Administrative Law - natural justice - penalty - Board receiving adverse report on availability of other positions and the officer's suitability for them - Board considering report after completing its proceedings - whether failure to hear officer on this aspect a breach of natural justice.

Industrial Law - employment under the Telecommunications Act (1975) (Cth.) - misconduct of officers - procedure of the Disciplinary Appeals Board established under that Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth.), ss. 5, 16

Telecommunications Act ss. 57(2), 58(1)(d), 58(11), 58(15), 62(5), 62(6), 63.

Telecommunications Regulations Regulations 19 and 24.

The decision of the Disciplinary Appeal Board be quashed with effect from the date of the decision of the Board.

The matter be remitted to a Disciplinary Appeal Board constituted with different members thereof.

The first respondent pay the applicant's costs of and incidental to these proceedings, to be taxed, if not agreed.

There be no order as to the reserved costs of either party.

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

This is an application for an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).

2. The applicant, Mr. Barnes, had been charged with six charges under s.58(1)(d) of the Telecommunications Act 1975 (the Act), and the charges had been dealt with as called for by the Act. He had been found guilty of each of those charges and dismissed from his employment. He appealed to a Disciplinary Appeal Board established under s.63 of the Act, which board set aside the pecuniary penalties in relation to two of the charges, and in relation to the remaining four charges, dismissed the appeals.

3. It is from that decision of the Disciplinary Appeal Board that this application is brought. The second, third and fourth respondents constituted the Disciplinary Appeal Board. The third respondent did not appear, and the position of the second and fourth respondents, through their counsel, was to abide by the order of the court.

4. The applicant was employed as a security officer or watchman by the Australian Telecommunications Commission (the Commission). The applicant had held the position of Security Assistant with the Commission since 2 May 1978. He had from March 1980 until April 1983 performed duties in respect of each of the shifts at a major installation of the Commission at Mount Gravatt in Brisbane. He had again worked at the Mt. Gravatt Radio Transmitter Centre in August 1985 on a roster basis up until May 1986, at which time the offences the subject of this application occurred.

5. It appears that his transfer from the Mount Gravatt Radio Transmitter from the commencement of duty on 5 April 1983 was as a consequence of events which had happened in late March of that year. At that time he was admonished by the State Security Officer with regard to three matters, namely: his behaviour at Mt. Gravatt Radio Terminal on 26.3.83; his failures to report to the Shift Leader as directed at 3 a.m., 4 a.m. and 5 a.m. on the following day; andhis standard of dress when interviewed by two of his superiors on 28 March 1983.

"Barnes, by consent, was transferred from Mt

Gravatt Radio Terminal as from commencement of

duty on 5.4.83. It would appear that he has been

under some strain due to his failure to allocate

portions of his daytime hours to sleeping and

gives the impression of being very nervous. There

would be some doubt that what was said to him

penetrated. From discussion, it would likewise

appear that he has 'personality clashes' over

trivial matters with both his fellow Security

Assistants and certain members of the Technical

Staff of the Radio Terminal.

It was agreed that he would remain on the 6.05am

to 2.00pm shift on the rear door of C.A.E. for

some 3 months when a further assessment will be

made. This shift is basic Monday to Friday

(except Public Holidays) but attracts a shift

penalty rate."

7. The six charges of having failed to fulfil his duty as an officer arose out of events which all occurred on the weekend of 24-25 May 1986 and were preferred against Mr. Barnes on 9 July 1986 by the then State Security Officer. The first two charges were:-

"Charge 1

'On Saturday, 24 May 1986, at approximately 3.00

a.m., while on duty at the Mt Gravatt Radio

Transmitter, contrary to the requirements of his

duties, he failed to contact his officer-in-charge

by telephone, his officer-in-charge being the

Security Assistant Grade 3 (Shift Leader) on duty

at the Edison Telephone Exchange at that time on

that date.'

Charge 2

'Contrary to the requirements of his duties, on

Saturday, 24 May 1986, between the hours of

approximately 3.00 a.m. and approximately 3.17

a.m., the Appellant was absent from his position

of duty at the Mt Gravatt Radio Transmitter

without the express permission of his

officer-in-charge or any other person employed by

the Commission and having the authority to give

such permission.'"

8. In respect of each of these charges the authorised officer determined that the appellant be transferred and his salary be reduced.

"Charge 3

'On Sunday, 25 May 1986, while rostered on duty at

the Mt Gravatt Radio Transmitter, the Appellant

availed of a meal break between the hours of

approximately 1.57 a.m. and 2.33 a.m. without the

permission of his officer-in-charge and contrary

to an instruction given him by that officer, one

Albert Athol Kindelan, acting Security Assistant

Grade 3 (Shift Leader).'

Charge 4

'Contrary to the requirements of his duties,,

Sunday, 25 May 1986, between the hours of

approximately 1.57 a.m. and 2.33 a.m., the

Appellant was absent from his place of duty at the

Mt Gravatt Radio Transmitter without the express

permission of his officer-in-charge or any other

person employed by the Commission having the

authority to give such permission.'

Charge 5

'Contrary to an instruction given him on 25 May

1986 by Maurice Henry Beard, Security Assistant

Grade 3 (Shift Leader), Security and Investigation

Branch, an officer authorised to give such a

direction, the Appellant did not report for duty

at the Edison Telephone Exchange at 6.09 a.m. on

26 May 1986.'

Charge 6

'On Monday, 26 May 1986, between the hours of 6.09

a.m. and approximately 1.30 p.m., the Appellant

was absent from his place of duty at the Edison

Telephone Exchange without the express permission

of his officer-in-charge or any other person

employed by the Commission and having the

authority to give such permission.'

In respect of these four charges, the authorised officer found the charges proved and determined in respect of each charge that Mr. Barnes be dismissed from the service of the Commission.

10. The Notice of Appeal under s.62 of the Act against the original decisions made on the six charges, in each case was on the grounds that "(1) I am innocent of the charge; and (2) the penalty is too severe."

11. In lengthy reasons for decision of some 100 pages, the Board, by a majority, found each of the six charges proved and decided that no penalty should be imposed in respect of the first two charges and that the decision of the delegate dismissing Mr. Barnes from the service of the Commission in respect of charges 3 - 6 inclusive should not be disturbed. It accordingly determined that the action taken by the delegate in respect of those charges be confirmed. The officer's nomineee on the Board found none of the charges proved.

12. The application for order of review raises two broad complaints. The first is that, at the hearing by the Disciplinary Appeal Board, evidence relating to proof of the charges and evidence relating to penalty were heard together and, as a consequence, Mr. Barnes was deprived of being heard on the specific courses of punishment being considered. It was submitted on his behalf that, having regard to the statutory framework and the statutory obligations of the Disciplinary Appeal Board, the question of whether the charges were proved ought to have been considered first, and then further submissions on the alternative penalties should have been entertained if the charges had been made out. The submission necessarily has to have regard to the significance of s.62(6) of the Telecommunications Act 1975 in the scheme of things. This is a matter to which consideration will be given later.

13. The second broad area of complaint is that there was a denial of natural justice to the applicant (vide s.5(1)(a) of the ADJR Act) in the way the Board reached its findings as to penalty.

14. The proceedings before the Disciplinary Appeal Board occurred on 23, 24, 25 March and 2, 3 April 1987. After those proceedings had ended, the Chairman of the Disciplinary Appeal Board requested Mr. Michael Kennedy, who had been secretary to the Board, to compile for use by the members of the Board a list of positions for which the applicant was qualified and which had a lower classification than formerly held by him. Mr. Kennedy was told by the Chairman, Mr. Douglas Smith, that he proposed conferring with the other members of the Board on about 4 May 1987.

15. On that day Mr. Kennedy supplied to the Board a list headed "NOMINALLY VACANT POSITIONS LOWER THAN ASSISTANT GRADE 2 ($14741-15396) AS AT 4.5.87." In the document were various comments about each of the positions and, on a further page headed "COMMENTS", Mr. Kennedy said:-

"1. The three areas marked with an * are the only

available vacancies.

2. The CA positions in Human Resources would be

considered unsuitable as the positions are

positions of trust which involve handling mail

and Telecom files in an area with access to

confidential material.

3. The Gardener and Labourer positions would also

be considered unsuitable because they involve

working alone with minimal supervision."

Implicit in the comments is the conclusion or opinion of Mr. Kennedy that Mr. Barnes was unsuitable for positions requiring trust or positions where he would work alone with minimal supervision. There is affidavit material disputing the factual correctness of the information contained in Mr. Kennedy's list and comments.

16. On this aspect of the matter, the majority of the Board said:-

"Sometime after the proceedings before the Board

had ended, the members of the Board met again for

a lengthy discussion concerning the penalty which

it would be appropriate to impose. At that time,

pursuant to the provisions of Regulation 19 of the

Telecommunications Regulations, the Board had

before it a list of vacant positions for which the

Appellant might be said to be qualified. There

were remarkably few and it was clear that a

contraction of employment in some areas of the

Commission's operations was taking place. During

that discussion, the Board canvassed the extent of

the obligation, if any, resting on the respondent

Commission to find a place of some kind for the

Appellant. A majority of the Board (the Chairman

and the Commission Nominees) were of the view that

the Commission was under no such obligation.

Whilst conscious of the profound effect such a

decision will have for the Appellant and the

hardship it is likely to entail for him, they were

of the view that the decision of the Delegate

should not be disturbed. In this regard, the

observations of Gray J. in Gregory v. Philip

Morris Pty. Limited (1987/8) 77 ALR 79 at 100

that no employee is 'immune from dismissal' and

that the causes of that dismissal must always be

relevant to the question whether the dismissal

might be said to be unfair, harsh or unreasonable

are pertinent."

17. It was submitted by the applicant that the failure by the Board to allow submissions to be put by him relating to the list, its correctness and significance, constituted in all the circumstances, a denial of natural justice. Counsel for the applicant submitted it is not contested that the Board has a right to obtain such a list, but that once the list was obtained the applicant had a right to put submissions before the Board before a final decision was made. This is more strongly the case having regard to the 'COMMENTS' of Mr. Kennedy accompanying the list.

18. It was also said that the Board had formed the view that a contraction of employment in some areas of the Commission's operations was taking place and that the Commission had no obligation to find a place of some kind for Mr. Barnes. It was said that the Commission did have such an obligation if the Board found that a transfer or demotion under s.58(9) was a suitable penalty and that, in the approach that it took to this aspect of the matter, had confused its powers with the obligations of the Commission if the appropriate orders were made allowing the appeal and ordering that Mr. Barnes be demoted.

19. Since no issue has been taken with the finding by the Board that the charges were proved, it is appropriate to set out some of the factual findings of the Board.

20. The Board found that at all relevant times the Mount Gravatt Radio Transmitter was considered by the Commission to be the single most important telecommunications facility in the State and that, as a consequence, officers of the Security and Investigation Branch were assigned to duty there on a 24 hours, 7 days a week basis. The Assistant on duty at that facility was required throughout his shift to call his shift leader at the Edison Telephone Exchange at hourly intervals.

21. Those regular calls served two purposes: they were an integral part of the procedures designed to ensure the security of the installation and as a check upon the personal safety and welfare of the Assistant on duty at any time.

22. The Board found that Mr. Barnes was thoroughly familiar with and experienced in all aspects of the duties and procedures pertaining to his post at Mount Gravatt. It found that Mr. Barnes did not enjoy a good relationship with two of his superior officers, both of whom regarded him as a pedant and a persistent complainer. Security Assistants at Mount Gravatt were paid an allowance in lieu of a meal break during their shift at one and a half times the ordinary rate. The Board found that that arrangement had contractual force. It found that "...throughout the entire period of his service at Mt. Gravatt, the Appellant had accepted those payments and understood perfectly well why they were paid to him."

23. Mr. Barnes had, during his absence on the relevant weekend, visited a close friend living in the vicinity of the Mt. Gravatt facility, who was suffering a very serious illness. The Board found in respect of this aspect of the matter:-

"The Board accepts the evidence given by the

Appellant concerning the gravity of the disease

suffered by his friend who lives in the vicinity

of the Mt Gravatt Station. It also accepts that

one of the treatments commonly used in an attempt

to arrest the progress of that disease can have

the most distressing consequences for both

sufferer, family and friends. The Appellant's

evidence in that regard was not seriously

challenged by the respondent Commission. It is,

however, perfectly clear that there was no

pressing need for the Appellant to visit her on

the night in question. He conceded that he had

never previously made such a visit whilst on duty

at Mt Gravatt. And he also conceded that his

insistence on visiting his friend owed something

to his desire 'to get up Mr. Kindelan's nose.'

Finally, he made a further concession. He

regretted his actions in that regard and, with the

benefit of hindsight, knew that he should not have

reacted in that way."

24. The provisions relating to "dismissals and punishments" in the Act are to be found in Part V, Division 6, ss. 57-64. Sections 57(2) and 58(1)(a) relevantly provide:-

"57.(2) In this Division, a reference to

misconduct, in relation to an officer, is a

reference to a failure of the officer to fulfil

his duty as an officer.

...

58.(1) For the purposes of this Division, an

officer shall be taken to have failed to fulfil

his duty as an officer if and only if -

...

(d) he is guilty of improper conduct as an

officer;

..."

Section 58(3) provides for the charging of an officer, and s.58(5) requires there to be an inquiry into the charge if an officer is charged with misconduct. Section 58(9) specifies what may be done when the officer who held an inquiry is satisfied that the officer charged has failed to fulfil his duty as an officer and, amongst other powers, permits him to recommend to the Commission in writing that the officer be transferred, either to a position of the same classification and salary or to a position with a lower classification and salary, or to recommend in writing that the Commission dismiss the officer from the Service. Section 58(11) relevantly provides:

"58.(11) Where an officer makes a recommendation

specified in paragraph (9)(d) in respect of an

officer, the Commission may, after consideration

of the particulars furnished under sub-section

(10) counsel the officer, or, if it considers that

other action is necessary -

(a) ...

(b) decide -

(i) to give effect to the recommendation;

..."

25. A decision made by the Commission pursuant to that section does not take effect if the officer appeals against the decision unless a Disciplinary Appeal Board confirms the decision (s.58(15)).

26. An officer has, by s.62 of the Act, a right of appeal against a direction or decision made or given under s.58 of the Act. Section 62(5) provides:-

"62.(5) A Disciplinary Appeal Board shall hear each

appeal submitted to it under sub-section (1) and

may confirm, vary or set aside the direction or

decision against which the appeal is made."

Section 62(6) provides:-

"62.(6) Where an officer appeals under sub-section (1)

against a direction or decision on the ground that

the action to be taken in accordance with that

direction or decision is excessively severe,

evidence may be given on the hearing of the appeal -

(a) if the officer was, under section 59,

suspended without salary prior to the giving

of that direction or the making of that

decision - of any loss of earnings arising

from that suspension;

(b) if the officer is to be transferred to

another position - of the expenses that will

be incurred by the officer in connexion with

that transfer; and

(c) of matters relating to the previous

employment history and general character of

the appellant."

27. Regulation 19 of the Telecommunications Regulations provides:-

"Subject to these Regulations, in the hearing of a

disciplinary appeal by a Disciplinary Appeal Board

-

(a) the Board may inform itself in such manner

as it thinks fit;

(b) the procedure to be followed shall be as

determined by the Board;

(c) The Board is not bound by the rules of

evidence; and

(d) the Board shall proceed without regard to

legal forms or solemnities."

Regulation 24 of the Telecommunications Regulations provides:-

"(1) Copies of all documents intended to be used at

the hearing of a disciplinary appeal shall,

where practicable, be furnished to the

appellant by the Commission not later than 7

days before the date fixed for the

commencement of the hearing.

(2) Where a copy of a document intended to be used

at the hearing of a disciplinary appeal is not

furnished to the appellant in accordance with

sub-regulation (1), he is entitled to inspect

that document."

28. An appellant to a Disciplinary Appeal Board is entitled to natural justice, as Regulation 24 indicates. It was common ground before the Board that the proceedings before it involved a hearing de novo of the charges against Mr. Barnes.

29. As Everett J. noted in Munnings v. Smith (1986) 20 IR 264 at 272:-

"Section 62(3) of the Act empowers a Board to take

evidence. Section 62(4) is the basis for

regulations to be made prescribing the manner in

which the hearing of appeals shall be conducted,

including provision for, among other things, the

summoning of witnesses and the production of

documents. Regulation 19 of the

Telecommunications Regulations gives effect in

wide terms to s.62(4). The consequence is that

the evidence and material properly received by a

Disciplinary Appeal Board may be very different

from that considered by the officer who conducted

the initial inquiry. The clear intention of

Parliament was to confer a right of appeal which

was not trammelled by the scope of the initial

inquiry. The ambit of such right may be

considerably increased in cases in which the

appeal raises the question of the severity of the

penalty (s.62(6)(c) of the Act)."

30. The proceedings before the Disciplinary Appeal Board were not conducted on the basis of an inquiry first into whether the charges had been established and then, and only then, as to what was the appropriate penalty. Material was led on both aspects in a single proceeding.

31. The solicitor acting for Mr. Barnes before the Disciplinary Appeal Board said:-

"The remaining matter which I wish to address you

on is the matter of penalty and that's really on

the basis that the tribunal finds against me on

all the other points. Unfortunately the way these

cases are conducted, unlike say a criminal case,

you have to intertwine it all together and I

suppose by way of the wide discretion given you

under the Act to take in evidence it's almost

inevitable that it has to be dealt with in that

way."

32. On the question of penalty or severity, the solicitor for the Commission had submitted to the Board:-

"We've also heard evidence that there are no

positions available for either transfer or

promotion but, in any event, as I've mentioned,

the question of transfer or the possibility of

transfer or promotion, was considered but

specifically rejected, particularly considering

the charges relating to absenting himself on the

Sunday night.

The evidence shows that Mr. Bridgland, Mr.

Butters, Mr. Symonds, all made consistent

recommendations that dismissal was the only

appropriate penalty and, of course, the

recommendation by Mr. Bridgland was ultimately

accepted by the state manager.

In my submission, there has not been any evidence

adduced to this board to the contrary to show that

dismissal in particular was not the appropriate

penalty."

33. In my opinion, the fact that the Board did not proceed first to consider the question of whether the charges had been made out and then move on to consider the question of penalty, but received submissions from both parties concerning penalty at the same time as submissions concerning whether the charges had been made out or not, does not involve a denial of natural justice nor constitute, in the circumstances of this case, an appellable error.

34. It seems to me clearly desirable that, where there is an inquiry directed both to whether an offence has been made out and, if so, what is the appropriate penalty or penalties, to proceed, as a court ordinarily would, to determine the question of liability before addressing the question of penalty. However, failing to proceed in that fashion is not a breach of the rules of natural justice, if in truth a person has been given an opportunity to address on penalty, should the Board come to a conclusion adverse to him on the question of guilt.

35. In Freedman v. Petty [1981] VicRp 90; (1981) VR 1001 at 1030, Marks J. said:-

"It was contended for the plaintiff that the Board

denied natural justice to the plaintiff in failing

to give him an opportunity to be heard on the

question of penalty. In Hall v. New South Wales

Trotting Club Limited, (1977) 1 NSWLR 378 the

majority held that deprivation of such an

opportunity rendered a disqualification by

stewards invalid and void: see also Calvin v.

Carr, (1977) 2 NSWLR 308, at p 337; Fisher

v. Kaine (1878), 11 Ch D 353, at p 363. In

Barr v. Victorian Football Association

(unreported, 5 June 1979) Jenkinson, J. failed to

be persuaded that the circumstances of that case

dictated a similar result.

Consistent with what I have observed elsewhere I

doubt if the rules of natural justice compel

automatic vitiation of a penalty imposed without

separate hearing on the question. Circumstances

in particular cases such as those with which

Jenkinson, J. was concerned may show that in

effect fair cognizance of the relevant matters had

been taken at an earlier point than the actual

pronouncement of decision and penalty. Further,

circumstances in a particular case may show that

the offender expressly or impliedly indicated he

did not wish to be so heard."

36. In Hall v. New South Wales Trotting Club Ltd. (1977) 1 NSWLR 378, Hutley J.A. said at 382:-

"The duty of a domestic tribunal to hear the

accused is not, in my opinion, fully performed by

hearing him on part of the case. Once there is a

finding of guilt, the stewards must consider the

penalty. The penalties which may be inflicted are

set out in r. 10(i) and may be severe. The person

found guilty cannot really address until he knows

of what he has been found guilty. I am prepared

to assume in this case that the steweards found

Hall guilty of all the various acts of misconduct

which had been referred to in the court of the

inquiry, and that he understood that. This did

not dispense with the duty of the stewards to hear

him on the question of penalty. There was much

that could have been said on that question....It

is clear from the record that they did not seem to

recognize any duty to provide him with the

opportunity."

"I assume that a person entitled to a hearing can

agree to dispense with it..."

But he concluded that Hall had not waived his right to be heard on penalty. At 383 he said:-

"It is difficult to see how, when liability is in

issue, a court could ever anticipate the result if

a proper hearing had been given, but where

liability is conceded or has been found, there may

be cases where a court could say that no advocacy

could produce a lesser penalty. This may be the

justification for the decision of Pennycuick V.C.

in Glynn v. Keele University (1971) 1 WLR 487;

(1971) 2 All ER 89."

37. Samuels J.A., at 391, agreed with the opinion of Hutley J.A. on this aspect of the case.

38. In McRitchie v. Greyhound Racing Control Board (noted in The Australian Industrial Law Review of 24 November 1982, Case 533), Powell J., in the context of an alleged failure to allow the opportunity to address on penalty, said:-

"Since...the plaintiff was offered an opportunity

to address on the question of penalty if a finding

adverse to him were made, this attack cannot be

sustained unless it be the law that such an

opportunity must be awarded after the making of

any adverse finding and before the imposition of

any penalty. While, in the context provided by

trials in the Courts, such a procedure is the

norm, I do not consider that the rules of natural

justice require that there must always be a

separate hearing on penalty; nor, although the

steward's failure to receive submissions on the

question of penalty was the basis for the decision

of the majority in that case, I do not consider

that the decision of the Court of Appeal in Hall

v. NSW Trotting Club Limited lays down any such

rigid rule - my view appears to be shared by Marks

J. (Freedman v. Petty [1981] VicRp 90; (1981) VR 1001 at p 1030)

and by Jenkinson J. (Barr v. Victorian Football

Association, unreported, 5/6/79) of the Supreme

Court of Victoria."

The requirement of natural justice in relation to penalty

39. That the Disciplinary Board viewed the matter seriously

is not to be doubted. Towards the end of its reasons it said:-

"The Appellant had demonstrated all too clearly

that he could not be trusted to see out his shift

at Mt. Gravatt."

"It also finds that the penalties imposed in

respect of the charges numbered 3 to 6 inclusive,

namely, in each case, dismissal from the service

of the Commission, had not been excessively

severe."

"The evidence made it absolutely clear that the

Commission no longer had confidence that the

Appellant could perform all duties which might

normally be allotted to him. The fact that it

acted with compassion in placing him somewhere

until the outcome of his appeal had been

determined in order to lessen the inevitable

hardship and dislocation which loss of salary

would entail should not later be held against the

Commission."

40. Of the document prepared by Mr. Kennedy and the opinions of Mr. Kennedy as to the suitability or otherwise of Mr. Barnes to fill certain of those positions, Mrs. Maureen Parker, the Secretary of the Queensland Branch of the Australian Public Service Association, says that she first became aware of the documents after the Board had delivered its decision in August 1987. She says that the documents were never mentioned at any stage during the appeal hearing. She says:-

"...from my extensive experience in dealing with

personnel matters with Telecom in Queensland I

find difficulty in accepting that the information

contained in the document entitled 'Nominally

Vacant Positions Lower Than Clerical Grade (2)

($14,741 - $15,396) as at 4.5.87' was a complete

and accurate statement as at that date of all of

the positions that would have been vacant and

suitable to be filled by Mr. Barnes. Telecom has

an extremely high turnover of staff in

classifications at or about this pay scale. On

the basis of my understanding of personnel matters

in Telecom I believe that numerous other positions

could have been vacant on 4 May, 1987 and

certainly would have become vacant between that

time and the date of publication of the majority

decision in the Disciplinary Appeals Board.

If the document in question had been tabled by the

First Defendant during the Disciplinary Appeals

Board Hearing and thereby become available to Mr.

Barnes and to my organisation it would have been

possible to undertake investigations through Union

Delegates and otherwise to establish whether the

document was an exhaustive statement of the

positions available within the range in question

and to investigate the reasons given in the

document for Mr. Barnes' alleged unsuitability.

The organisation and Mr. Barnes would then have

been in a position to instruct his solicitor on

appropriate submissions as to the facts involved

in addressing arguments to the Board on the

relevance of the document and the weight that

should be attached to it."

41. The Board, when considering what penalty to impose, sought information from Mr. Kennedy. The information supplied by Mr. Kennedy clearly had an important bearing on the conclusion reached by the Board. That material contained comments and opinion by Mr. Kennedy quite adverse to Mr. Barnes and indicated a situation of very limited availability of appropriate positions. That conclusion is strongly challenged by Mrs. Parker in her affidavit. This further material was not disclosed to Mr. Barnes, who consequently had no opportunity to answer it, and was directly relevant to the question of penalty.

42. In Review of Administrative Action , Aronson and Franklin, Law Book Company 1987, the learned authors say at p 186:-

"Unlike proceedings in a court of law,

decision-makers may, and should, draw on their own

expertise and research rather than rely

exclusively on the evidence and arguments

presented to them. In order to reconcile this

function with the principle that participants in a

hearing be given a fair opportunity to comment on

the relevant issues and controvert any adverse

material, a distinction is drawn between on the

one hand, 'the special knowledge of the tribunal

(which) cannot be separated from it and is part of

the equipment of the tribunal' and, on the other

hand, 'evidence of matters as to which it has

informed itself or of documents under its

control', citing R. v. Milk Board; Ex parte

Tomkins [1944] VicLawRp 38; (1944) VLR 187 at 197, 193 per Lowe J..

Material in the latter category - that is to say,

factual material acquired for the purpose of, or

in the course of, the particular proceedings -

should be disclosed. It is well established that

decision-makers cannot use undisclosed reports,

citing R. v. Westminster Assessment Committee; Ex

parte Grosvenor House (Park Lane) Ltd. (1941) 1

KB 53; R. v. Metropolitan Fair Rents Board; Ex

parte Canestra [1961] VicRp 16; (1961) VR 89; Kanda v. Government

of Malaya [1962] UKPC 2; (1962) AC 322; Denton v. Auckland City

(1969) NZLR 256; James Aviation Ltd. v. Air

Services Licensing Appeal Authority (1979) 1

NZLR 481; Ian Croad Autos Ltd. v. Retail Motor

Trade Association Inc. (1979) 2 NZLR 80;

Lambourne v. Commercial and Private Agents Board

(1980) 23 SASR 475. Disclosure should also be

made where they undertake their own investigations

or research, citing R. v. Deputy Industrial

Injuries Commissioner; Ex parte Moore (1965) 1

QB 456; Slapjums v. City of Knox (No. 2) (1978)

[1978] VicRp 52; 38 LGRA 98; R. v. Criminal Injuries

Compensation Board; Ex parte Ince (1973) 1 WLR

1334 at 1344-1345; R. v. Immigration Appeal

Tribunal; Ex parte Patel The Times, 15 February

1984; Re Egglestone and Mousseau and Advisory

Review Board (1983) 150 DLR (3d) 86."

43. In my opinion, failure to give to Mr. Barnes the opportunity to answer this material or deal with it constitutes a denial of natural justice to him.

44. Mason J., as he then was, in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 582, stated the principle:-

"It is a fundamental rule of the common law

doctrine of natural justice expressed in

traditional terms that, generally speaking, when

an order is to be made which will deprive a person

of some right or interest or the legitimate

expectation of a benefit, he is entitled to know

the case sought to be made against him and to be

given an opportunity of replying to it: (Twist v.

Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106

at p 109; Salemi (No.2) [1977] HCA 26; (1977) 137 CLR 396 at

p 419; Ratu [1977] HCA 35; (1977) 137 CLR 461 at p 476;

Heatley v. Tasmanian Racing and Gaming Commission

[1977] HCA 39; (1977) 137 CLR 487 at pp 498-499; F.A.I.

Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342

at pp 360, 376-377; Annamunthodo v. Oilfields

Workers' Trade Union (1961) AC 945). The

reference to 'right or interest' in this

formulation must be understood as relating to

personal liberty, status, preservation of

livelihood and reputation, as well as to

proprietary rights and interests."

"...if in fact the decision-maker intends to reject

the application by reference to some consideration

personal to the applicant on the basis of

information obtained from another source which has

not been dealt with by the applicant in his

application there may be a case for saying that

procedural fairness requires that he be given an

opportunity of responding to the matter: In re

H.K. (An Infant) (1967) 2 QB 617."

45. In Colpitts v. Australian Telecommunications Commission (1985-6) 9 FCR 52, Burchett J. was concerned with a decision by which Mr. Colpitts was retired from the Australian Telecommunications Commission, pursuant to s.56 of the Act. The Review Tribunal in that case was found by his Honour to have denied Mr. Colpitts natural justice by receiving material adverse to his case without giving him any opportunity to make submissions in respect of it. Burchett J. said at p 70:-

"In Daganayasi v. Minister of Immigration (1980) 2

NZLR 130 at 143 Cooke J. said: 'The appellant

should have a fair opportunity of correcting or

contradicting any relevant statement prejudicial

to his or her view.' (See also De Verteuil v.

Knaggs (1918) AC 557 at 560-561; Ansell v. Wells

[1982] FCA 186; (1982) 63 FLR 127 at 151; Dixon v. Commonwealth

[1981] FCA 77; (1981) 55 FLR 34 at 40-41 and 48; Re Gosling

(1943) 43 SR (NSW) 313 at 317.) In R. v.

Gaming Board for Great Britain; Ex p Benaim &

Khaida [1970] EWCA Civ 7; (1970) 2 QB 417 at 430, Lord Denning,

with the agreement of Lord Wilberforce and

Phillimore L.J., contrasted what is required in

considering the issue of a certificate for a

gaming house with the higher obligation in a case

such as the present: 'But I do not think that they

need quote chapter and verse against him as if

they were dismissing him from an office, as in

Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40; or depriving him

of his property, as in Cooper v. Wandsworth Board

of Works [1863] EngR 424; (1863) 14 CBNS 180.' In Re Pergamon

Press Ltd. (1971) 1 Ch 388 at 400 Lord Denning

said:

'For I take it to be axiomatic that the

inspectors must not use the evidence of a

witness so as to make it the basis of an

adverse finding unless they give the party

affected sufficient information to enable

him to deal with it.'

In Wiseman v. Borneman (1971) AC 297 a right to

see and reply to a counter-statement lodged in

answer to a claim was denied only by reason of the

special nature of the proceedings which led to no

final determination; see per Lord Reid at 308.

In Kanda v. Government of Malaya [1962] UKPC 2; (1962) AC 322

at 337, after reiterating that 'whoever has to

adjudicate must not hear evidence or receive

representations from one side behind the back of

the other', Lord Denning said: 'The court will not

inquire whether the evidence or representations

did work to his prejudice. Sufficient that they

might do so.' In the present case, I have already

indicated my view that there was actual prejudice

in what occurred. But that the decision would be

vitiated, even without proof of any actual

prejudice, is shown by Kanda's case and also by

General Medical Council v. Spackman (1943) AC

627 at 644-645, per Lord Wright; Hamblin v. Duffy

(No.2) [1981] FCA 108; (1981) 55 FLR 228 at 241-242; Ridge v.

Baldwin (supra) at 68; Annamunthodo v. Oilfields

Workers' Trade Union (1961) AC 945 at 956; and

Kioa's case (supra) especially per Wilson J. and

Deane J.

There was undoubtedly, upon the face of the

material before the Tribunal, much to be said

against Mr. Colpitts. But it would be a complete

misunderstanding of the principles of natural

justice to regard that fact as in any way

weakening the case for their application. The

principles of natural justice are designed to

ensure that the voice of the defence is heard,

which is never more necessary than when the

Tribunal is in danger of feeling that defence

would be useless: see Kioa's case, per Deane J.

In the present case, error of law and denial of

natural justice left areas of available or

possible defence unexplored, either by the

delegate, or by the Review Tribunal. Furthermore,

the duty to accord natural justice is a duty owed,

not merely to a party, but to the integrity of the

institution of administration or review. This is

the essence of the citation which Dixon C.J. and

Webb J. made in Commissioner of Police v. Tanos

[1958] HCA 6; (1958) 98 CLR 383 at 395 from Seneca's Medea:

though one who has judged without hearing the

other side may have reached a just conclusion, he

has certainly not been just. It is because the

principle has been universally recognised as being

at the core of a judgment worthy of respect that

it is appropriate to call it a principle of

natural justice: see the discussion in de Smith,

Judicial Review of Administrative Action (4th

ed.), 156-158: 'The law's first duty', Goethe

asserted in his Faust Pt.2, is 'to hear the

accused'.

46. I have quoted at length from the observations of Burchett J. in Colpitts because his remarks are particularly apposite in the present matter.

47. I am conscious of the serious nature of the conduct of Mr. Barnes reflected in the six charges dealing with the events of the weekend of 24-25 May 1986. However, the decision of the Board in respect of its hearing of the appeal concerning those charges is seriously tainted by the denial to Mr. Barnes of the right to be heard. It was submitted on the Commission's behalf that, having regard to the relative importance of the impugned conduct in the decision-making process, the Court should, as a matter of discretion under s.16 of the ADJR Act, decline to interfere. The departure from the requirements of natural justice was, in my view, so serious, and on such an important aspect of the Board's function, that it is by no means certain that the same conclusion would necessarily follow if Mr. Barnes had been given the opportunity of being heard on the matters in Mr. Kennedy's material, and, as I indicated above, there are wider considerations involved.

48. I set aside the decision of the Board. I will hear the parties as to the form of order I should make. The Commission should pay Mr. Barnes's costs, to be taxed.