions - review of decision of Telecom

Disciplinary Appeal Board in relation to disciplinary

charges - breach of natural justice - counsel for Applicant not afforded an opportunity to address

the Tribunal with respect to penalty - Tribunal reconsidering decision with respect to penalty after address by Applicant's counsel - mm breach of natural justice.

Administrative Decisions (Judicial Review) Act, 1977

GARRY ROBERT HERCULES v. DESMOND PATRICK BRENNAN, RICHARD JOSEPH DOLMAN WISE and PHILLIP WILLIAM STATHAM

QUEENSLAND DISTRICT REGISTRY ) No. G106 of 1982 GENERAL DIVISION ) BETWEEN:

Applicant AND: DESMOND PATRICK BRENNAN, RICHARD JOSEPH DOLMAN WISE and PHILLIP WILLIAM STATHAM Respondents ORDER JUDGE MAKING ORDER: FITZGERALD J. DATE OF ORDER: 8 NOVEMBER 1982 WHERE MADE: BRISBANE

QUEENSLAND DISTRICT REGISTRY ) No. G106 of 1982 GENERAL DIVISION ) BETWEEN:

Applicant AND: DESMOND PATRICK BRENNAN, RICHARD JOSEPH DOLMAN WISE and PHILLIP WILLIAM STATHAM Respondents FITZGERALD J. 8 NOVEMBER 1982

This 1s the sequel to Hercules v. Jacobs and Others, in which I delivered judgment on

"1. The decisions of a Disciplinary Appeal Board under the Telecommunications Act, 1975 in respect of the charges (a), (b) and (c) against the applicant as set out in the amended application be and are quashed;

2. the Australian Telecommunications Commission arrange pursuant to s.63(1)

of the Telecommunications Act, 1975 for the establishment of a Disciplinary Appeal Board constituted by a different Chairman and different members to hear and determine

3. the Australian Telecommunications Commission pay the applicant's taxed costs of and incidental to these proceedings including reserved costs, if any;

Further, I noted that regulation 27 of the Telecommunications Regulations seemed wide enough to permit the reconstituted Disciplinary Appeal Board to recommend to the

Australian Telecommunications Commission that it pay the applicant's costs of the original proceedings. The charges (a), (b) and (c) referred to in the first order were as

"(a) That the Applicant between the first day of December 1980 and the twelfth day of February 1981 was guilty of improper conduct as an officer in that he endeavoured to solicit the sum of $50.00 from RUSSELL KRAUTZ of Flat 1, 16

Bay Street, Pallarenda, Townsville, the subscriber to Telephone Service Townsville 74.1468 as payment for reducing by $120.00 the amount due on his telephone account.

(b) That the Applicant between the first day of December, 1980 and the twelfth day of February, 1981 was guilty of improper conduct as an officer 1n that he improperly reduced by $120.00 the telephone account of RUSSELL KRAUTZ of Flat 1, 16 Bay Street, Pallarenda, Townsville, the subscriber to Telephone Service Townsville 74.1468.

(c) That the Applicant between the twentysecond day of December, 1980 and the twelfth day of February, 1981 was

• guilty of improper conduct as an officer in that he sold the economy airline ticket issued to him under Staff By-Law 92 for the journey from Townsville to Brisbane and return to GARTH COOPER.

(1) That the airline ticket was sold contrary to Finance Accounting Instructions

which appear on the Main Commission file at Folio 60.

(ii) That the airline ticket was sold contrary to verbal instruction given

to the Applicant by an immediate superior officer, RICHARD STEPHEN ZEITHSCH.

to the Applicant by PHYLLIS ENTRIKEN." A new Disciplinary Appeal Board, constituted in accordance with the Order of 21 July 1982, sat on 7, 8 and 9 September 1982. GROUND 2

A question arose in relation to charge (c) almost immediately. The Board ruled that the Commission was confined to the charge as particularised and amended, the Commission indicated that it would not be leading evidence in relation to that charge which would not be proceeding, and the Board accordingly upheld the appeal in relation to that charge. Ground 2 of the present Application, which seeks a further review of decisions adverse to the applicant, Mr Hercules, in relation to charges (a) and (b), is that he did not receive a fair hearing before the Board because the Commission allowed charge (c) "to remain before the Board, which charge the Commission was never in a position to prove at the re~hearing, and which action tended to prejudice or embarrass the Applicant in

I reject entirely that contention which seems to me fantastic. The Order made by the Court in relation to charge (c) on the previous occasion was made at the applicant's request. That charge had been before a Disciplinary Appeal Board in the first instance because of his appeal from a punishment imposed upon him by the Australian Telecommunications Commission in relation to that charge. When he was dissatisfied with the outcome of the initial proceedings before that Disciplinary Appeal Board, he asked to have the charge dealt with by a differently constituted Disciplinary Appeal Board. He was given the order which he requested. When it came before the second Disciplinary Appeal Board, he obtained in relation to charge (c) precisely what he asked, namely an acquittal. Further, he did so on the admission of the Commission that it was without evidence to sustain the charge as particularised. The proposition that what occurred in relation to charge (c) somehow affected the proceedings

in relation to charges (a) and (b) is simply not arguable.

The other grounds upon which the applicant seeks to have the decision of the second Disciplinary Appeal Board that he is guilty of charges (a) and (b) and should be quashed and a still further Disciplinary Appeal Board constituted to hear and determine his appeal in respect of those charges, or if I am against the applicant on the first and second grounds, in

respect of the appropriate penalty, are as follows:

hearing before the Board as it was evident that, prior to the hearing,

of the Federal Court delivered on the Twenty first day of July 1982, which Judgment contained material prejudicial to the Applicant's case, and in particular the following uncontroverted allegations:-

(a) That the Applicant was convicted in March 1977 in the Melbourne Magistrates Court for breach of the Lotteries and Gaming Act (Victoria);

(b) That the Applicant had in July 1980 repaid $209.00 being for air fares Brisbane/Townsville availed of by a person not being an employee of Telecom;

(c) That the Applicant had informed Mr Hitchins, the investigating officer, that he gambled on horses.

before the Board because the Board, after it had made a finding of guilt, did not then invite the Applicant to address it on penalty before 1t decided upon a penalty."

ground 2, to which reference has already been made.

and (c) which are set out in ground 1 of the present

"The final form of the grounds upon which the order to review is sought are as follows:

(a) the Applicant did not receive a fair hearing before the Board because the following evidence was before it:-

(i) That the Applicant was convicted in March, 1977 in the Melbourne Magistrates Court for breach of the Lotteries

and Gaming Act (Victoria); (il) that the Applicant had

he gambled on horses;" Apart from the misnomer in respect of the investigating officer, paragraphs (i), (ii) and (i1i) of the previous ground 1(a) precisely correspond with paragraphs (a), (b) and (c) of the current ground 1. It is convenient, even if not entirely accurate, to relate my previous decision to the information which was availed to the

then Disciplinary Appeal Board in relation to those

if any, reference." I went on to note that, nonetheless, the hearing went on over the applicant's objection and that the applicant's principal submission before me was that the Board should not have continued with the hearing in view of the information which had been furnished to it. It had, as I also noted, been requested not to do so by Counsel who was then appearing for the applicant, and even the solicitor who represented the Commission before that Board had suggested that one or more of the members

Although, as I said, my mind had fluctuated considerably as to the proper outcome of the previous application, I was much influenced by the importance of the applicant's credit-worthiness to the proceedings before the previous Board. "The one matter made clear by the brief reasons given by the Board for its decision is that the applicant's credibility was of vital importance

and that the evidence of other witnesses was preferred."

After referring to other difficulties which arose out of what the previous Board had said and done, which I considered whilst not decisive were background to a consideration of that Board's possession of the information which had been furnished to it and its rejection of the applicant's evidence in critical

"... a broad question which will often be sufficient, as in the present case, is whether the applicant or a fair~minded person might reasonably suspect that the applicant did not receive a fair hearing because the Board did not resolve the questions before it with

R. v. Watson; ex parte Armstrong (1976) 136 C.L.R. 248, 264. An affirmative answer to that question by no means indicates that the Board was influenced by allegations that the applicant had

had previously misconducted himself concerning an air-ticket, that it did not strive to act with exemplary fairness to the applicant, or that he was in fact prejudiced."

Except in that passage, where the subject matter of paragraphs (a), (b) and (c) of ground 1 of the present application are referred to as "allegations", a previous passage in which the applicant's conviction for breach of

referred to without a similar qualification, and paragraphs (i), (ii) and (iii) of ground i(a) of the previous application for an order to review, there 1s

no mention of any of the "uncontroverted allegations"

(a), (b) and (c) of the present ground 1 anywhere in the previous reasons for my judgment. Further, even if my previous reasons for judgment were before the present Board, the members would also have had what I said of those matters in the paragraph following

matters in question was legally admissible evidence, it ought not have been led

because it was weightless. Although the matters were individually and collectively trivial, their potential prejudicial effect considerably exceeded any possible assistance they might afford to a determination of the appellant's guilt or innocence of the present charges. That, in my opinion, is the crux of the matter for present purposes, when seen

in conjunction with the vital importance of the applicant's credibility.

Even though the proceedings before a tribunal may be characterised by informality or an absence of rules of evidence, there will frequently be more cause for concern if

no probative value are raised there than if they are raised before a superior court.

But, however that may be, it is not possible to feel comfortable in the circumstances about the proceedings before the Board in the present case. The applicant or a fair-minded member of the public could quite reasonably suspect, however inaccurate the suspicion Might be, that the applicant did not get a fair hearing. Accordingly, I am of the

Were the matter to stop there, I would reject out of hand the notion that any fair-minded person might reasonably suspect that the applicant did not

the basis that 1t did not resolve the questions before it with a fair and unprejudiced mind by reason of a perusal of my previous reasons for judgment. If, by the wildest imaginings, it might be thought that the Board might take anything said in my reasons as indicating that the matters contained in paragraphs (a), (b) and (c}) of the present ground 1 were matters of fact, they would also know that the Board had been told that such matters were "individually and collectively trivial", that evidence of them was "weightless", and that they were plainly to be ignored because "their potential prejudicial effect considerably exceeded any possible assistance they might afford to a determination of the appellant's guilt or innocence...". It is quite beyond me, at least, to perceive that a fair-minded person might, in those circumstances, suspect that the present Board was influenced in some way by those matters or the references to them in my previous

However, the matter does not stop there. Ground 1 is simply not accurate. The present Board did not have my previous reasons for judgment before it. None, except the Chairman, had ever seen them. Within minutes of the commencement of the proceedings before the present Disciplinary Appeal Board, the Chairman disclosed what Material had been placed before the Board and what

you any comment on that ...?," addressing himself to the applicant's then counsel. The only comment which was forthcoming was irrelevant for present purposes and led to the discussion in relation to the Commission's decision not to lead evidence in relation to charge (c). In the course of that discussion, Counsel then appearing for the applicant himself referred in the course of his argument to my previous reasons for decision, although they were still not before the Board; although the

Chairman had, as I have noted, previously read them,

all he had at the time was the Court's formal order.

The matter does not even stop there. Counsel for the applicant returned to the matter of my previous reasons for judgment at the commencement of the second day. He enquired as to whether only the Chairman had read those reasons or all members of the Board. It was confirmed that only the Chairman had read them. Counsel for the applicant expressly stated that he was not making any application but that he requested the Chairman "to dismiss those matters",

i.e. plainly from the Chairman's mind. The Chairman

said that the references in the reasons for judgment did not convey anything to him and went on to give an assurance which, although the transcript is incomplete, must clearly have been an assurance to the effect that he, the Chairman, would not be influenced. Counsel for the applicant said:

"With that assurance I am satisfied. I just wished to bring the point up."

There was some further discussion in which the Chairman explained the circumstances in which he

the Chairman said that he did not propose to show them to the other members of the Board. He was thanked by Counsel for the applicant and the hearing

Although I was told this morning that I should have directed some restriction to the publication of my previous reasons for decision when I delivered judgment on the last occasion, that was not suggested to me then and there is nothing to indicate that the applicant or his lawyers ever made any such request to

the Commission or its lawyers or took any steps prior

to the hearing to ensure that no member of the Board which sat had adverted to what I said. When it emerged

that the Chairman had done so, the applicant by his Counsel acquiesced in the continuation of the proceedings and, as I think, waived any possible objection about as

I have previously had occasion to mention my view that a party's own conduct and attitudes may well be relevant to the requirements of natural justice

in a particular case: see Dawes v. Gesling and Ors (Qld

G57 of 1982; Judgment delivered 23 August 1982); cf de Smith's Judicial Review of Administrative Action,

ex parte Ciccone, [1973] V.R. 133, and R. (exrel. Harrington)

I propose to say no more as to why I think this ground baseless than that the notional fair-minded bystander would have had his comfortable satisfaction that there was no occasion for disquiet confirmed by a perusal of the Board's reasons. Many matters of fact were not in issue and indeed there was little, if any, contest as to charge (b). The Board's reasons in relation to 1ts conclusions on the issue in dispute were detailed and demonstrably unconnected with the matters referred to in paragraphs (a), (b) and (c) of ground 1 of the application. There was no suggestion that the Board's reasons did not honestly reflect its

The applicant's third ground arises out of some confusion in the proceedings which have given rise to the present application. Towards the end of the second day of the hearing, the Chairman indicated to Counsel appearing for the applicant before the Board, that the members of the Board felt that at the conclusion of the evidence and addresses they ought adjourn and consider their decision and announce it, although without reasons at that stage, "even if we haven't listened to the question of penalties". He went on then to refer to the question of costs, which included the costs of the previous proceedings before the original Disciplinary Appeal Board, and asked Counsel for the applicant whether he would prefer to deal with the question of costs at the close of his address or after the decision had been announced. There was further discussion but no further reference to the question of penalties. At the conclusion of the second day's hearing, the Board adjourned on the basis that when the evidence and addresses were finished it would again adjourn "consider our findings and then ... announce our findings and then hear both you gentlemen on the question of costs". It 1s common ground that there was no reference by either Counsel

On the third day, after the conclusion of evidence and addresses, the Chairman indicated that the Board proposed to adjourn to consider its decision and then to return to hear Counsel "in relation to costs in the light of our decision". Reference was made to the proposal that after the decision was announced there would be "addresses on the question of costs of the previous hearing and the costs of this hearing". It

"Gentlemen the Board has reached the decision in this matter. The decision of the Board is ... to confirm the decision made by the Commission in relation to both Charges A and B and as already indicated to uphold the appellant's appeal in regard to Charge C dealing with the airline ticket."

Counsel for the applicant was then invited to address the Board "on the question of costs". He proceeded to do so, concluding as follows:

of costs. On the question of penalty." The Chairman then interrupted:

recorded, of course, in the reasons but if you wish to put matters. I had assumed this

morning we possibly announced our findings, our decision, then we would

deal with the question of costs. I had assumed that everybody understood me

that we would consider both the finding and the penalty. There is nothing in writing at this stage. The Board is prepared to hear you on whatever matters you wish to raise in relation to penalty."

Counsel for the applicant then proceeded to address the Board at length in relation to the question of penalty. His submissions largely related to the applicant's employment record, which it was accepted was "clear", and the applicant's employment history, the consequences to him of dismissal, that the charge was that the applicant had behaved improperly, not fraudulently, and the inappropriateness of a penalty of dismissal if the Board were of the view that the applicant had not intended to bring about a permanent loss to the Commission or benefit to himself. There is not the slightest doubt that that, at that point, the applicant was given ample opportunity to make submissions in relation to penalty, and the contrary is not suggested. The applicant, however, contends that it was then too late, not because the Board was functus oficio, but because it had already made up its mind and announced its attitude. Counsel for the Commission did not address in relation to

penalty and the proceedings concluded on the third day

have our decision ready for typing sometime in the morning."

decision, the Board dealt with the question of penalty

"On the question of penalty the Board notes that the Appellant was employed by the Commission in a position of trust with access to and responsibility for subscriber's accounts. The Commission is entitled to expect from such an employee that he will carry out his duties fairly and honestly and with

due regard for the protection of the Commission's interests. The Commission 1s also entitled to expect that its employees, in dealing with members of the public and its subscribers, will act in a proper and honourable manner.

The Appellant had abused that trust in that, for his own personal gain, he put action in train to deprive the Commission of revenue which was to become due and owing to it. He

further breached that trust in that, having taken such action, he sought to obtain a financial reward from the subscriber whose account he had improperly reduced.

The Board views these breaches ina most serious light and, in its opinion, each breach warrants dismissal from the Commission's service. Accordingly the penalty imposed by the Commission in respect of both charges (a) and (b) is confirmed."

today accepted that the law in relation to this aspect of the matter was to be found in the judgment

of Holland J. in Malone v. Marr [1981] 2 N.S.W.L.R. 894,

although counsel for the applicant also relied upon the note of the decision of the Divisional Court in

R. v. Southhampton Justices Ex parte Atherton (1974)

penalty," On that account, a sentence was set aside and the Matter was sent back to a differently constituted court for a further consideration as to sentence. It is not clear to me from the note of the report what was meant by the statement that the justices had "gone through the motions of hearing mitigation" particularly since the penalty in fact imposed was

The passages from Malone v. Marr (supra), which are of most relevance to the present proceedings appear

at pp. 900, 902 and 909 of the report and are as follows:

"J turn now to the complaint of breach of natural justice in the imposition of a penalty In my opimon, the plaintiff's case here rests entirely and exclusively upon the judgments of a majority of the Court of Appeal in Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 In that case Hutley and Samuels JJA (Mahoney JA dissenting) laid down the law in terms that appcur to me to demand that a domestic tribunal, m deahng with alleged misconduct for which it has power to penalize, always keep distinct procedurally the question of guilt and the question of penalty As I understand what ther Honours said in that case, because natural justice requires the tnbunal to pive the acc used an opportunity to be heard on penalty a3 well as guilt, this imposes upon the tnbunal, as a matter of duty on its part the obhgation, atter making a finding of guilt, then to take specifically the initiative of inviting the accused to address the tribunal on penalty and to hear any evidence or submissions that the accused might wish to direct to that question Their Honours appear further to have held that if the tnbunal, having decided that the accused 1s guilty, proceeds to consider and decide upon a penalty without having performed the above duty and taken the course laid down, the tnbunal's decision on penalty, as distinct from guilt, 13 void, however, the voidness of the penalty decision in no way affects the validity of the antecedent proceedings and decision on the question of guilt if the latter were intra vires and arrived at without infnngement of the rules of natural justice I will refer to the judgments "

"Before proceeding to consider the apphcation of the majority decision in Hall's case to the present case I should observe that 1t seems to me that two things follow from the views eapressed by their Honours which | have quoted above First, the requirements of natural justice are not satisfied by showing that when the accused appeared before the tribunal to answer the charges he knew that the tmbunal had power to impose a penalty upon him it he should be found to be guilty or that he could have addressed the tnbunal on matters going to the question of punishment at the same time as he was heard upon the charge made against him if he had chosen to do so Second, if the tnbunal, after making a finding of guilt, fails in ils duty with regard to a heamng on penalty as above deseribed and, in consequence, the decision on penalty 1s invalid, the tribunal may, if it chooses, rectify its error by re-opening the question of penalty, inviting the eccused to tender evidence and 'ar addiess on the question of penalty und thereafter re-consider and decide that question "

"Halls case did not decide that a domestic tnbunal which validly determined guilt but then, in deciding upon penalty, committed a breach of the procedural rules laid down by the majority in that case had exhausted its function A miscarniage of procedure need not necessanily be regarded as incurable by the tribunal itself The end result sought to be obtained by the application of the rules of natural justice 13 a fair tnal, not to deprive the members' chosen tribunal of any part of the responsibility or powers vested in 1t by the agreement of the members or to afford to a member found guilty of msconduct immunity from the exercise by the tribunal of its penal powers If the decision on penalty 1s continuing to be applied to the plamuff when the matter 15 belore the court, the plaintiff is obviously entitled to seck to have the court declare the decision to be invalid and enjoin the appropriate parties from acting further on the basis of that particular decision, but the tribunal's finding of guilt, being vahd, continues to stand and it may have been made in relation to conduct of a kind that the tnrbunal, subject to heamng the accused in mitigation, might consider should generally not be left to go unpunished or to deserve more punishment than the detmment already suffered by the plaintitf prior to the making of the court's orders

It 1s clearly not open to the court to entertain the question whether the plaintiff has already suffered enough That would truly usurp the powers of the appointed tribunal Also, 1n my view, it 1s not proper for the court to make any general assumption that, even if given the chance, the tribunal will not be capable of performing or will not in fact perform the duty of carrying out a full reconsideration with a re opened mind on the question of penalty so as to give the member the oppurtunity to present evidence or argument on that question that the court has said that he was not given It goes without saying that it would be open tu the committee to take into account on such re-consideration any penalty already endured Certainly, the court will not make the assumption that the plaintiff 1s in jeopardy of being made to suffer a punishment twice over

It may be possible 1n a particular case to prove facts or circumstances to show 1n advance that a further hearing limited to the question of penalty would not be capable of producing a decision that would satisfy the requirements of natural justice If such a case occurred, it might provide grounds for an imjunction to restrain any further hearing from taking place or to restrain the imposition of a penalty for the offence for which the plaintiff had been found guilty No such case was put to the court on the plaintiff's behalf in the present proceedings nor, in my opinion, does any such case appear "

Holland J. then went on to declare void the penalty which had been imposed but to further declare that the same Tribunal was not precluded from thereafter

I have read carefully what was put before the Tribunal by Counsel for the applicant in relation to penalty and doubt whether any penalty other than dismissal was conceivable in view of the Board's decision of guilt. The applicant deliberately attempted to abuse his position as an employee to the disadvantage of his employer for the purpose of dishonest personal gain. It is unnecessary for me to consider that matter further, or to decide whether it is open to the Court to dismiss an application for an order of review by reference to considerations which go to the substance of the proceedings before the

With full knowledge of the position, the applicant by his then Counsel continued to participate an the proceedings before the Board and acquiesced in the Board re-opening the question of penalty. There is nothing to andicate that the Board did not take into account every matter urged upon it in relation to

penalty or give those matters careful consideration.

said both Counsel relied upon, to hold as I do that

peqc ar ov tia 1 'oe pudamen' Poreat ef ty Mr Jue Fue. bl