Federal Court of Australia|1992-12-04|Before: Doussa J, Hill J, Keely J

Re David James Roderick v Australian and Overseas Telecommunications Corporation Limited [1992] FCA 596; (1992) 111 ALR 355 (1992) 39 FCR 134 (1992) 29 ALD 445 (Extract) (4 December 1992)

And: AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LIMITED

Administrative Law- rules of natural justice - review of termination of appointment - appellant afforded opportunity of making submissions after considering reports of own supervisors but excluded from being present thereafter when supervisors gave oral evidence at the hearing - whether exclusion and inability to cross-examine denial of natural justice.

Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5, 629, considered and followed.

O'Rourke v Miller [1985] HCA 24; (1984) 156 CLR 342, considered.

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1962) 113 CLR 475, considered.

Mayor, Councillors and Citizens of the City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1987) VR 54 at 61, considered.

1. The appeal be allowed and the order made by von Doussa J. be set aside.

2. The decision of the Review Tribunal be set aside.

3. The matter be remitted to a differently constituted Review Tribunal to be determined in accordance with law.

4. The respondents to pay the costs of the proceedings before von Doussa J.

5. There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

KEELY J. In this appeal I have had the advantage of reading the reasons for judgment prepared by Hill J. I agree with the orders proposed by him and with his reasons for judgment.

HILL J: The appellant, David James Roderick, appeals against the decision of a judge of this Court, von Doussa J., dismissing Mr Roderick's application to this Court for judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").

2. Mr Roderick's application as initially filed sought review of a number of decisions and of conduct said to be engaged in by the respondent, Australian Telecommunications Corporation Ltd ("Telecom"). Before us only one decision was in dispute, namely, a decision made on 21 February 1991 which had the effect of bringing Mr Roderick's employment with Telecom to an end on 22 February 1991.

3. Telecom filed an objection to competency on the basis that the decision in question was not a decision to which the ADJR Act applied. That matter was decided adversely to Telecom as a preliminary matter and no appeal was brought by Telecom against that decision, nor is the matter the subject of a notice of contention before us.

4. The facts are not substantially in dispute. On 28 August 1989 Mr Roderick applied to Telecom for permanent employment as a radio lineman. He was advised by letter of his appointment on 18 September 1989 and took up that appointment on 25 September in that year. The letter offering Mr Roderick appointment made it clear that he was appointed on probation and that confirmation of that appointment was subject to his health and physical fitness being of acceptable standards as well as satisfactory performance on the job. At the same time, Mr Roderick received a booklet entitled "Conditions of Employment" which summarised the provisions of s.40 of the Telecommunications Act 1975 which Act relevantly set out the terms and conditions of employment applicable to him, notwithstanding its repeal by the Telecommunications Amendment Act 1988. It is unnecessary to set out here the statutory regime making s.40 applicable to an employee such as Mr Roderick and bringing about the result that the Telecommunications Commission became the Australian Telecommunications Corporation Ltd. It is dealt with in my judgment in Marr v Australian Telecommunications Corporation [1991] FCA 661; (1991) 105 ALR 647 at 651-653. Section 40, as it appeared in the Telecommunications Act 1975 was in the following terms:

"40.(1) Unless the Commission, in a particular

case, otherwise directs, the appointment of

every officer shall be on probation for a period

of 6 months commencing on the day on which the

officer commences duties in pursuance of his

appointment.

(2) A person appointed as an officer on

probation remains a probationer until his

appointment is confirmed or terminated in

accordance with this section.

(3) The Commission may, at any time during the

period of 6 months, terminate the appointment.

(4) As soon as practicable after the expiration

of the period of 6 months, the Commission shall

-

(a) confirm the appointment;

(b) terminate the appointment; or

(c) direct that the probationer continue on

probation for such further period (not

being a period exceeding 6 months) as the

Commission determines.

(5) Where the Commission directs that a

probationer continue on probation for a further

period, the Commission may confirm or terminate

the appointment of the probationer at any time

during that further period and, if it does not

confirm or terminate the appointment before the

expiration of that period, shall do so as soon

as practicable after the expiration of that

period.

(6) Where the appointment of a probationer is

to be terminated, the Commission shall notify

the probationer in writing of the reasons for

the termination of the probation.

(7) The regulations shall make provision for

and in relation to the review of a decision of

the Commission under paragraph (4)(b)."

5. As a result of the restructuring of the relevant award, Mr Roderick's job title was changed, on or about 8 December 1989, to that of Communications Officer, Grade 2. On 5 January 1990, Telecom forwarded to Mr Roderick a letter purporting to be an offer of an appointment on probation as a Communications Officer, Class 2. That letter notes that his employment had commenced on 25 September 1989. It asked him to complete and return a form indicating his acceptance. It appears that the purpose of this letter related to the fact that Mr Roderick had not become a member of Telecom's superannuation scheme at the time he had originally commenced employment, as a result of an oversight. Von Doussa J. made no findings as to whether the purpose of Telecom, in forwarding the letter, was made known to Mr Roderick.

6. On 16 February 1990, Mr Roderick received from Telecom a letter dated 16 February 1990 which, so far as is relevant, read:

"APPOINTMENT ADVICE

TELEPHONE ------

AREA CODE ------

REFERENCE ------

DATE 16/02/90 Australian Government

Service (AGS) Number: 3912387

To Mr D. RODERICK

50 SHANDON AVE

SEATON

SA 5023

I am pleased to advise that you have been appointed as a

permanent officer of the AUSTRALIAN TELECOMMUNICATIONS

CORPORATION. All details relating to your Appointment are

outlined below:

----------------------------------------------------

APPOINTMENT DETAILS

APPOINTED AS: COMMUNICATIONS OFFICER GRADE 2

DATE OF PERMANENT APPOINTMENT05/01/90

POSITION NUMBER 172510

POSITION STATUS E (E - established)

U (U - Unattached)

EMPLOYMENT STATUS PF (PF- Permanent Full

Time)

(MP- Permanent Part

Time)

DATE OF EFFECT 05/01/90

LOCATION OF APPOINTED POSITION... (details given)

----------------------------------------------------

If you have just commenced, please note your AGS Number (top

RH corner) as you may need to quote this in relation to any

employment or pay enquiries.

As a permanent officer, you are required to contribute to

the Australian Government Superannuation scheme (minimum 5

percent of salary). This money will be automatically

deducted from your pay in due course.

If you have any enquiries regarding this advice, please

contact your personnel unit on the above telephone number.

---------------(signature)

(Delegated Officer)"

7. Inferentially, the purpose of this letter was to confirm the acceptance of the offer of employment made on 5 January 1990. It presumably also was written having regard to the membership of Mr Roderick in the Australian Government Superannuation Scheme.

8. Some days later, Mr Roderick received from Telecom a letter informing him that his superannuation contributions were in arrears and that deductions would be made from his salary to bring them up to date, commencing on the pay period ended 15 March 1990. That letter was apparently intended by Telecom to advise Mr Roderick that he had become a member of the superannuation scheme. This intention is not clear from the text of the letter.

9. On 21 June 1990, Telecom purported to terminate Mr Roderick's employment on the ground that that employment was subject to a probationary period, confirmation of which was dependent, inter alia, upon a satisfactory Conduct Diligence and Efficiency Report. It was Telecom's view that despite counselling this condition had not been satisfied.

10. Mr Roderick sought to have this decision reviewed by a Review Tribunal. Mr Roderick contended that his employment was no longer probationary, as confirmation of it had occurred on or about 16 February 1990. This matter was then investigated and, because of the delay, the decision of 21 June 1990 was revoked on 12 September 1990. Ultimately, Telecom notified Mr Roderick that his employment was terminated with effect from the close of business on 19 November 1990. Mr Roderick then, by letter dated 7 November 1990, exercised his right to have that decision to terminate his employment reviewed by a Review Tribunal. That Review was undertaken by a Tribunal constituted in Adelaide which held a hearing on 12, 13 and 18 February 1991. Ultimately, the Tribunal determined that Telecom's decision to annul Mr Roderick's appointment was correct. Telecom thereupon advised Mr Roderick that his employment with Telecom was terminated with effect from 22 February 1991.

11. Mr Roderick's application to this Court raised a large number of matters. Only two of these matters were proceeded with on appeal. The first was whether Mr Roderick's initial probationary appointment had been confirmed. The second was whether the Review Tribunal had afforded to Mr Roderick natural justice, in that it had, so Mr Roderick asserted, denied him the right to be present when certain witnesses had been examined and to cross-examine them.

Whether Mr Roderick's probationary appointment had been confirmed

12. Before his Honour and before us, Mr Roderick relied upon the letter of 16 February 1990 as constituting Telecom's act of confirmation of his probationary status. It was not suggested that there was any other act which Mr Roderick could rely upon as indicating that Telecom had confirmed this status.

13. His Honour held, and with respect I agree, that the letter of 16 February 1990 did not constitute confirmation of the probationary appointment. Clearly enough it did not say that Mr Roderick's probationary status was confirmed. What the letter did was to advise Mr Roderick that he had been appointed as a permanent officer of the Corporation in the position Communications Officer, Grade 2, the position which was offered to him in the letter of 5 January 1990. Mr Roderick did not dispute that the Telecommunications Act 1975 governing his appointment made it clear that, notwithstanding that an appointment might be on probation, the appointee was from the time of his probationary appointment the holder of a permanent position: cf The Secretary of the Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 108 ALR 77. The reference in the letter to Mr Roderick's position status being either established or unattached could not be construed and, if it be relevant, was not construed by Mr Roderick as a confirmation of his probationary status. The distinction made in the letter is between a person forming part of, and thereby attached to, a particular establishment on the one hand and a person unattached, on the other. Nor does the material immediately opposite the words "employment status" assist Mr Roderick. Under that heading the distinction is between persons appointed as permanent full time officers and persons appointed as permanent part time officers. The distinction is not between those appointed probationarily and those whose probationary position has been confirmed.

14. In my view the letter of 16 February 1990 could not be construed as an act of Telecom confirming Mr Roderick's probationary status and no other evidence being adduced by Mr Roderick, his first argument must fail.

15. I should say that his Honour considered additionally the question whether Mr Roderick perceived the letter of 16 February 1990 as constituting confirmation of his probationary status and held that he did not. I do not see how Mr Roderick's perception of the situation can be of assistance in determining the objective question whether the letter in fact constituted evidence of Telecom's confirmation of his appointment. But if there were any relevance in the question of the subjective belief of Mr Roderick, then I would not have interfered with his Honour's conclusions. It was based on his Honour's assessment of Mr Roderick's credit.

16. Before dealing with Mr Roderick's submissions concerning whether he had been denied natural justice by the Review Tribunal, it is convenient to outline the statutory background to the exercise of jurisdiction in this case by the Review Tribunal.

17. The Tribunal which reviewed Telecom's decision to terminate Mr Roderick's appointment was a Review Board established under a Determination made by Telecom, initially by force of paras.6(3) and 7 of the Determination made pursuant to s.38 of the Telecommunications Act 1975 and thereafter by a Determination made pursuant to s.85 of the Australian Telecommunications Corporation Act 1989.

18. In his judgment on the objection to competency, von Doussa J. expressed the view that para.6 of the s.38 Determination provided both the source of power of Telecom to terminate Mr Roderick's employment and a right of a review of a decision to do so. His Honour said:

"A similar power hitherto existed under s.56 of

the 1975 Act, and the regulations, as required

by sub.s.56(2), made provision for a right of

review to a Review Tribunal. The altered terms

of s.56 applied by para.6 of the s.38

Determination substitute the title 'Review

Board' for the reviewing body. But in light of

the terms of paras.3, 6, and 7 in particular, of

the s.38 Determination I consider nothing turns

on this change of name.

The source of power for the decision and its

legal effect would again be the s.85

Determination, and the decision would be one

made under that instrument."

19. Section 40 of the Telecommunications Act 1975 has already been set out. The regulations required by sub-sec.40(7) concerned with the review of decisions of the commission to terminate a probationary appointment were repealed when s.40 was repealed. However, the s.38 Determination provided, in para.5, that s.40 continued in force pursuant to that Determination as if references in sub-sec.40(7) to review of decisions were references to review by a Review Tribunal established in accordance with para.7 of the Determination. Paragraph 7 then provided:

"Where a reference in a term or condition

detailed in paragraph 3 relates to proceedings

instituted or to be instituted before a

Promotions Appeal Board, Disciplinary Appeal

Board or Review Tribunal established under the

Telecommunications Act or the Telecommunications

Regulations, the reference shall be read as a

reference to a Board or Tribunal, however named,

established under a Determination made by the

Corporation under s.38."

20. Paragraph 6 of the Determination dealt, inter alia, with Review Boards and provided:

"(3) There shall be established, as required,

Review Boards, whose function will be to

review decisions of the Corporation and

recommend appropriate action.

A Review Board shall be constituted of:-

(a) a chairperson being a person who performs

the function of a chairperson promotion

appeal board;

(b) an employee nominated by the Corporation

for the purpose of the appeal; and

(c) an employee nominated by the appropriate

staff organisation prescribed under cl.36

of the General Conditions of Employment

Award.

Conduct of Reviews

(4) A Review Board shall exercise its power having

regard to the principles of natural justice."

21. From this, somewhat confused, legislative background, it seems clear that in the case of a probationary employee whose appointment is terminated pursuant to s.40 of the Telecommunications Act 1975, a two-stage procedure operates. The first stage is action taken by the Commission itself under s.40. That action will presumably only be taken after Telecom has investigated the circumstances and determined that the probationary appointee's appointment should be terminated. Telecom is obliged to deliver reasons for that decision in accordance with s.40(7). The employee is then given a right of review to the Review Board, to which the provisions of natural justice apply.

22. Prior to the initial sitting of the Tribunal, Mr Roderick was provided with all reports obtained from his supervisors and these had been discussed with representatives of Telecom. On 13 November 1990, the Tribunal wrote to Mr Roderick informing him of the procedure which it proposed to follow. The letter advised that the Tribunal had written to Telecom seeking a statement of its reasons for the decision to terminate Mr Roderick's employment, a copy of which was to be supplied to him. Mr Roderick was then invited, after receiving the statement, to submit a written supporting statement in relation to Telecom's comments and claims. He was informed the Tribunal would invite him to attend at an oral hearing and that:

"This hearing is a further opportunity for you

to present to the Board any information you wish

and for the Board to ask questions before

reaching their recommendation. The discussion

will be quite informal and you may be assured

that the members of the Board will give you

every assistance in putting your side of the

matter forward."

23. In due course, Telecom provided the Tribunal with its reasons for terminating Mr Roderick's employment. The letter so doing, which was lengthy, annexed copies of all the supervisory reports upon which the Telecom conclusion had been reached.

24. The hearing before the Tribunal commenced on 12 February 1991. Mr Roderick was invited to address the Tribunal. He took with him copies of the supervisors' reports and other documents from Telecom which he considered relevant and gave a separate copy of these papers to the members of the Tribunal. Mr Roderick spoke for some five hours and played an audio cassette of a meeting held on 26 September 1991 at which also he had put forward his side of the story. He was, as von Doussa J. held, given "an unrestricted opportunity to say whatever he wished to say in support of his case". After Mr Roderick had indicated that he had finished his case and said what he wished to say, the Tribunal advised Mr Roderick that it would contact the supervisors whose reports were before it. His Honour found, and the finding was not challenged, that Mr Roderick did not raise the topic of cross-examining the supervisors with the Tribunal. However, his Honour found that it was probable that Mr Roderick did enquire if he would be in attendance when the supervisors were interviewed and was told that he would not. His Honour held that Mr Roderick did not pursue the matter thereafter any further and made no specific request to be present. In so finding, his Honour rejected evidence of Mr Roderick that he had requested the ability to cross-examine the supervisors.

25. Thereafter it appears that at least four supervisors were seen by the members of the Tribunal at the premises where the Tribunal conducted its hearing and that a number of other persons were spoken to by telephone. No record was ever provided to Mr Roderick of the substance of what was said by any of these persons. No transcript was apparently kept. Some notes were taken by members of the Tribunal in their own handwriting and these notes were produced to Mr Roderick's counsel prior to the commencement of cross-examination of the Tribunal members. There was, however, no cross-examination on those notes nor was any cross-examination directed at establishing what actually had happened before the Tribunal at the session which Mr Roderick did not attend. Before us, Mr Roderick invited us to examine a page of these notes. Counsel for Telecom had no objection. In my view, however, as these notes were not in evidence below, it is inappropriate that a tender of them be now accepted. I have, accordingly, not taken them into account in my judgment.

26. The question, therefore, is whether in these circumstances the denial to Mr Roderick of the opportunity to be present while evidence was taken from the supervisors (with or without the opportunity to cross-examine) constitutes a denial to him of procedural fairness (if that is what happened) such as to vitiate the decision made by the Tribunal.

27. His Honour found that it did not. He did so for two reasons. First, his Honour found that Mr Roderick had been given "an unrestricted opportunity to say whatever he wished to say in support of his case". His Honour regarded the treatment afforded to Mr Roderick as generous. Secondly, his Honour said that he accepted the evidence of Mr Cox, that the information gathered by the Tribunal from the persons contacted, "raised no material allegation against Mr Roderick which had not appeared in the supervisors' written reports". No cross-examination was directed by Mr Roderick's counsel to this matter.

28. The actual evidence of Mr Cox, contained in an affidavit, was as follows:

"After the meeting of 12th February 1991 the

Tribunal proceeded to contact supervisors who

had provided Conduct, Diligence and Efficiency

Reports; two of the supervisors from the

Corporation's depot, being those supervisors

mentioned in the affidavit of Mr K. O'Shea; and

the two referees nominated by Mr Roderick. None

of the persons consulted, in my opinion, raised

any new allegation against Mr Roderick which had

not been discussed at the meeting of 12th

February 1991."

29. That affidavit also makes clear what the allegations against Mr Roderick were. Mr Cox, in stating his reasons for supporting the Telecom decision, said:

"Mr Roderick displays lack of respect for his

supervisors, is continually undermining their

authority, is unable to take advice either from

supervisors or his workmates and seems unable to

see the perspective of anyone other than himself

and considers his opinions and ideas on work

methods to be superior to the ones presented in

the Telecom manual... Clearly, through his

period of employment with Telecom, Mr Roderick

has presented a severe problem to his

supervisors and he was at times a safety risk on

the worksites."

30. There is no dispute that the Tribunal was obliged to afford to Mr Roderick procedural fairness. That requirement is contained specifically in para.6(4) of the s.38 Determination. The issue is as to the content of that requirement.

31. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5, Mason J. said:

"... the application and content of the doctrine

of natural justice or the duty to act fairly

depends to a large extent on the construction of

the statute. In Mobil Oil Australia Pty Ltd v

Federal Commissioner of Taxation (1963) 113 CLR

475, at pp 503-4, Kitto J. pointed out that the

obligation to give a fair opportunity to parties

in controversy to correct or contradict

statements prejudicial to their view depends on

'the particular statutory framework'. What is

appropriate in terms of natural justice depends

on the circumstances of the case and they will

include, inter alia, the nature of the inquiry,

the subject-matter, and the rules under which

the decision-maker is acting...

In this respect the expression 'procedural

fairness' more aptly conveys the notion of a

flexible obligation to adopt fair procedures

which are appropriate and adapted to the

circumstances of the particular case. The

statutory power must be exercised fairly, i.e.

in accordance with procedures that are fair to

the individual considered in the light of the

statutory requirements, the interests of the

individual and the interests and purposes,

whether public or private, which the statute

seeks to advance or protect or permits to be

taken into account as legitimate considerations:

cf Selemi v Mackellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396

at 451 per Jacobs J."

32. What a fair procedure will be inevitably must depend upon the nature of the inquiry being undertaken, the rules under which the Tribunal is acting, the circumstances of the case and the subject matter that is being dealt with: cf Russell v Duke of Norfolk (1949) 1 All ER 109 at 118. The comment by Tucker L.J. in that case that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned shall have a reasonable opportunity of presenting his case" may, however, be too broadly expressed; cf per Brennan J. in Kioa v West (supra at 615).

33. In National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, the High Court held that the Commission, when it was investigating the question whether a person had committed an offence against the Companies Act 1981 (Cth) and deciding whether it should make an application to the Supreme Court for certain orders, was not obliged to allow the suspected person and his legal representative to be present throughout the whole of the hearing to cross-examine witnesses, give evidence in reply or make submissions to the Commission. That conclusion was, however, derived, inter alia, from the fact that it was no part of the Commission's function to publish adverse findings or conclusions after the hearing. The Commission was merely acting as an administrative agency: per Gibbs C.J. at 312-3; Brennan J. at 326; Mason, Wilson and Dawson JJ. at 324-5. Another matter of importance in that decision was the fact that the nature of inquiry to be undertaken by the Commission was purely investigatory. By contrast, the present Tribunal did make a finding adverse to Mr Roderick and its function was not purely investigatory.

34. In O'Rourke v Miller [1985] HCA 24; (1984) 156 CLR 342, the High Court held that in the context of a decision by the Commissioner of Police to terminate the services of a probationary constable, where it had been alleged that the constable had engaged in disorderly and drunken conduct and misused his police badge, the content of natural justice required the constable to be informed of what was alleged against him and that he be given a fair opportunity to answer the allegations against him. It did not, however, require that he be permitted to confront or cross-examine those persons who gave evidence to the Commissioner. O'Rourke v Miller differs from the present case, in that the Chief Commissioner was not required to hold a formal hearing. There was no procedure, as in the present case, for a review of a previous decision. Gibbs C.J., with whose judgment Mason J. agreed, said (at 353):

"It was submitted that the appellant should have

been given an opportunity to cross-examine, or

at the very least, to confront, the two girls

who made the complaints. In support of these

submissions we were referred to Barrier Reef

Broadcasting Corporation Pty Ltd v. Staley

(1978) 52 ALJR 493 and Reg v. Board of Visitors

of Hull Prisoners; Ex parte St. Germain (1979) 1

WLR 1401. Those were cases in which there was a

hearing before a Tribunal which refused to allow

the cross-examination of persons who in the one

case had given evidence and in the other had

made hearsay statements and the decisions

depended, as all cases of this kind do, on the

circumstances of the case, the nature of the

inquiry, the rules under which the Tribunal was

acting and the subject matter being dealt

with... Even when there is a hearing before a

Tribunal it does not follow that a person

affected necessarily has a right to cross-examine

witnesses: see National Companies and

Securities Commission v News Corporation Ltd.

Natural justice does not require the application

of fixed or technical rules; it requires

fairness in all the circumstances.

In the present case the Chief Commissioner was

not required to hold a formal hearing or to be

satisfied beyond reasonable doubt that the

appellant had been guilty of the misconduct

alleged before he reached a decision to

terminate the appellant's provisional

appointment. It would be enough if the Chief

Commissioner, having given the appellant a fair

opportunity to be heard, considered in good

faith that the appellant was not fit to occupy

the office of constable or that there was a real

doubt about his suitability."

(Emphasis added)

35. It may be noted that the passage underlined rather suggests that in a case involving the making of a finding adverse to a person affected by a review, the rules of natural justice, at the least, entitle that person to be present.

36. The decision in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1962) 113 CLR 475 that a taxpayer was not entitled to be present to hear evidence given by competitors, in a review of objections to its assessment depended upon the particular nature of the evidence and the provisions of the Income Tax Assessment Act 1936, including s.16, which requires the Commissioner to maintain secrecy of matters disclosed to the Commissioner. On the other hand, it was recognised by Kitto J. in Mobil Oil to be generally true, as the High Court had observed in Sutton v Commissioner of Taxation [1959] HCA 3; (1959) 100 CLR 518 at 524, that:

"Natural justice, it is needless to say, requires

that the taxpayer shall know the course that is

taken and what is placed before the Board."

37. It may also be observed that Kitto J., in Mobil Oil, expressed the view that in the ordinary case, the Taxation Board of Review was not under an obligation to conform to the principles of natural justice, a view which would hardly be likely to commend itself today, at least in the context of the Administrative Appeals Tribunal, the successor to the Taxation Boards of Review.

38. By way of contrast, Aicken J. in Barrier Reef Broadcasting Pty Ltd v Minister for Post and Telecommunications (1978) 19 ALR 425, held that the refusal by the Broadcasting Control Board to permit cross-examination in the circumstances of that case was a denial of natural justice. However, what was there spoken of was a refusal to permit cross-examination to one applicant, where cross-examination had been allowed to others.

39. In the circumstances before Vincent J. in Mayor, Councillors and Citizens of the City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1987) VR 54, it was also held that the refusal to permit cross-examination of a particular witness constituted a denial of natural justice. The context concerned the proceedings of a planning appeals board, constituted pursuant to the provisions of the Town and Country Planning Act 1961 (Vic). His Honour said (at 61):

"It is my view that to deny the objectors an

opportunity to challenge by cross-examination

material of significance to the outcome of the

matter, in the particular circumstances which

existed did constitute a failure to comply with

the rules of natural justice. It must be

understood that this was not simply a situation

in which there was a difference of opinions

between two expert witnesses in the context of a

dispute before an expert Tribunal, which may

well have possessed specialist knowledge or

experience enabling it to deal adequately with

such conflicts... The additional opinions had

been sought by the Tribunal in an endeavour to

ensure that the appellant suffered no injustice

when after consideration of the material

presented by the parties, the Tribunal had

formed the view that it would have been

necessary if the appeal had been decided at that

stage to determine the matter adversely to the

appellant.

This is not to suggest that it would be

necessary for the Board to permit an opportunity

for cross-examination in every situation in

which an issue of credit may arise, but rather

to indicate that the adoption of a blanket

approach to the problem of the type referred to

in the portion of the Chairman's affirmation set

out earlier in this judgment, may well, in some

circumstances result in a failure by the Board

to provide a sufficient opportunity to a party

to challenge or contradict material introduced

against it and thereby create a measure of

procedural unfairness."

40. In determining whether, in the present case, there was an absence of procedural fairness in denying to Mr Roderick the right to be present to hear the supervisors give evidence against him, regard should be had to the purpose for which that evidence was being taken. Each of these persons had already made allegations against Mr Roderick in written form. Mr Roderick had been afforded the opportunity to respond to those written allegations. In addition to factual matters in dispute between Mr Roderick and the supervisors, Mr Roderick had alleged that the supervisors had not given him a "fair go", that their reports were made by collusion and that he was being victimised. It must, therefore, be inferred that the reason the members of the Tribunal wished to hear directly from the supervisors was to test the views of those supervisors, against the views put forward by Mr Roderick, as to the conduct, diligence and efficiency of Mr Roderick as discussed in their reports, as well as to determine whether there had or had not been collusion as alleged by Mr Roderick.

41. In my opinion, when ultimately a question arose as to the credit of the supervisors and when the Tribunal sought to obtain confirmation of matters which those supervisors put against Mr Roderick in respect of his general attitude at work, natural justice required that Mr Roderick, at the least, be afforded the opportunity to be present and at least to be shown a copy of a transcript of the proceedings before the Tribunal. Neither of these opportunities was afforded to him. It may well be that in some circumstances fairness may dictate that an opportunity to cross-examine be afforded when a question of credit arises. It is unnecessary to decide that matter in this case.

42. The problem is met by counsel for Telecom referring to Mr Cox's opinion that no new material allegation was made by the persons who gave evidence. But if there was a requirement that, for justice to be done, Mr Roderick should be present, the fact that it was the opinion of Mr Cox that no new material allegation was made, would, in my view, be irrelevant. The question is not, ultimately, whether the Tribunal was or was not influenced by the evidence that was given by the supervisors in the absence of Mr Roderick. The question lies in the possibility that the Tribunal might have been influenced. Brennan J. in Kioa v West (supra) put the matter, albeit in a slightly different context, in the following words (at 629):

"Nevertheless in the ordinary case where no

problem of confidentiality arises an opportunity

should be given to deal with adverse information

that is credible, relevant and significant to

the decision to be made. It is not sufficient

for the repository of the power to endeavour to

shut information of that kind out of his mind

and to reach a decision without reference to it.

Information of that kind creates a real risk of

prejudice, albeit subconscious, and it is unfair

to deny a person whose interests are likely to

be affected by the decision an opportunity to

deal with the information. He will be neither

consoled nor assured to be told that the

prejudicial information was left out of account."

43. Later on the same page his Honour spoke of a "risk of prejudice" being present.

44. In my view, in the present case there was a risk of prejudice to Mr Roderick in the evidence being given in his absence and it will be no answer to this to say that the Tribunal was of the opinion that it was not affected by the evidence. But that is not what the Tribunal said. Mr Cox merely says that, in his opinion, no new allegation was made, not that the evidence was not taken into account by him. The evidence may have traversed examples of occasions when Mr Roderick's attitude to work was, in the opinion of the supervisor, unsatisfactory, not canvassed in the original report. That would not be a new allegation, yet it might well have been damaging to Mr Roderick.

45. It follows that I am of the view that, natural justice not having been afforded to Mr Roderick, the decision of the Tribunal should be set aside. The appeal be allowed and the order made by von Doussa J. be set aside. The matter should be remitted to a Review Tribunal differently constituted to be determined in accordance with law. I would order that Telecom pay the costs of Mr Roderick below but, as Mr Roderick represented himself I would make no order as to Mr Roderick's costs of the appeal.

O'LOUGHLIN J: I have had the advantage of reading the judgment of Hill J. I agree for the reasons stated by his Honour that this appeal should be allowed.

Telecommunications Corporation Act 1989

Decisions (Judicial Review) Act 1977

Country Planning Act 1961

Tax Assessment Act 1936

Re David James Roderick v Australian and Overseas Telecommunications Corporation Limited [1992] FCA 596;

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Re David James Roderick v Australian and Overseas Telecommunications Corporation Limited [1992] FCA 596; (1992) 111 ALR 355 (1992) 39 FCR 134 (1992) 29 ALD 445 (Extract) (4 December 1992)

Parties

Legislation Cited (5)

Cases Cited (12)