SCOTT-YOUNG v G.R.E.A.T.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Friday 31 August 2001 Breck SCOTT-YOUNG v REGISTRAR OF THE GOVERNMENT AND RELATED EMPLOYEES APPEAL TRIBUNAL AND ANOR

JUDGMENT 1 MASON P: The Appellant is a sergeant of police based in Albury. He was unsuccessful in his application for a promotion to the position of duty officer, level 1, Tuggerah Lakes Local Area Command Inspector. The successful applicant was Sergeant Paul Baker. 2 The appellant appealed to the Government and Related Employees Appeal Tribunal. The right of appeal is given by s 81C of the Police Service Act 1990 and that section states that the only ground on which the appeal may be made is that the merit of the appellant is greater than that of the other police officer. 3 On the presently unchallenged facts before us it would appear that on 4 July 2000 the appellant learnt that his and other appeals had been set down for hearing before the Tribunal in Sydney on 17 and 18 July 2000. A notice of hearing issued on behalf of the Registrar of the Tribunal confirmed this (AB 8). 4 The appellant had a difficulty on Monday 17 July because he was required to attend Albury Local Court and give evidence in a matter in which he was the informant. He promptly rang the Tribunal on 5 July and spoke to a female staff member. He told her about his difficulties and asked for his appeal to be last in the list and heard on the second day. The lady said that she would make inquiries and ring him back. There were two further phone conversations that day in which the lady said that she was still waiting to speak to the Chairman. Eventually after 4pm that day the appellant received a telephone call from the lady who said: I have spoken to the chairman and he said you can attend on the Tuesday morning but you must be aware that you will not be able to hear the submission of the nominated person. The appellant said "that's okay".

5 The appellant then made appropriate travel arrangements to fly from Albury to Sydney on the evening of Monday 17 July. On 17 July he gave evidence in the Local Court proceedings at Albury. No one contacted him from the Tribunal. He flew to Sydney as arranged in the evening. 6 He went to the Tribunal at about 9.30am on Tuesday 18 July. According to his affidavit: [I] waited in the foyer for a short while, however as no other persons were present I checked the notice board and saw there were no entries for appeals on that day. I inquired of the Registry and spoke to a female who I describe as early twenties, medium height, about 5 ft 7" tall of solid build with brown hair. I said to this person "I am here for an appeal against Paul Baker, can you tell me when it will start?". She said "I will check." She went to the back of the Registry and returned a short time later. She said "The appeal was heard and determined yesterday." I said "How can that be? I had arranged to attend this morning to present my appeal in the matter." She said "When did you arrange this?" I said "About two weeks ago I rang and spoke to a lady here and she made arrangements with the Chairman for me to appear on the second day because of a Court commitment I had in Albury on Monday. She said "I will check." She left the window and I saw her checking a file and went to the back of the office and returned about fifteen minutes later. She said "I have checked the file and they must have misplaced that information, I have spoken to the Chairman and there were a number of withdrawals and they thought you had withdrawn and heard the appeal on your application and you were unsuccessful, I am sorry." I said "Is there anything I can do about it, I had arranged to attend on the second day.". She said "No, the appeal has been determined, I am sorry." I left the GREAT.

7 The formal decision of the Tribunal that is in evidence was published on 3 August 2000. I infer that it is a corrected record of reasons delivered on 17 July. It deals with two appeals against Sergeant Baker's promotion, one of them being the appellant's appeal; and three appeals against the promotion of Sergeant Furlonger to another position. The Commissioner of Police is shown in the record of the Tribunal as the respondent to each appeal. 8 The appeals were obviously heard concurrently or sequentially because one of the appellants in each matter was the same person and possibly also because the successful applicant in the second matter, that is Sergeant Furlonger, had been one of the applicants for the Baker position. 9 The Tribunal decided to disallow each of the appeals. In the Decision it held that the evidence did not satisfy it to the requisite degree that any appellant was more entitled to be appointed to one of the vacant positions than the respective nominated officers. The decision assesses the comparative merit of the various appellants and those recommended for promotion, that is Sergeant Baker and Sergeant Furlonger. The Tribunal concluded that no appellant had succeeded in discharging the relevant onus of showing greater aptitude than the respective nominated officers. 10 It is clear that the Tribunal considered the appellant's comparative merit on the basis of the documentary material presented to it by the Tribunal, (see p3 of the Decision). It is significant, however, that the Decision records the following: Sergeant Scott-Young did not appeal(sic) at the hearing. There was nothing on file to explain his absence. The nominated officer against whom he appeals has requested that we proceed with the appeal. We decided to do so on the basis of the documentary material before us.

11 Later in its reasons the Tribunal made various findings referrable to the appellant adding: In the absence of further evidence going to merit we do not finding this appellant competitive for the appointment.

12 Subsequent to 18 July the appellant's solicitors wrote to the Tribunal contending that the appellant had been denied procedural fairness. The Registrar was invited to reconvene the Tribunal to enable the appellant to present his appeal viva voce. However, the Acting Registrar wrote to the appellant's solicitors on 25 July 2000 indicating the view of the Chairman of the Tribunal that the Tribunal was functus officio. In these circumstances, the appellant appealed to this Court, his right of appeal being on a question of law. 13 Initially there were two respondents to the appeal, the Registrar of the Tribunal and the Commissioner of Police. At some stage the Registrar was removed as a party to the appeal. The Commissioner of Police remained a party and I would add, it would appear properly so. However, he indicated at quite an early stage that a submitting stance would be adopted. 14 A few days ago the Registrar at my request wrote to the parties indicating that the Court wished to have the assistance of submissions on the issue of whether the appeal was properly constituted in view of the absence of Sergeant Paul Baker as a party. The Court is grateful that Mr Redfern has attended at short notice on behalf of the Commissioner of Police and we have been assisted by his submissions and the submissions of counsel for the appellant. 15 Although it was contended that the proceedings are properly and sufficiently constituted I am of the view that the Court simply cannot proceed in the absence of Sergeant Baker. Although the facts that I have referred to, if they remained unchallenged, suggest a strong case for relief based on denial of procedural fairness, the fact is that the person whose interests are affected by our decision is Sergeant Baker. It would be a sad irony if an appeal based upon a contention that there was a lack of procedural fairness was itself conducted in circumstances that amounted to a denial of procedure fairness to a relevant person. 16 The Court was informed that Sergeant Baker has been appointed temporarily to the position that was the subject of the proceedings in the Tribunal, that appointment being pursuant to s 66(1) of the Police Service Act 1990. In recording this I am not suggesting in any way that it affects his entitlement to procedural fairness in the current appeal. 17 In my view Part 51 rule 9 to which we were taken does not override the common law of procedural fairness. Indeed I think the Court's power to add parties to the appeal which is referred to in that rule is entirely consonant with the Court having a duty to ensure that procedural fairness is done to affected persons in a proper case. 18 There are decisions in which appeals have been brought by persons who are not parties to proceedings below, see for example Australian Securities Commission v Ampolex Limited (1995) 38 NSWLR 504, Witness v Marsden (2000) 49 NSWLR 429. 19 For these reasons I am of the view that the Court should make the following orders: (1) Order that Paul Baker be joined as a respondent to the appeal. (2) Direct the appellant to serve copies of the appeal books and of these reasons for judgment upon Paul Baker within seven days. (3) Matter to be listed in the first Registrar's callover in October. 20 I have set out the facts at some length in these reasons so that the newly joined party can be able to understand the presently unchallenged material in support of the appeal. This will assist him in deciding what stance to adopt in the appeal. 21 I do not intend this in any way in terrorem or as in indicating any concluded view on the matter. However, this is a situation where the Commissioner of Police has decided to submit. If the matter proceeds as a contested appeal then the contending appellant and newly joined respondent would each be at risk as to costs. It will be entirely a matter for Sergeant Baker. If he decides that this is a case where the relief sought by the appellant ought to be granted then it will be open to him to file a submitting appearance and thereby to avoid any substantial costs. It would still be necessary for the case to be heard and determined, given the Court's practice in dealing with administrative law challenges to decisions of inferior courts and tribunals,4 but obviously any further hearing will be shortened to the extent that the Court will have the assistance of these reasons. The orders which I propose are therefore as I have indicated. 22 GILES JA: I agree with what the President has said and with the orders he proposes with the following brief additional observations. 23 The appellant submitted that the appeal to this Court was properly constituted because the relevant parties before the Tribunal, that is, the appellant and the Commissioner of Police, were parties to the appeal. The premise was that within Pt 51 r9 the appellant and the Commissioner of Police were parties and the relevant parties before the Tribunal. Nothing in the Police Service Act or the Government and Related Employees Appeal Tribunal Act appears to talk of parties to proceedings before the Tribunal. Section 37 of the latter Act confers a right to be present and heard on, amongst others, the employee in the position of Sergeant Baker in the present case. Realistically Sergeant Baker was a party to the proceedings before the Tribunal even though not named as such in the formal record, and he did in fact appear and was heard. 24 It is, however, a rather sterile debate over the meaning of the word "party", because in any event (as the President has said) this Court has a responsibility to ensure that persons affected in appropriate cases are heard in an appeal to it. For the reasons his Honour has given, the orders proposed should be made so that Sergeant Baker has that opportunity. 25 STUDDERT AJA: I also agree with the orders proposed by the President for the reasons he has expressed. 26 MASON P: Gentlemen, just before I pronounce the formal orders it may well be that we don't have Mr Redfern the next time. Is there any agreement as to what costs order would be made in the appeal assuming there was no problem about parties? 27 SEE: We haven't discussed it at all your Honour. 28 MASON P: I only mention that because it seems to me that there might be a live dispute on the next occasion if Sergeant Baker doesn't present himself as an opponent against whom an order for costs can be made. But if there's been no discussion I simply mention the matter so that you might think about it at the appropriate stage. 29 REDFERN: Your Honour I might indicate on that as I recall, and I note that my friend's instructing solicitor is here and I haven't gone through my file completely, but I seem to recall there was some discussion at least at the level of solicitors that in making the submitting appearance there would be no application for costs against the Commissioner of Police at the appeal and unless that position is changed I think with respect it stands. 30 MASON P: The orders of the Court will be as I have indicated.

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