R v William Moore Gould Kerr, Fire Commissioner; Ex Parte: William Joseph Rummery [1987] ACTSC 2 (23 January 1987)

SUPREME COURT OF THE ACT

THE QUEEN v. WILLIAM MOORE GOULD KERR, FIRE COMMISSIONER; Ex parte: WILLIAM
JOSEPH RUMMERY
S.C. No. 1403 of 1985
Perogative Writ

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Prerogative Writ - Mandamus - A.C.T. Fire Brigade - Officer acting informally as Commissioner - Holding also unrevoked delegation of Commissioner's relevant powers - Notification in March 1984 by then Acting Commissioner to Secretary of responsible Department that he considered certain promotions beyond existing establishment necessary - No response - Permanent appointment of Commissioner with effect from 22 October 1984 announced 8 October 1984 - Officer acting informally as Commissioner returning to duty on 8 October 1984 and advising on 10 October 1984 that he intended to make those promotions - Promotions purportedly made - Failure by newly appointed Commissioner to confirm promotions - Prosecutor promoted in consequence of more senior promotions - Order nisi not sought until 11 December 1985 - Whether purported promotions reasonable in circumstances - Whether delay constituted bar to exercise of discretion to make order absolute - Alternative remedy sought - Whether it also a bar.

Fire Brigade (Administration) Ordinance 1974 - Ss.3, 4, 11, 12, 13, 15(1), 29, 32, 33.

HEARING

CANBERRA
23:1:1987

ORDER

The Order Nisi made on 12 December 1985 be discharged.

DECISION

On 12 December 1985 an order was made in this Court calling upon the respondent Commissioner to show cause why a writ of mandamus should not issue to compel him to confirm the provisional promotion of the prosecutor pursuant to s.33 (5) of the Fire Brigade (Administration) Ordinance 1974 (the Ordinance). Counsel for the respondent concedes that the prosecutor has standing to bring the proceedings.

2. The relevant provisions of the Ordinance are in the following terms:-

"3. In this Ordinance, unless the contrary

intention appears -

"Commissioner" means the Fire Commissioner
appointed under section 4 or a person
appointed under section 11 to act in the
office of Commissioner;"

"4. There shall be a Fire Commissioner, who
shall be appointed by the Minister.

5.(1) Subject to this Ordinance, the
Commissioner holds office for such period,
not exceeding 7 years, as is specified in the
instrument of his appointment and on such
terms and conditions as the Minister
determines, but is eligible for
re-appointment.

(2) Nothing in sub-section (1) authorizes the
Minister to determine conditions relating to
superannuation."

"11.(1) Where -

(a) there is a vacancy in the office of the
Commissioner; or

(b) the Commissioner is, or is expected to
be, absent from duty,

the Minister may appoint a person to act in
the office of Commissioner until the filling
of the vacancy or during the absence, as the
case may be, but a person so appointed by
reason of a vacancy in the office of
Commissioner shall not act in that office for
a continuous period of more than 6 months.

(2) Where a person has been appointed under
this section to act in the office of
Commissioner otherwise than during a vacancy
in that office and the person who holds that
office ceased to hold office during the
period of appointment, the appointment shall
be deemed to continue until it is terminated
by the Minister or until the expiration of
six months from the date on which the
Commissioner ceases to hold office, whichever
first happens.

(3) The Minister may at any time terminate an
appointment under this section.

(4) Sections 7 and 8 apply in relation to a
person appointed under this section to act in
the office of Commissioner in like manner as
they apply in relation to the Commissioner.

(5) Subject to this section, a person
appointed under this section to act in the
office of Commissioner holds office on such
terms and conditions as the Minister
determines.

(6) A person appointed under this section to
act in the office of Commissioner has all the
functions, powers and duties of the
Commissioner under this Ordinance.

12. Subject to this Ordinance, the
Commissioner shall, under the direction of
the Minister, be charged with the general
control and management of the Fire Brigade.

13. The Commissioner may, from time to time,
in writing, issue such general orders and
instructions as are necessary to secure the
good government and efficient working of the
Brigade."

"15.(1) The Commissioner may, by instrument
in writing under his hand, delegate to a
member of the Brigade, either generally or
otherwise as provided by the instrument of
delegation, all or any of his powers under
this Ordinance except this power of
delegation."

"29.(1) Subject to this Ordinance, the
Commissioner may, by instrument in writing
under his hand -

(a) promote an officer to a higher rank; and

(b) promote a fireman to a rank of officer
or to a higher rank as fireman.

(2) The Commissioner shall not promote an
officer or a fireman to a rank unless the
officer or fireman is eligible in accordance
with the regulations for promotion to that
rank.

(3) The Commissioner shall, in accordance
with the general orders, notify members of
the promotion of a member under sub-section
(1)."

"32. The promotion of a member -

(a) is provisional and without increased
salary pending confirmation of the
promotion; and

(b) is subject to appeal in accordance with
this Division.

33.(1) A member who considers that he should
have been promoted in preference to the
member provisionally promoted may appeal,
within a period of 2 weeks from the date on
which the promotion is notified in accordance
with sub-section 29 (3), against the
provisional promotion on the ground of equal
efficiency and seniority.

(2) Upon an appeal or appeals being made
against a provisional promotion, a Promotions
Appeal Tribunal specified by the Minister
shall make full inquiry into the claims of
the appellant or appellants and the claims of
the member provisionally promoted and
determine the appeal or appeals.

(3) Where an appeal is allowed, the
Commissioner shall cancel the provisional
promotion and promote the appellant to the
rank concerned.

(4) Where the Commissioner promotes a member
under sub-section (3), the promotion shall be
deemed to date from the date on which the
promotion of the member against whom the
appellant successfully appealed was notified
in accordance with sub-section 29 (3).

(5) Where, in respect of a provisional
promotion, no appeal is duly made, or all
appeals that have been made are disallowed or
have become inoperative, the Commissioner
shall confirm the provisional promotion.

(6) For the purposes of this section, an
appeal is inoperative if -

(a) the appeal is withdrawn;

(b) the appellant ceased to be a member; or

(c) the appellant ceased to be eligible for
promotion to the rank concerned."

3. As appears from his affidavit sworn 11 December 1985, the prosecutor was provisionally promoted to the rank of District Officer in the Australian Capital Territory Fire Brigade (the Brigade) by Phillip Raymond Donoghoe on 17 October 1984. A photocopy of the instrument purporting to effect that promotion (under paragraph 29 (1)(b) of the Ordinance) was annexed to that affidavit. The provisional promotion was to take effect from 18 October 1984. At the time the prosecutor was eligible for promotion to the position of District Officer under s.29 (2) of the Ordinance. He has carried out the duties and been paid the salary of a District Officer from 18 October 1984.

4. On 21 November 1980 the then Minister of State for the Capital Territory, acting in pursuance of s.4 of the Ordinance, appointed Donald Williamson to be Fire Commissioner and, in pursuance of s.5 of the Ordinance, specified that he should hold office as Fire Commissioner subject to the Ordinance for a period of seven years commencing on 22 November 1980 and ending on 21 November 1987.

5. On 21 April 1983 Mr Williamson absented himself from duty on medical grounds and remained absent until 29 July 1983.

6. By instrument of appointment dated 29 April 1983 the Minister of State for Territories and Local Government, acting under s.11 (1) of the Ordinance, appointed Edward George Stokes to act in the office of Fire Commissioner for the period commencing on 29 April 1983 and ending when the Fire Commissioner resumed duty.

7. On 17 June 1983 the Minister, acting again under s.11 (1) of the Ordinance, appointed Mr Donoghoe to act in the office of Fire Commissioner for the period commencing 17 June 1983. That appointment was revoked by instrument executed by the Minister on 28 June 1983.

8. Meantime, on 14 June 1983, Mr Stokes delegated all his powers under the Ordinance except his power of delegation to Phillip Raymond Donoghoe. That delegation remained in force until 9 May 1985 when it was revoked by the respondent Fire Commissioner who had been appointed to that position on 8 October 1984 for a period of three years commencing on 22 October 1984.

9. The background to the dispute appears clearly enough from a letter which Mr Stokes, then acting Fire Commissioner, wrote to the Secretary, Department of Territories on 5 March 1984. In that letter he referred to the fact that the establishment of the Australian Capital Territory Fire Brigade provided for only one superintendent who is responsible for the daily running of the Brigade as well as numerous other duties including that of assisting the Fire Commissioner. It would appear from that letter that in 1976 the position of superintendent was filled by Mr Williamson referred to above. At that time there were approximately 110 - 120 members of the Brigade. Mr Stokes said that at the time of writing there were 220 members and it was expected that its growth would continue through the year with the projected Fire Station for the Wanniassa area in 1986.

10. Mr Stokes began his letter by saying that due to the workload on the Fire Commissioner and Superintendent it was difficult to have meetings and formulate policies. These should be the duties of a planning and policy advisory committee responsible to a Fire Commissioner. He outlined the difficulties then obtaining in the administration of the Brigade and referred to threats of industrial action.

11. He made reference to a report known as the "Standing Committee on City Management Report No.9". That report expressed the opinion that the operational efficiency of the Brigade would be improved by the appointment of two additional Superintendents. The committee expressed concern at the failure of the Brigade's senior administrative structure to keep pace with the growth in size of the Brigade and its belief that the managerial requirements of the Brigade would be best served by an initial increase in the number of Superintendents from one officer to three and by the creation of the position of a Deputy Commissioner as the most senior ranking officer.

12. The committee expressed the view that the proposed appointment of a Deputy Commissioner would achieve the Department's aim of relieving the Commissioner of an unmanageable workload and would enable greater attention to be paid to the policy and strategic aspects of the Brigade's operation.

13. The committee went on to state its belief that the operational efficiency of the Brigade would be improved by the apportionment of the Brigade's fire fighting responsibilities between three Superintendents responsible respectively for -

(a) staff development and training and communication
and equipment;

(b) fire prevention; and

(c) fire fighting and personnel.

The Standing Committee recommended:-

"That there be an initial appointment of two
further officers at the Superintendent level,
i.e. an initial increase in the number of
Superintendents to three, to enable
specialisation in the fire prevention,
training, personnel and equipment areas."

14. Mr Stokes' letter then went on to refer to the National Command Course 1985 and to the fact that that course was limited to personnel of the rank of Superintendent and above. At that time only one Superintendent could attend. It is not clear from the letter whether that refers to the fact that there was only one Superintendent appointed in the Australian Capital Territory Fire Brigade or to other constraints not mentioned. Mr Stokes then referred to the Standing Committee's belief that management training should be given priority at all officer levels. He referred to the fact that with the impending retirement of the Fire Commissioner, Mr Williamson, it was essential that at least two senior officers from the A.C.T. Fire Brigade should attend in 1985. He adverted to the fact that there were problems of accommodation in respect of the appointment of two additional superintendents.

15. Mr Stokes then went on to say that under the Ordinance he could promote two District Officers to the rank of Superintendent if he considered it to be necessary for the efficient operation of the Brigade and he intended to do so as a matter of urgency so that he might have assistance in carrying out his duties more efficiently and in formulating policy in line with the Standing Committee's report which was made in July 1983. He referred to the fact that the ideal situation would be to have four Superintendents to carry out the duties competently. He said,

"The future appointment of a Superintendent
for this position would have to be
considered."

He was referring, I think, to the position of Superintendent charged with staff development and training, communications and equipment.

16. Legislation has been passed (Ordinance No. 21 of 1982) to provide for the appointment of a Deputy Commissioner but it had not been brought into operation and no Deputy Commissioner had been appointed. The terms of such an appointment and the qualifications required of such an appointee had not therefore been established.

Mr Stokes concluded his letter by saying:-

"I am submitting the foregoing specific
matter to comply with the policy as set out
in accordance with the requirements in
correspondence from the Minister to the Fire
Commissioner 18.3.1975.

Your early consideration and reply in this
matter would be appreciated."

17. There was no response to that letter which raised matters which seem to me to have been of considerable importance to the efficient operation of the Brigade.

18. It is common ground that the delegation granted Phillip Raymond Donoghoe by Edward George Stokes on 14 June 1983 was in force throughout October 1984.

19. On 10 October 1984 Mr P.R. Donoghoe, describing himself as Acting Fire Commissioner, wrote to the Secretary of the Department of Territories and Local Government referring to the urgent need for additional Superintendents in the Australian Capital Territory Fire Brigade and, in particular, to Mr Stokes' letter of 5 March 1984. In the letter he advised:-

"Since this matter has not received
attention, it is my intention to promote
members to fill Superintendent positions
identified in the report. These are:-

Staff Development and Training
Communications and Equipment
Fire Prevention
Firefighting and Personnel

The members who will be assigned to these
positions are:-

Superintendent E.G. Stokes
District Officer P.R. Donoghoe
District Officer G.M. McDonald
District Officer R.E. Towns

The above members will be taking up duty as
from Thursday 0800 hours 18 October 1984. A
copy of the Personnel Memorandum notifying
the promotions is attached.

Supplementary promotions to the existing
positions vacated by the above members will
be actioned in the usual manner."

20. On 17 October 1984, by instrument under his hand, Mr Donoghoe promoted District Officers Towns and McDonald and himself to the higher rank of Superintendent as from 18 October 1984. As a consequence he promoted as an action "in the usual manner" the prosecutor to the higher rank of District Officer. He had, on 10 October 1984, circulated two memoranda giving notice of the promotions to be effected from 0800 hours 18 October 1984. These notifications, of course, anticipated the actual promotions all of which took place on 17 October 1984 but in giving the notifications Mr Donoghoe was concerned to advise personnel of the Fire Brigade so that they might appeal against the promotions which, pursuant to the provisions of ss.32 and 33 of the Ordinance, were effectively provisional.

21. When Mr Donoghoe took the actions he did in October 1984 he had not been appointed Acting Fire Commissioner although he described himself so. Mr Glen David McDonald had been appointed to act as Fire Commissioner from 5 p.m. on 3 August 1984 until the position of Fire Commissioner was filled. There had been changes in the acting senior management of the Brigade from, it would seem, May 1984 until October 1984. What happened was that Mr Donoghoe had arranged to go overseas for a period of seven or eight weeks leave intending to return to duties about mid-July. He understood that at the time of his return Mr Stokes was going to take leave and that he would replace him. Mr Stokes subsequently took leave when Mr McDonald replaced him on 3 August 1984. Unfortunately Mr Donoghoe discovered that he had a cancerous condition for which he entered hospital on 20 May 1984. He returned to duty on 8 October 1984. It would appear, therefore, that one of his very first actions on taking up duty again was to write the letter of 10 October 1984 to which I have referred at length.

22. When Mr Donoghoe described himself as Acting Fire Commissioner he was describing the position which existed in fact since he was the senior officer of the Brigade at the time. On the date he returned to duty, 8 October 1984, Mr Kerr's appointment as Fire Commissioner was announced. It is common knowledge in the Australian Capital Territory that the appointment did not meet with the approval of the Brigade.

23. It is to be noted that Mr Stokes made no attempt to promote officers to the positions to which they were eventually appointed by Mr Donoghoe during the period between 5 March 1984 and 3 August 1984, nor did Mr McDonald. Mr Donoghoe described his attitude towards the failure by the Department to respond to the recommendations made by Mr Stokes and himself as one of frustration but, as I accept, not of defiance. Mr Donoghoe conceded that he had not considered the minute from the Minister to the Fire Commissioner dated 18 March 1975. It is not possible to comment on the relevance of that minute since neither side sought to tender it.

24. In essence, therefore, the situation was as follows:-

(a) Mr Donoghoe was well aware of the attempts to have
increased the number of Superintendents in the
Brigade;

(b) forthwith upon taking up the de facto position of
Acting Fire Commissioner on 8 October 1984 he took
action with a view to promoting officers to the
various ranks of Superintendent, District Officer
and Station Officer;

(c) in seeking to promote three officers to the rank
of Superintendent, there being already one officer
of that rank, Mr Stokes, he went beyond the
recommendation which had been made by the Standing
Committee without any apparent support from the
report by the Standing Committee, acting purely on
the basis that he considered it best in the
interests of the Brigade;

(d) he acted in reliance upon the delegation which had
been given him by Mr Stokes on 14 June 1983 and
which had never been revoked;

(e) he did not, however, purport to act pursuant to
that delegation but executed the several
instruments concerned as Acting Fire Commissioner;

(f) he purported to promote himself to the rank of
Superintendent.

25. It was common ground, and I accept for the purposes of this action, being content, with respect, to follow the judgment of Neaves J in the Federal Court of Australia in Kelly v. Watson & Ors. (1985) 64 ALR 113 that the delegation under which Mr Donoghoe acted remained in force notwithstanding the termination of the appointment of Mr Stokes who had granted the delegation to Mr Donoghoe.

26. One other matter of fact needs to be dealt with.

27. An industrial dispute between the Brigade and the Minister of State for Territories and Local Government was notified to the Australian Conciliation and Arbitration Commission. The first hearing in relation to the matter which was numbered C No.5721 of 1985 took place on Tuesday, 7 May 1985. On 4 July 1985 Mr Commissioner Bain of the Commission found that an industrial dispute existed within the meaning of the Conciliation and Arbitration Act 1904. On the latter date the learned Commissioner said:-

"Since we were last on record I have
conferred with the parties privately and I
would indicate at this stage that I am
satisfied that a dispute within the meaning
of the Conciliation and Arbitration Act does
exist, and I do so find. That dispute, of
course, is between the Federal Firefighters
Union and the Department of Territories. It
is with regard to promotion."

28. Counsel for the respondent Commissioner first submitted that in the exercise of the discretion reposed in the Court the Order Nisi should be discharged. He referred to Ex parte Ozone Theatres [1949] HCA 33; (1949) 78 CLR 389, particularly at p 400 where the Court said:-

"The writ of mandamus is not a writ of right
nor is it issued as of course. There are
well recognized grounds upon which the court
may, in its discretion, withhold the remedy.

For example the writ may not be granted if a
more convenient and satisfactory remedy
exists, if no useful result could ensue, if
the party has been guilty of unwarrantable
delay . . ."

29. Counsel referred to the delay of some fourteen months before an Order Nisi was sought and said that that delay was unwarrantable in the circumstances. See also Ansell v. Wells [1982] FCA 186; (1982) 43 ALR 41.

30. Counsel also referred to the fact that an alternative method of seeking redress was adopted by the prosecutor since proceedings were begun in the Conciliation and Arbitration Commission in May and continued to July since when nothing further had happened. Counsel submitted that the taking of proceedings in the Conciliation and Arbitration Commission amounted to an election to pursue one of two inconsistent remedies. See R. v. Transport Regulation Board; ex parte Maine Carrying Co. Pty. Ltd. (1940) VLR 19. At p 34, O'Bryan J said:-

"However, the applicant is met with
difficulties of another nature. These
difficulties arise from its delay in seeking
the writ of mandamus, a delay coupled with
conduct which in my opinion amounted to an
election not to pursue the remedy of
mandamus. Delay alone would not affect its
right to the writ, unless the delay was
unreasonable, and unreasonableness must be
tested by a regard to all the circumstances
of the case."

31. I am persuaded that the arguments put by counsel for the respondent Commissioner are correct and that in the exercise of the appropriate discretion the Order Nisi should be discharged.

32. If I be wrong in that view of the discretion, I take the view that the purported exercise of the power to promote by Mr Donoghoe was unreasonable. Those who were formally charged with the duty of acting as Fire Commissioner had considered the matter beforehand. Witness the letter of Mr Stokes of 5 March 1984 to the Secretary of the Department of Territories and Local Government. Mr McDonald, following Mr Stokes in the term of the office, took no action either. Immediately upon his return to work after a lengthy illness, Mr Donoghoe purported to take the action which he did. His description of himself as frustrated seems to me to indicate fairly that what he did was done unreasonably having regard to the circumstances, particularly that of the impending appointment of Mr Kerr to the position of Fire Commissioner. It would surely have been reasonable that a new incumbent of the position should be permitted to consider the matter in consultation with the appropriate authorities who would have responsibility for the provision of the necessary funds which the reorganisation, and it amounted to that, of the Fire Brigade would require.

33. Two significant features which contributed to rendering the conduct of Mr Donoghoe unreasonable were first that he acted outside the recommendations of the Standing Committee in appointing three officers, including himself, to the rank of Superintendent and, secondly, that his promotion of himself seems to me to have been unreasonable. The recommendation made by the Standing Committee made it clear that while it viewed the appointment of a third superintendent as desirable it was not part of its recommendation at the time. I accept, of course, that had any one else lawfully made the promotions, there would have been no difficulty about it, the structure of the Fire Brigade being what it was, but Mr Donoghoe, in my opinion, failed to recognise that in promoting himself he was not acting as a prudent administrator should when acting reasonably.

34. In all the circumstances, therefore, I think that the Order Nisi ought to be discharged.